P S N RAWTHER Vs. SHAHUL HAMEED

JUDGEMENT

(1.) DEFENDANTS 2 and 3 arc the appellants. Plaintiff filed the suit for partition claiming 5/12 shares in item No. 1 and 5/12 shares in 1/3 right in items 2 to 4. DEFENDANTS 2 to 4 filed written statement raising several contentions including adverse possession. The suit was listed for trial on 10-10-1983. It was adjourned to 28-10-1983. On that day plaintiffs counsel made endorsement on the plaint that he agrees to a partition decree for his 5/12 shares over the entire plaint schedule items to be carved out from items 1 and 2 alone of the plaint schedule, on the same day counsel for defendants 2 to 4 made the following endorsement. " Except 4th defendant others do not come even after repeated requests. The above is agreed to". Case was then adjourned to 31-10-1983 and on that day it was decreed as per the endorsement. DEFENDANTS 2 and 3 challenged the judgment and decree by filing appeal before the Sub Judge, Kottarakkara. The Sub Judge dismissed the appeal on the ground that the decree is passed on consent of parties and hence the appeal is not maintainable. Aggrieved by the same the above appeal is filed.

(2.) MAIN contention of the defendants is that when the endorsement was made by their counsel he did not have instructions to compromise the suit and hence it cannot in any manner bind them. Counsel submitted that as a result of the endorsement defendants 2 and 3 are seriously prejudiced and they have been denied of fair trial and a considered decision by the Court. Counsel for the plaintiff argued that the judgment of the trial Court is not based on compromise but on consideration of all issues involved in the case and so it cannot be assailed.

(3.) FOR the foregoing reasons the judgment and decree of the trial Court which was confirmed by the lower appellate Court are set aside. The case is remanded to the trial Court for denovo consideration after affording opportunity of hearing to the parties concerned. The trial Court is directed to dispose of the suit with utmost expedition and at any rate within a period of three months from the date of receipt of records from this Court. Second Appeal stands allowed. No costs. Transmit the case records to the trial Court immediately. .