SANKARANARAYANA PILLAI Vs. RAMASWAMI PILLAI

JUDGEMENT

(1.) This case is of considerable importance because circumstances of a similar nature have been before the Courts on several occasions and they have given rise to some considerable divergence of opinion.

(2.) The facts are that a suit came before the District Munsif as to whether the defendants had unlawfully diverted some water from the land of the plaintiff and so injured his land. When the case came before the District Munsif certain plans and documents were put before him and then the plaintiff and some of the defendants agreed in writing and the pleader acting for the other defendants, I have no doubt, agreed to what appeared in writing that the learned Munsif should himself go and inspect the land. The terms of the agreement signed by the plaintiff and two of the defendants are contained in an affidavit which ran as follows:--"We agree to the matter being decided according to the opinion which the Court might entertain on the aforesaid local inspection without going into any further evidence. "The plaintiff endorsed on that affidavit an agreement to abide by any decision which the Court may arrive at after making a local inspection of the land and perusing certain plans and other records. The learned Munsif agreed to act on that agreement and went to the place some seven miles off two days later. The case was again before the Court when some documents were put in according to the plaintiff's statement and the judgment was given and a decree passed in the ordinary form of a decree.

(3.) The issues in the suit were issues of fact and issues of law. The learned Munsif found the facts in a certain way and in view of those facts gave a finding. In due course there was an appeal to the Subordinate Judge and he expressed his view that the learned Munsif was wrong in law. He held that no appeal lay to him by reason of the agreement referred to above. He purported to follow a case in Chengalroya Chetty V/s. Raghava Ramanuja Doss (1918) 37 M.L.J. 100 where a very similar agreement was held to result in the decree being not appealable on the ground, as I understand it, that the decree was not a decree of a Judge as such but as an arbitrator. The law as I understand it is this. Where parties agree to a Court proceeding without jurisdiction extra airsum curiae as it has been put, the parties cannot appeal from the decision of the Court. The parties in fact may agree not to appeal from the decision of the Court and such agreement will be inferred from the fact that they agreed to the Court taking a course which is altogether outside the ordinary powers of the Court. But this does not apply to mere deviations from procedure if the Court has jurisdiction over the subject unless there is an attempt to give the Court a jurisdiction it does not possess, so that a Court of Appeal cannot properly review the decision. Such deviations do not deprive either of the parties of the right of appeal. Pisani V/s. Attorney General for Gibraller L. R. 5 P. C. 516. See also the decision of the House of Lords in Burgess V/s. Morton (1896) A.C. 136. So in these cases the question to be decided is whether an agreement between the parties does result in the Court assuming jurisdiction which otherwise it would not have or involves the Court in going so outside its ordinary course of procedure that it is impossible for the appellate Court properly to review its decision.