SOCIETY OF THE SISTERS OF THE BLESSED VIRGIN MARY, PRESENTATION CONVENT Vs. MADRAS -E- BAKIYANTHUS SALIHATH

JUDGEMENT

(1.) THIS appeal is directed by unsuccessful defendant. The facts which are necessary for the disposal of this appeal can be briefly stated as follows: The respondent plaintiff filed the suit O.S. No. 3529 of 1988 before the VIII Assistant Judge, City, Civil Court, Madras, for recovery of possession of the premises bearing door No. 59, Harris Road, Egmore, Pudupet, Madras 2 and also for recovery of mesne profits. He further prayed for the relief of mandatory injunction to remove the wall and restore the gate and payment of arrears of rent upto January, 1988 amounting to Rs. 11,160. The defendant, who is the appellant herein, entered appearance through counsel. The suit was posted to 27.9.1989 for filing written statement and on that date, a memo of compromise signed by the plaintiff and the defendant was filed. The VIII Assistant Judge, City Civil Court, Madras, directed the matter to be called on 29.9.1988 and the parties were also directed to appear before court on 29.9.1988. Accordingly on 29.9.1988 the parties were present. They were heard. Since they had no objection for recording the compromise, the compromise was recorded and the suit was decreed in terms of the compromise on 29.9.1988. Challenging the said judgment and decree, the defendant preferred an appeal, A.S. No. 207 of 1989 before the Principal Judge, City Civil Court, Madras.

(2.) ACCORDING to the appellant, the trial court ought not to have recorded the memo of compromise since the Sister Superior representing the appellant has no express or implied authority under the constitution and directives of the Union of Sisters of the Presentation of the Blessed Virgin Mary, to settle an action by compromise without the prior consent of the Major Superior and her counsel. Further, as per constitution C.119, an act of extraordinary Administration of the affairs of the Society in the administration of temporal goods requires the authorisation of the Major Superior with the consent of her counsel. As per directive D. 82, the congregation, an act of yielding a contesting law suit or settling an action by compromise, is considered to be an act of extraordinary Administration. Hence, Sister Superior who signed the memo of compromise has no authority to enter into the compromise of the suit claim with the plaintiff. The decree passed in terms of the compromise has no force in law. One of the contracting party, namely, Sister Superior, has no authority to bind the appellant Society into such a compromise and as such the Society cannot be, held liable for the mistaken act. Further, the Court ought to have conducted an enquiry under Order 23, Rule 3, C.P.C. before recording the compromise. But it has failed to do so. It was also submitted on behalf of the appellant that in view of Order 43, Rules 1 -A(2)C.P.C. the only remedy available is to prefer an appeal and no second suit shall lie and as such the appeal is maintainable.

(3.) THE lower appellate judge framed two points for determination, and on point No. 1, the lower appellate judge held that the appeal is not maintainable and on point No. 2, it was held that the judgment and decree of the trial court were passed in terms of the compromise recorded on 29.9.1988 and hence they are not liable to be set aside. Consequently, the lower appellate judge dismissed the appeal. Aggrieved by the same, this second appeal is filed. The second appeal is admitted on the following substantial questions of law: