KUNJAMMAL AND ANR. Vs. P.S. RAJAGOPALA IYER

JUDGEMENT

(1.) THE only question in this Letters Patent Appeal is whether the learned Judge, Chandrasekhara Aiyar, J., was right in holding that the appellants could not attack the decree passed by the learned City Civil Judge. The learned Judge on a consideration of what happened before the City Civil Judge who tried the suit held that the appellants could not be heard to dispute in appeal the rate of maintenance fixed by the learned Judge. The suit was filed by the appellants, the first appellant being the wife and the second appellant being the minor daughter of the respondent. They claimed maintenance for both and marriage expenses for the second appellant. The respondent filed a written statement denying his liability to pay any maintenance. When the suit came on for trial what happened before the learned Judge is best set out in his own words in paragraph (4) of his judgment,

(2.) IT is contended by the learned advocate for the appellants that this was not a case in which the Court acted extra cursum curiae but at the most disregarded certain rules of procedure and evidence, and the parties never intended to give up the right of appeal either expressly or by necessary implication. The proposition of law that a mere agreement between the parties that the Court may dispense with certain rules of procedure and evidence without giving up the right of appeal does not deprive the parties of the right of appeal is well established : Vide Sankaranarayana v. Ramaswamiah, (1922) 44 M.L.J. 258 :, I.L.R. 47 Mad. 39 and the leading cases of Pisani v. Attorney General for Girbraiter, (1874) L.R. 5 P.C. 516 and Burgess v. Morton, (1896) A.C. 136; but it is a question of fact in each case whether the circumstances merely amounted to a deviation more or less from the ordinary procedure or whether the agreement between the parties was that the Court should give a decision more in the nature of an award than an adjudication on the evidence in the case, complete or incomplete. The intention can only be ascertained by the events which happened in the particular case, and the decisions cited by the learned advocate for the appellants can only help in supplying the general principles.

(3.) IN Venkata Somayajulu v. : AIR1934Mad397 what happened was this : The plaintiff had been examined in chief. Some documents had been filed. Then at the defendant's request the District Munsiff made a local inspection of 'the site. The parties thereafter requested the Court to give a decision on the evidence already on record and intimated that they proposed to adduce no further evidence. The learned Judge, Venkatasubba Rao, J., held that the parties only abridged the trial by seeking a decision on incomplete evidence, and this being no more than some deviation from the ordinary procedure, the judgment was not extra cursum curiae. The learned Judge, however, on a construction of the document held that the right of appeal had been clearly and unequivocally waived. This decision reveals the necessity of examining the facts of each case for the application of the general principle. In Sankaranayana v. Ramaswamiah, (1922) 44 M.L.J. 258 :, I.L.R 1922. 47 Mad. 39 the terms of the agreement signed by the plaintiff and two of the defendants were as follows: