SUPPIAH v. ABDULLA

015-NLR-NLR-V-26-SUPPIAH-v.-ABDULLA.pdf


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Present: Jayewardene A.J.SUPPIAH v. ABDULLA.123—CM. Colombo, 13,882
<Casc settled out of Court—Right of parties to have settlement entered ofrecord, though one party repudiated it—Civil Procedure Code,s. 408.
The plaintiff sued the defendant for rent and for money advanced*While this action was pending, the defendant prosecuted theplaintiff for criminal trespass in the Police Court. The criminalcase was settled, and it was recorded that if the complainantpaid the rent due, accused was to withdraw, the civil case. OnMarch 6, the case came before the Commissioner, and was Axed forApril 7 for settlement or judgment. The plaintiff denied that thecase was settled, and defendant asked for an inquiry into thematter. The Commissioner refused to hold an inquiry, on theground that if one of the parties repudiated the settlement beforeit was recorded by the Court, the Court could not give effect to it. ,
Held, that the settlement was binding on the parties.
1924.
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1024.
Suppiah v.Abdulla
T? HE facts are set out in the judgment.
Obeyesekere (with him Mewyn Fomeka), for defendant, appellant.
H. V. Perera, for plaintiff, respondent.
July 3, 1924. Jaybwardene A.J.—
This is an action between a landlord and his tenant. The land-lord sued the tenant to recover arrears of rent and also a certain?sum of money advanced to. the tenant by the landlord, which formedthe second cause of action. While the action was pending, but before 'answer was filed, the tenant, on February 25, 1924, criminallyprosecuted the landlord for criminal trespass, criminal intimidation,and abuse. The case was adjourned from time to time, and onMarch 4 the following settlement was arrived at: "Now settled,complainant withdraws case. Accused to allow complainant toremain in the house till 5th proximo (that is, April 5), on payment*of arrears of rent,. If the complainant pays the rent due, accusedwill withdraw the case without costs.” Answer in the case had to be*filed on March 6, and on that day there was an entry made to thefollowing effect: “For settlement or judgment till April 7.” OnApril 7 there is this entry: " For settlement or judgment. Defendant:present. Mr. Jayasekera files proxy of defendant. Mr. Fonseka saysthat the case has been settled. Mr. Swan says it has not been settled."Mr. Fonseka appeared for the defendant, and Mr. Swan for the plain-tiff. The Court then fixed the matter for inquiry for April 15. The*proceedings of April 15 are thus recorded: "Inquiry. Mr. Fonsekasays that that he has filed papers to show that there was a settlement.He also tenders a Kachcheri receipt for the amount of arrears due..Mr. Fonseka moves that the Court either inquire into the alleged'settlement or set the case down for trial." And he tendereda certified copy of the Police Court proceedings and certain other*documents, D 2 and D 3. The Commissioner, I understand, refusedto hold an inquiry into the alleged settlement, he said: "The case*has apparently not been settled now. The settlement contemplatedby section 408 is one that the parties have arrived at and whichthey placed before the Court. If the parties at one time came to asettlement, and subsequently one of the parties repudiates it before-such settlement is recorded by the Court, the Court cannot give veffect to the settlement. In this case so long as there is no settlementnow, the Court has to enter judgment in terms of the order of March 6.Let judgment be entered for plaintiff as prayed for, with costs.”The defendant appeals, and contend? that the Court ought to haveheld an inquiry into the question whether there had been a settle-ment between the parties. It is to be noted that the settlementarrived at in the Police Court for the withdrawal of the present case onpayment of arrears of rent does not say what the amount of the arrears;
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is, or on what basis of monthly rental the arrears were to be calculated.This will have to be proved by oral evidence, if necessary, becausethe plaintiff contends tjhat the arrears were to be at the rate of Bs. 45a month, and the defendant contends the arrears were to be calculatedat the rate of Bs. 35 a month. But the main question to be decidedis whether the defendant is entitled to call upon the Cours .to holdan inquiry into .this settlement. In this case the settlementdoes no rest upon any verbal agreement, but its existence is placedbeyond all doubt by the entry in the Police Court case, and I think itwould be encouraging knavery and breaches of faith on the partof litigants if they were to be allowed to get over a settlementarrived at in one Court, before another Court, by merely denyingthe existence of the agreement. In this case, the complainant gotover the trouble created by bis prosecution in the Police Court byagreeing to withdraw the civil case on certain terms, and now thathe has had the benefit of that settlement be comes into the civilCourt and entirely repudiates the agreement entered into in thePolice Court. I do not think it is possible for a Court of law totolerate a breach of faith of that kind, and if the law empowers it,I think it is the duly of the Court to see that the parties* are kept totheir agreement.
The decision of the main question depends upon the constructionto be placed upon section 408 of Civil Procedure Code. It is almostidentical with section 375 of the old Indian Code. But in myopinion the language of our Code where it differs from the IndianCode is very much stronger in favour of a party applying to have asettlement recorded than the language invsection 375 of the IndianCode. Mr. Perera, for the plaintiff, contends that the Judge islight in saying that a Court* can only record a settlement, if, whenthe settlement is notified to the Court and brought before the Court,the parties are still at one regarding it, but that, after one of theparties repudiates the settlement, the Court is powerless to recognizethe compromise and to pass a decree thereon. There are severallocal decisions on this section, and they are not all reconcilable. 1will refer to the decisions. I think the first under the section isthe case of Silva v. Hadjiar.h There the parties had come to asettlement, and the terms of settlement were drafted by the defendant'scounsel and accepted by the plaintiff's counsel. A paper containingthis draft was read in open Court and Assented to by counsel onboth sides, and the Judge made an order in the following terms:“ Let order be entered in accordance with the terms of the jointmotion when filed. " The motion paper was not filed then and there,and the plaintiff obtained time for making a fair copy of it, and thecase was to be mentioned for that purpose on the following day.When the case was called on the following day it was adjournedfor another date for a joint motion to be submitted, and when the
1 (1914) Bail. Notes of Cases 7.
1924.
Jatewab-dkitb A. J»
Suppiah v.Abdulla
( 82 )
1924.
Jayewar-X>ENE A. J.
JSuppiah v.Abdulla
case was called on the adjourned date, the defendant’s counsel statedthat he was*, unable .to sign a joint motion, as the land had beentransferred by his client to his son-in-law. Thereupon the plaintiff'sproctor moved for judgment in terms of the agreement read inCourt originally, and judgment was accordingly entered. Thedefendant appealed, and it was contended for him .that there was novalid compromise within the terms of section 408 of .the Civil Proce-dure Code. But the Court held that the parties were agreed on theterms of settlement which were reduced .to writing and which hadbeen notified to the Court and, formally accepted by the parties,
■ and that the joint motion which' was .to be filed referred the faircopy of the draft motion which had been read in Court and thetiling of which was a purely ministrial act. De Sampayo J. inthat case held that the Court was entitled to enter up decree interms of the settlement under section 408 of the Civil ProcedureCode, and he said this : “In my opinion section 408 of the CivilProcedure Code was intended to provide an easy and inexpensivemeans of giving effect to parties' agreements, instead of drivingthem to separate actions for specific performance, and, therefore,when a definite agreement is arrived at by them in reference tomatters involved in the action, one of them is entitled to apply tothe Court under the provisions of the section to enforce the agree-ment even when the other objects to it. Unless this were so, the■section would be deprived of its full scope and meaning. The currentof authority on the corresponding section of the Indian ProcedureCode entirely supports this view. The opinion expressed in debiKumar Dukhinessur Malia1 Avas relied on to the effect that it was adecree when entered that would be final and binding, and that thesection did not apply to cases where the agreement was sought tobe enforced against an unwilling party. But the opinion wasreconsidered and dissented from- by the Full Bench in Sinha v.Gho8et2 in which it was held that the Court could record an agreementand make a decree in accordance therewith even if one of the partiesto the agreement subsequently objected. There are also variousdecisions of the High Courts, Bombay and Madras, to the sameeffect." At this stage I may note the difference between theIndian section and our section. The Indian section says: " Ifa suit be adjusted wholly or in part, such agreement, compromise, orsatisfaction shall be recorded, and the Court shall pass a decree inaccordance therewith," but our sections says: "If an action beadjusted wholly or in part, such agreement, compromise, or satisfac-tion shall be notified to the Court by motion made in presence of,or on notice to, all the parties concerned, and the Court shall pass adecree in accordance therewith." Under our section it is necessarythat the Court should be notified of the agreement or compromiseby motion, and that it should be made either in the presence of all
1 (1886) 11 Cal.255.
* (1597) 24 Cal 90S.
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the parties or on notice to the parties. This requirement, in my 1924.opinion, shows that the parties so noticed are entitled to be heard jaybwab-upon the question of the compromise or settlement. These words dbnb J. A*are absent in the Indian Code, but still the Full Bench referred to in suppiah24 Cal. 908 held that any objection to the compromise should be AbduUainquired into, and the Court should decide if the compromise hadbeen entered into or not. The next case is the case of de Silva v.
Podi Sirtgho l. There, too, the agreement had been enteredinto in the presence of the Court, but subsequently one of theparties attempted to avoid the agreement. But the Courtheld that the defendant who was the party who desired towithdraw from the agreement was not entitled to withdraw fromit "after he had once agreed to the compromise. The other localcase is the case of Rayanpulle v. llohideen 2. In that case the factswere somewhat peculiar. The parties during the course of the trialmoved to have the case laid over for settlement. If no settlement wasarrived at, judgment was to be entered for plaintiff as prayed for. Itwould seem that thereafter a third party took upon himself to effect asettlement between the plaintiff and the defendant, and a documentwas produced which contained the terms of the settlement. It is.not necessary to go into the details of the settlement, but De SampayoJ., who delivered the judgment of the Court, said : “The plaintiffwas wholly ignored, and nothing was said as to what was to happento the case. This certainly cannot be regarded as a settlement ofthe case. The Court can only recognize a settlement between theparties to the action. ” So there the Court held that there was nosettlement, and that the so-called settlement did not refer to theaction pending before the Court, and that the settlement was notarrived at by the parties, but by a third party who evidently inter-ested himself on behalf of both parties. But the learned Judge inreferring to section 408 of the Civil Procedure Code gave expressionto certain observations which, in my opinion, are in conflict with theopinions expressed by him in the case of Silva v. Hadjiar (supra).
The case seems to have been argued without reference to authority,and neither the Indian cases which the learned Judge relied on inthe earlier case, nor the earlier case itself appears to have beencited in the argument, and I do not think that the comments onsection 408 contained in Ramayahpulle v. Mohideen 2 werenecessary for the decision of that case, and may be regarded asobiter. I have read the Indian case reported in 24 Cal. 908, andI entirely agree with the observations of De Sampayo J. withregard to the scope and effect of section 408. The leading judgmentin that case was delivered by Sir Francis Macleanafter-
wards a Member of the Judicial Committee of the Privy Council,and although two other Judges disagreed, we must take thejudgment of the majority as the judgment of the Full Bench.
1 {1916) 2 C. W. R. 175.* {1924) 5 Rec. Rep. 204.
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1924.
•Jayewar-DENE A.J.
Suppiah v.Abdtdlz
In view of theseauthorities, I come tothe conclusionthat
the learned Judgewas inerror in sayingthathe couldonly
record a settlement which the parties had consented tof and towhich they continued to consent till the moment* when the Courtplaced that agreement on record and passed a decree thereon.In the present case the agreement can be established beyondall doubt, and as I said it would be encouraging a gross breachof faith on the part of the plaintiff to allow him to get over thesettlement arrived at during the Police Court proceedings. I wouldallow the appeal and send the case back for the Court to inquireinto the settlement, which is the settlement recorded in the PoliceCourt proceedings,and totake the furtherstepsrequiredunder
section 408. The appellantis entitled to hiscostsin' both Courts.
Appeal allowed.