065-NLR-NLR-V-63-UKKU-AMMA-Appellant-and-PARAMANATHAN-et-al.-Respondents.pdf
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WJUERASOOHIYA, J.— Uhku itnma v. Paramanalhan
Present :Weerasooriya, J.UKKU AMMA, Appellant, and PARAMANATHAN el al., Respondents
S. C. 34—C. R. Matale, 13077
Compromise of action—Procedure—Civil Procedure Code, ss. 91, 408.
Where, in a purported settlement of a case, not only were the provisions ofsections 408 and 91 of the Civil Procedure Code as to notification to Courtby motioiwiot complied with, but there was nothing on the record to showat whose instance the settlement was arrived at—
Held, that the decree entered in terms of the settlement should be vacated.
Appear from an order of the Court of Requests, Matale.
Vernon Jonklaas, for the plaintiff-appellant.
T. B. Dissanayake, with A. H. Moomin, for defendants-respondents.
Cur. adv. vuU.
November 27, 1959. Weerasooriya, J.—
The plaintiff-appellant is the present owner of all that northern portiondepicted as Lot A in partition plan No. 23/1931, filed of record, and alsoof the eastern half of the house standing on the southern portion depictedas Lot B in the same plan. She has filed this action against thedefendants-respondents for a definition of the boundary between lots Aand B alleging that the defendants (of whom the 2nd defendant is admit-tedly entitled to lot B) had encroached on a portion of lot A and on theportion of the said house belonging to her.
After the issues had been framed the trial was adjourned for the6th May, 1958. The proceedings on that date show an entry made by theCommissioner “ case settled ”, and below that appears in his handwriting
WEERASOORIYA, J.—Vkku Ammo. v. Paramanathan
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the terms of the purported settlement. The present appeal is fromthe order of the Commissioner dismissing the plaintiff's subsequentapplication to have the settlement set aside and the trial proceeded with.
The terms of settlement as recorded by the Commissioner are asfollows :
“ The boundary between the Plaintiff’s and Defendant’s land tobe the existing live fence marked in Plan No. 384 filed of record, up tothe enderu tree on that fence. From that enderu tree the boundaryto go up to the eastern corner of the southern phase of the well. Thesouthern phase (which is 6 feet 10 inches) (of the well) also will be aboundary. Then from the western corner of the southern phase of thewell, a line 18 feet in length up to the existing live fence and providingan opening of 12 feet. Then along the live fence, and then the wirefence marked as the southern boundary of lot 3, on that side.
Then on the western side, the southern boundary of lot 2 and westernboundary of lot F. (Lot F thus goes to Plaintiff.)
The Defendants to be entitled to erect a step to the southern phaseof the well at their expense and to use the well in common.
Re building in the same plan.
A & B to the Plaintiff.
D & G to the Defendants.
The present temporary partition between B & C to be demolishedand a wall in brick and lime to be erected by Defendants at his (sic)own expense.
A plan on these lines to be prepared by Mr. Samarasinghe at jointexpense.”
Plan No. 384 which is mentioned in the above terms of settlementwas prepared on the 6th February, 1958, for the purpose of this action,and shows certain existing encroachments, not only on lot A, but alsoon lot B, in plan No. 23/1931. After the settlement was recorded, planNo. 384A dated the 2nd August, 1958, was prepared which purports toshow the respective portions of lots A and B and of the house allotted tothe plaintiff and the defendants under the settlement and, on the orderof the Commissioner, decree was entered in terms of the settlement andplan No. 384A.
The plaintiff has stated in her petition of appeal that she did notconsent to the settlement of the 6th May, 195S. According to thejournal entry of that date the plaintiff was represented by a proctor andthe defendants by counsel instructed by a proctor. There is nothingto indicate that the parties themselves were present.
Although it was held in Fernando v. Singoris Ajypu1 that a proctor canunder the general authority of his proxy enter into a compromise whichis binding on his client, it would appear from the observations of Soertsz,
J., in Punchibanda v. Punchibanda et al.2 that this Court has more
1 (1924) 26 N. L. R. 469.
S
{1941) 42 N. L. R. 382.
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Ohandrasena v. de Silva
than once indicated the desirability of settlements, adjustments andadmissions that are reached or made being explained clearly to theparties and their signatures or thumb impressions obtained. Thisprocedure was not followed in the present case. ' Having regard tothe involved nature of the terms in the first two paragraphs of thesettlement, as recorded, I have grave doubts whether the plaintiff wouldhave understood the settlement even if it had previously been put toher. The first paragraph refers to an enderu tree on a live fence markedin plan Ho. 384, but no such tree is shown in the live fence depicted inthat plan. It is not clear even from the subsequent plan No. 384Awhether there is such a tree.
Section 408 of the Civil Procedure Code provides that an agreement orcompromise shall be notified to Court by motion. Under section 91,where the motion is by the advocate or proctor for a party, a memorandumin writing of such motion is required to be at the same time deliveredto Court. Not only have these provisions not been complied with, butthere is nothing in the record to show at whose instance the settlementwas arrived at.
In these circumstances I would allow the appeal of the plaintiff withcosts. The decree entered in terms of the settlement is vacated and thecase will be sent back for the trial to be proceeded with according tolaw. All costs so far incurred in the Court below will be costs in thecause. This order will not, however, preclude the parties from arrivingat any lawful adjustment or compromise of the action, if they so desire,and notifying the same to Court in terms of section 408 of the CivilProcedure Code.
Decree vacated.