KUNNIRICKAL CHITTY FUND Vs. NARAYANAN NAIR

JUDGEMENT

(1.) A suit for recovery of money claimed as due on the basis of a chit bond executed by the defendants was decreed by the court below by the judgment challenged in this appeal. The 5th defendant alone contested the suit. But when the case came up for trial his counsel submitted that the contentions are not being pressed and the parties agreed to have the suit decreed on admission without any investigation. So far it is common ground. But the court below has directed that the 5th defendant will be proceeded against in execution of the decree only in case the amount decreed is not realised from the other defendants and in justification of this it is stated that the 5th defendant prayed for equitable relief, namely, that the plaintiff may proceed against the other defendants in the first instance and this is not opposed and so the prayer has only to be allowed. It goes without saying that except on consent such a decree cannot be passed, for the 5th defendant stands in relation to the plaintiff in the same situation as the other defendants in the suit. Evidently the court below has assumed that the plaintiff has consented to the course. The plaintiff does not accept this and evidently the only ground raised in the appeal is that on assumed consent the court ought not have decreed as it has done. It is said this has caused considerable prejudice as the plaintiff's right to proceed against the 5th defendant is seriously affected.

(2.) Time and again subordinate courts have been told that they should take the precaution to see that any concession made by counsel is recorded in writing and signed by party or counsel. Nevertheless it is distressing to see such instances where decision is made merely based upon alleged consent and the fact of such consent is in dispute.

(3.) Nevertheless, possibly, if the judgment had categorically stated the fact of consent by plaintiff's counsel to the request of the 5th defendant this court would have left the plaintiff to pursue the remedies elsewhere and not by way of appeal. But we find the statement in the judgment in this regard quite vague and equivocal. It does not say that the request of the 5th defendant was put to the plaintiff's counsel and the plaintiff's counsel agreed to it. It is one thing to say that any party agrees to proposal or suggestion or request by the other party and another thing to say that such a thing is not opposed. If there is no occasion for opposing it as for example, when the other party may not take the request as serious and might not think it necessary to protest it cannot be taken as consent. We are left in the realms of conjecture in the matter of determining what exactly was the attitude taken by the plaintiff's counsel to the request made by the 5th defendant for equitable relief. The relevant statement in the judgment is: "This is not opposed and that prayer is only to be allowed.'' The judgment does not show exercise of sufficient care on the part of the learned subordinate judge and it is this that has paved way for the appeal. We cannot uphold the decision merely on such assumed consent. We do not think the plaintiff should lose his rights which he would have got adjudication of in the suit. The result would be that the direction of the Subordinate Judge that the 5th defendant would be proceeded against last should be vacated. We do so.