Allahabad High Court
Tumman Singh And Ors. vs Sheodarshan Singh on 23 October, 1929
Equivalent citations: 122IND. CAS.186, AIR 1930 ALLAHABAD 162
JUDGMENT
1. This is an appeal against an order of remand passed under Order XLI, Rule 23 of the Civil Procedure Code.
2. It appears that the plaintiffs who are the appellants in this Court instituted a suit for recovery of possession and mesne profits against the respondent who has not appeared to contest this appeal. At one stage of the trial, on 19th December, 1927, in the Court of first instance, the parties agreed by statements made before the Court by their Counsel that they would abide by the statement of one Bhagwant Singh. Bhagwant Singh was, accordingly, ordered to be summoned and the 9th of January, 1928, was fixed for recording his statement. The next day i.e., the 20th of December, 1927, the defendant made an application to the Court stating that he had learnt that Bhagwant Singh was related to the plaintiffs and he would not like to be bound by Bhagwant Singh's statement. On 9th January, 1928, the learned Munsif held some enquiry and came to the conclusion that the allegation that Bhagwant Singh was related to the plaintiffs was not true. The Court proceeded to take down the statement of Bhagwant Singh and, ultimately, passed a decree in the terms suggested by Bhagwant Singh as being the terms of a proper decree.
3. The defendant being dissatisfied appealed to the lower Appellate Court and his appeal has been allowed. The learned Subordinate Judge held that it was open to the defendant respondent to resile from his agreement, namely, that he would abide by the statement of Bhagwant Singh, The Court directed that the case should be tried on the merits.
4. In this Court it has been contended before us that Bhagwant Singh's statement would bind the respondent even if he resiled from the position taken up on the 19th of December, 1927. As an authority for the proposition, the case of Himanebal Singh v. Jatwar Singh 80 Ind. Cas. 16 : 46 A. 710 : A.I.R. 1924 All. 570 : L.R. 5 A. 439 Civ has been cited. In that case no exception to the statement of the referee was taken till after that statement had been recorded. The case quoted does not show that the exception to the statement of the referee had been taken before it was recorded and the case, therefore, is no authority on the point which we have to decide.
5. The learned Counsel has also urged that the agreement that the parties would abide by the statement of Bhagwant Singh came under the purview of Order XXIII, Rule 3, Civil Procedure Code, and must be regarded as an adjustment of this suit by the parties. But this contention is against the very language of Rule 3 itself. Rule 3 of Order XXIII runs as follows:
Where it is proved to the satisfaction of the Court that a suit has been adjusted...
6. The statement that was recorded before the Subordinate Judge on 19th December, 1927, was not to the effect that the parties had come to certain terms regarding the subject-matter of the suit but was to the effect that they would accept certain terms which might be stated by Bhagwant Singh. We do not see how the respondent could be. pinned down to his statement made on 19th December, 1927, that he would accept the statement of Bhagwant Singh.
7. The result is that the appeal fails and is hereby dismissed, but without costs as the respondent is absent.