KUNJAMMAL Vs. PSRAJAGOPALA 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, Though the allegations of abandonment and ill-treatment made in the plaint were denied by the defendant in his written statement, still at the time of trial, as a matter of compromise, the defendant considered plaintiff's right to maintenance and agreed to give them such amount as may be fixed by Court. Both sides left the question of quantum of maintenance, past and future, to be determined by me on the statements made by the respective counsel at the bar, as regards the income of the defendant and the needs and requirements of the plaintiffs and did not let in any oral evidence. It may also be mentioned that neither was any documentary evidence let in.

(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/s. Ramaswamiah (1922) 44 M.L.J. 258 : I.L.R. 47 Mad. 39 and the leading cases of Pisani V/s. Attorney General for Girbraiter (1874) L.R. 5 P.C. 516 and Burgess V/s. Morton (1896) A.C. 136, 137; 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 the present case there are two important circumstances which must be borne in mind. The first is this. The defendant had filed a written statement denying liability to pay separate maintenance to his wife. He also alleged that he was still willing to take back his wife. Nevertheless when the case came up for trial he conceded the plaintiffs right to maintenance not expressly or impliedly in abandonment of a part of his plea, but, as expressly stated by the learned Judge as a matter of compromise, and evidently it was part of the compromise that he would agree to give the plaintiffs such amount as may be fixed by Court. Secondly, both sides left the quantum to be determined by the learned Judge not on any evidence which had so far been adduced by either side--actually no evidence had been so adduced--but to be determined on the statements made by counsel from the Bar. Now, clearly statements of counsel from the Bar, though they may be entitled to all consideration, can never be evidence in the case. To ask the Court to give a decision based merely on statements of Counsel at the Bar is certainly not a slight departure from the ordinary practice. It puts the Court entirely out of its course. The statements by Counsel have not been recorded, a fact which certainly has a bearing on the intention of the parties, namely, whether they intended to challenge the decision of the Court by way of appeal. It will be a legitimate question to ask, on what material could the parties attack a decision of the Court when there was no record of what had been stated by Counsel at the Bar ?