SUSHEELA DEVI Vs. PADMA DEVI

JUDGEMENT

(1.) THIS is a letters Patent appeal against an order of a single Judge of this Court (Ali J) dated 17 -11 -66 whereby the learned Judge amongst other things has decided that an additional issue raised by him in this case on 29 -9 -66 which was to the following effect : -

(2.) THE brief facts relevant for the disposal of this preliminary objection are that while the suit was going on between the parties in the trial court, on 23 -12 65 it was stated by the parties before .the court .that an attempt was afoot to get the case compromised. The learned judge fixed 10th March l966 as the date in the case. On 13th January 66 when again "this request was made to the court it was directed that the parties should report the compromise to the Dy. Registrar before 1st February 1966. No such intimation was given to the Dy. Registrar and nothing about a compromise was stated on a number of hearings in the case which took place on 14th April 66, 16th April 66, 28th April 66, 13th June and 14th June 66. The evidence of, a number of witnessess for the , plaintiff was recorded by the : trial court. On 28th June 1966 an application was presented that the parties had entered into a compromise on 23rd April 66 in Delhi, On this application the plaintiff filed her objections on 27 -9 -66 wherein any such compromise having been arrived at was altogether denied On 29th Sept. 66 the issue mentioned above was added by the learned judge who ordered that this issue be tried along -with other issues and the defendants were directed to lead their evidence. On 14th Nov. 66, an application was presented by the learned counsel for the defendant that this additional issue be tried as a preliminary issue. There were some other applications pending before the trial court which were ultimately disposed of by its order dated 17th Nov 66 which is the subject matter of this appeal. The only grievance of the learned counsel is with respect to that portion of the order whereby the application of the defendant for trying the additional issue as a preliminary issue has been refused.

(3.) MR . Mahajan the learned counsel for the appellant, in order to overcome this objection of the respondent, has stated that the word judgment should be very librally construed and any order which decides some important point would be construed as a judgment. His argument is based on the wording of O 23 r. 3 of the Civil P. C. Under that rule when it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, the court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to the suit. According to Mr. Mahajan if the trial court had recorded evidence with respect to the additional issue and come to the conclusion that the suit had been lawfully compromised, it was bound to pass a decree in terms thereof Therefore the refusal of the court to try the additional issue as a preliminary issue should be construed to be a judgment and therefore this appeal is maintainable.