MATHAI ITTY Vs. THOMMAN CHACKO

JUDGEMENT

(1.) THIS second appeal is in a suit to enforce a clause in an agreement Ext. P-1, dated October 19,1952 , by which defendants 1 and 2 bound themselves to pay a sum of Rs. 293 to the first plaintiff who has assigned his right thereto in favour of the second plaintiff, who is the appellant. The suit was dismissed by the subordinate Judge on appeal. A preliminary objection was taken before me to the maintainability of the second appeal, by reason of S. 102 of the Civil Procedure code as it was in force at the time it was filed, the amount or the value of the subject matter being less than Rs. 500. The objection is tenable and has to prevail. However, at the request of counsel for the second plaintiff this appeal was heard as a Revision Petition.

(2.) THE questions that arise are, whether the object of ext. P-1 is unlawful or is opposed to public policy as being to stifle a criminal prosecution and whether, if that be so, the undertaking in Clause. 6, which is by defendants 1 and 2 who were the prosecutors in the criminal case, to pay the first plaintiff is unenforceable. Ext. P-1 was entered into as a result of mediation by the first plaintiff and others, between defendants 1 and 2 on the one part and 3rd defendant and the 2nd plaintiff on the other, by which they put an end to several cases, civil and criminal, pending between them. Clause. 1 to 3 related to the compromise of three civil cases. Clause. 4 which is material related to two criminal cases, in which the first defendant was the complainant and the 3rd defendant was one of the accused and it embodied an undertaking by the first defendant to file a petition in court stating that his witnesses had been won over by the accused, and that he is unable to adduce evidence, and a corresponding undertaking by the accused to file a statement agreeing that the petition may be allowed. In Clause. 6 on which the suit was based it was provided, that defendants 1 and 2 do pay Rs. 293 to the first plaintiff by way of expenses of litigation, as it was put. THE inference from Clause. 4 is irresistible, that the criminal cases referred to were non-compound-able. THE statement in the petition, that the witnesses were won over was to be made apparently before they were to be examined and by the petition the first defendant was to bind himself not to adduce any evidence. I fail to see what else could be the object of this provision in Ext. P-1, except to stifle the prosecutions in the two non-compoundable cases. THEre is unanimity of judicial opinion that where the offence is non-compoundable, an agreement made for compounding it as it were or for stifling the prosecution is contrary to public policy.