Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Gajendra Chandra Burma vs Bindubashini And Anr. on 24 May, 1909
Equivalent citations: 4 Ind Cas 5
Bench: Sharfuddin, Coxe


1. This is an appeal from an order of remand passed by the District Judge of Tipperah, dated the 6th January 1908. It Appears that on the 6th September, 1906, the date fixed for the hearing of the suit before the Subordinate Judge the plaintiff appeared and stated that a compromise had been agreed upon with the defendants. On the defendants’ denial that any compromise had been made the plaintiff asked the Court to take evidence that the defendants had really compromised the case. The lower Court was of opinion that Section 375 of the Code did not justify this procedure. The plaintiffs being under the impression that the case would be compromised had not brought their witnesses, and the Subordinate Judge dismissed the suit. On appeal by the plaintiffs to the District Judge that learned officer remanded the suit to the first Court that it might proceed to take evidence as to whether the compromise was really made or not between the parties; and if so made, to give effect to it having regard to the provisions of the Code of Civil Procedure. He also further directed that if the lower Court found that no compromise had been effected, the lower Court should hear the case on the merits, opportunity being given to produce witnesses.

2. There was a cross-appeal by the defendants before the District Judge on the ground that the suit had been undervalued. The learned District Judge says: “I am of opinion that as between the parties this decision of the Subordinate Judge is final and not open to appeal. The Subordinate Judge’s Court must be considered to be the Court in which the plaint is filed. I, therefore, decide this issue against the cross-appellants”.

3. On behalf of the appellant before us it has been contended that the learned District Judge was in error in remanding the case for the purpose of enquiring whether there really had or had not been a compromise, as alleged by the plaintiffs; and it has been urged that Section 375 of the former Code contemplates a lawful written agreement or compromise whereas in the present case there was no completed contract as contemplated by the provisions of Section 375 and hence that section has no application to the present case. With regard to Section 375, we find that there is nothing in the section which lays down that an agreement or compromise as mentioned in the section should be written. It appears to us that this section covers agreements of compromise either written or verbal. The terms of the petition of the plaintiff informing the Court of the compromise have been placed before us and it has been argued that they show that the compromise had not been completed. We think, however, that they are reconcilable both with the contention of the defence that the contract was not intended to be complete till the apasnama was filed, and also with that of the plaintiff that the contract wets completed and the provision for an apasnama was only a subsidiary arrangement for carrying out the completed contract. The petition itself is not conclusive and the matter should be cleared up by further evidence. We think that under the circumstances the learned Judge was right in directing the first Court to proceed to take evidence on the question of compromise.

4. The next point that has been urged the undervaluation of the suit. Section 12 of the Court Fees Act governs the decision of this question. Clause ii provides that whenever any such suit comes before a Court of Appeal, reference or revision, if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided and the provisions of Section 10, paragraph ii shall apply.”

5. The District Judge appears not to have considered the question in the light of this clause and we are, therefore, of opinion that he should deal with it. He should consider whether the point has or has not been wrongly decided by the Subordinate Judge to the detriment of the revenue.

6. Under these circumstances the case is remanded to the District Judge for the decision of the last point mentioned above. Thereafter the case should be sent back to the first Court for the decision of the point or points for which the lower appellate Court remanded the case.

7. We make no order as to costs in this appeal.

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