JAGDISH NARAIN Vs. RASUL AHMAD

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for ejectment and damages. The suit was instituted on 30-1-1948, against four persons, Easool Ahmad Abdul Hasau and Basir, defendants 1 to 3, and Abbas Ali, defendant 4. Defendant 4 was the previous owner of the shop which was the subject-matter of the suit and had transferred it to the plaintiff. Defendant 1 was a tenant of the shop. Defendants 2 and 3 were alleged to be his sub-tenants. Defendants 1 to 3 filed one written statement and defendant 4 filed another. Defendant 4 admitted plaintiff's claim while defendants 1 to 3 contested it mainly on two grounds firstly that the plaintiff had no right of ejecting them and secondly that even if he had such a right, they were entitled to sufficient time to vacate the shop.

(2.) On 6 5 1948, Mr. Saddiqui, pleader for defendants 1 to 3 and defendants 2 and 4 were present. They made a statement to the following effect : "The parties agree today that plaintiff's suit be decreed with costs against defendants and that defendants vacate the shop in dispute by or on 6-9-1948 failing which plaintiff will be entitled to immediately execute his decree." The statement was signed by Mr. Saddiqi and defendants 2 and 4 and the plaintiff. As defendants 1 and 8 were absent, the Court took the prosecution of adjourning the case to 13-5-1948, for the purpose of obtaining their signatures. On 13-5-1948, defendants l and 3 were again absent. Mr. Saddiqi stated that defendants l and 3 were absent due to illness and that he had verified the agreement on their behalf on 6 5-1948, and prayed that a decree be prepared in terms thereof. On this statement being made the Court passed a decree in terms of the compromise recorded on 6 6.5.1948. Against this decree Kasool Abmad, defendant 1, appealed to the lower appellate Court, challenging the compromise on the ground that Mr. Siddiqi, his counsel, had no authority to enter into it. The learned Judge of the Court below construed the terms of the power of attorney in favour of Mr. Siddiqi and came to the conclusion that it did not authorise Mr. Siddiqi to enter into the compromise--it merely authorised him to file a petition of compromise which had been signed by his clients. In the result the decree of the trial Court was set aside and the case was remanded for being tried according to law. Against this order of remand the plaintiff has come up in appeal to this Court.

(3.) A preliminary objection baa been raised to the hearing of this appeal. It is urged that the appeal in the Court below was against an order recording a compromise under Order 23, Rule 3, Civil P. C., and as such no further appeal lay to this Court. This contention, in our opinion, has no force. The appeal in the lower Court was directed against the decree passed by the trial Court and not against the order recording the compromise. Where the decree itself is challenged in the Court a second appeal to this Court would lie against the order of remand under the provisions of Order 43, Rule 1, Clause (u), Civil P. C.