The Madras High Court while dealing with a revision petition instituted under Article 227 of the Indian Constitution held that when Article 227 is invoked, this Court scans the judicial process applied in a litigation in order to ascertain quality of processual justice and evaluates the consequences produced. It was further observed that this Court's claim that it is a sentinel on the qui vive in protecting the rights of the citizens will then go hollow and weather beaten, if it compromises its Constitutional conscience, and forsakes its duty to correct a wrong in exercise of its powers under Article 227 of the Constitution. In view of the same, the revision petition of the petitioner was entertained before this Court.
A Single Bench of Justice Seshasayee, while observing that the Counsel for the revision petitioner did not have the authority to file a memo, conceding the right of the revision petitioner/ the second defendant, allowed the revision petition instituted by the petitioner in the instant case.
The present revision petition was preferred by the revision petition under Article 227 of the Indian Constitution assailing a decree dated June 6, 2015 passed with the consent of the defendants declaring the title of the plaintiff to suit property.
The factual background of the case was such that the plaintiff/ first respondent laid a suit for a declaration of title allegedly on the basis of an unregistered sale deed. The second respondent was the sole defendant to the suit. He was stated to be a close relative to the plaintiff.
Thereafter, the second respondent claimed that he was the owner of the suit property along with another, and thus instituted the revision petition to implead himself. The same was allowed on August 24, 2012. Thus, this required the amendment in the plaint, however the first respondent failed to carry out the same, as a result the suit was dismissed for default on November 27, 2012.
However, the plaintiff after dismissal of the suit, filed for restoration of the suit along with the application for condonation of delay. The same was allowed and consequently the suit was restored to file through order dated April 27, 2015.
At the time when the suit was restored, there was still only one defendant: the second respondent herein. The plaintiff carried out an amendment to the cause title of the plaint, and the revision petitioner came to be arrayed as the second defendant. Subsequently, on April 29, 2015 a Memo is alleged to have been filed by the Counsel for the revision petitioner informing the Court that the second defendant/revision petitioner 'submits to the decree', recording which on June 2, 2016, the Court decreed the suit.
However, the second defendant assailed the decree dated June 6, 2015 and claimed it to be vitiated by fraud
The Court, after hearing the submissions of both the parties at length, referred to the records of the Trial Court. After going through the factsheet and different stages of plaint, the Court observed that when Article 227 is invoked, this Court scans the judicial process applied in litigation in order to ascertain quality of processual justice and evaluates the consequences produced. Where the procedure is mishandled, or manipulated (commonly understood as abuse of judicial process or fraud on court) to produce an unfair result adverse to one of the litigants with the potential to impair the litigant's faith in the Court, it will be a clarion call for this Court to step in. This Court's claim that it is a sentinel on the qui vive in protecting the rights of the citizens will then go hollow and weather beaten, if it compromises its Constitutional conscience, and forsakes its duty to correct a wrong in exercise of its powers under Article 227 of the Constitution, the Court remarked.
Reverting back to the facts of the present case, the Court stated amending the plaint consequent to an order allowing impleadment of a defendant under Order I Rule 10 (4) though is mandatory, yet a breach does not imply that the newly impleaded defendant can be unfairly treated. In that sense Order I Rule 10(4) compliance is cosmetic viz-a viz the right of the newly impleaded defendant - both substantive and procedural.
Further on the issue as to whether the Counsel for revision petitioner filed a memo dated April 29, 2012 before the Trial Court, the Court stated that the determination of this issue was not within the jurisdiction of this Court.
The prime question that was posed before this Court was as to how the Trial Court proceeded with the said case. In view of the same, the questions that were posed for consideration were, why did the trial Court not ensure the presence of the second defendant before it and why did it choose to act on a memo allegedly filed by the counsel for the second defendant/revision petitioner.
With respect to the aforesaid issues, the Court cited the case of Syed Yousuf Ali v Mohd Yousuf wherein the Andhra Pradesh High Court observed that since filing of memo is not contemplated under Code of Civil Procedure or Civil Rules of Practice, no judicial order can be passed on memo.
This Court, however, had a contrary view with that of the Andhra Pradesh High Court. On the issue of when can a Court act on a memo of counsel of a party to a suit, the Court opined that to answer the same, one needs to understand the difference between a substantial right and a procedural right against the category of orders that may be procedurally passed by the Court.
It was further observed that a scrutiny of the scheme of the CPC informs that these are the situations where the Courts are required to adjudicate on the rights of the parties over the subject matter of the suit based on evidence, and where the Courts do not enjoy any discretion of its own in the procedure. They literally decide the fate of a litigant vis-a- a-vis the suit.
Additionally, the Court submitted that the second category of cases where the Court possess discretionary space within the circumscribed boundaries of procedure. Instances such as whether the Court should order fresh summons to the defendant or to direct service by substituted summons, whether it needs to allow amendment of pleadings, whether it should allow additional pleadings in a particular case, whether it should summon a witness or allow production of documents, or appoint a commission, and so on. Here the Court has greater discretion, and not one of them may immediately affect the right of the parties viz-a-viz the subject matter of the suit, or their right to sue or defend. In these categories of cases, the Court may act on the Memo of a counsel of the parties to pass a judicial order, the Court noted. Reliance was placed to the case of Mangayakarasi v Suseela.
It was further observed by the Court that out of the two afore stated situations, the nearest procedural aspect which this Court may refer to as an analogy is the authority of the counsel of a party to compromise the suit without his client signing the written compromise. In reference to the same, Order XXIII Rule 3 was taken into consideration. The Court further referred the case of Byram Pestonji Gariwala v Union Bank of India,wherein it was held that that the counsel possessed of the requisite authorization by vakalatnama can act on behalf of his client to enter into a compromise without there being any agreement in writing between the parties.
The same observation was reiterated in the judgments of the Apex Court in the cases Arjan Singh v Punit Alhuwalia, Banwari Lal v Chando Devi, Jigneshwardas v Jagran, Pushpa Devi Bhagat v Rajinder Singh and Y.Sleebachen v State of Tamil Nadu.
Further with respect to the determination of the question as to whether an Advocate has the authority for compromising a suit on behalf of his client, the Court referred to the case of Ramappayya v Subbamma wherein it was observed that no implied authority arises or can be deemed to have been conferred upon him to make a compromise which was binding upon his client.Similar findings were made in the case of Himalayan Coop. Group Housing Society case.
Thus, in the light of the aforesaid observations, the Court concluded that the counsel for the revision petitioner did not have the authority to file a memo, conceding the right of the revision petitioner/ the second defendant.
It was further noted by this Court, that the Trial Court passed a decree declaring the right of the plaintiff/first defendant based on unregistered sale deed, which on the face of it, was against Sec.17 of the Registration Act, read with Sec54 of the Transfer of Property Act.
In view of the same, the Court observed that the revision petition of the petitioner was maintainable under Article 227 of the Indian Constitution as the revision petitioner was simply wronged in the instant case and was not given an opportunity to defend his case. Thus, the decree passed by the sub- ordinate Court was set aside and further direction was issued to resume the suit from the date of carrying out the amendment in the plaint after restoration of suit. Accordingly, the revision petition was allowed.
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