RAGHAVA WARRIER Vs. SAROJINI WARASYAR

JUDGEMENT

(1.) Plaintiff appeals. First defendant is his wife. Second defendant is their minor child. First defendant's brother married plaintiff's sister. They fell out. That incident affected the relationship of plaintiff and first defendant to such an exten that first defendant was forced to approach the criminal court for maintenance under S.125 of the Code of Criminal Procedure for herself and the child. After keen contest before the Magistrate, Sessions Judge and this court, the ultimate result was a concluded order for maintenance at the rate of Rs. 200/- and Rs. 100/- respectively per month for the mother and child.

(2.) The present suit is for a declaration that the orders are void and for consequential injunction against enforcement. Defendants contested. Parties examined themselves and proved large volume of documentary evidence, most of which are letters exchanged between them and their relations. The Munsiff dismissed the suit with Rs. 300/- as compensatory costs. Appeal filed by the plaintiff was partly allowed. Order for compensatory costs was vacated. The decree was confirmed in other respects without consideration on the merits for the reason that though several grounds were taken up in the memorandum of appeal, the only ground pressed at the time of arguments was the one relating to compensatory costs. In the second appeal, supported by an affidavit from the advocate who argued the case before the appellate court, the alleged concession is denied and a decision on the merits is canvassed.

(3.) the situation is really unfortunate. Though it may be desisable and advantageous to have concessions recorded under the signature of the maker in order to avoid confusions and difficulties, such a procedure may not always be possible on account of practical difficulties. During the course of argument, counsel may be making concession on factual and legal questions. It may not be possible or practicable to get these concessions recorded under the signature of the maker. In some cases the argument notes of the presiding officer may be the only record, other than the judgement or order, from which the correctness of the concession could be verified later in case of doubt or dispute. In some cases, such a record also may not be available and what is contained in the judgement or order and the memories of the residing officer or the Advocate alone could be looked upon. Instances are not rare when, after making concession, on account of difficulties in owning it, the counsel may request the court that it may not appear on record that he conceded. That may be because he is not quite sure of the justification for the concession or because be does not want to make it appear so for his own reasons. In such cases, courts may be deciding matters on merits.