In C.R.P.(NPD) No.1 of 2022-MAD HC- Unless Court decides to proceed ex-parte, it should not act solely on Memo of counsel of party conceding substantive right or right of defence for passing any non-adjudicatory decree or appealable order: Madras HC Justice N.Seshasayee [27-05-2022]

Read Order: ABDUL RASHID SAHIB Vs. RAMCHANDRAN AND ORS. 

Mansimran Kaur

Chennai, May 30, 2022: Observing that no Court can be dragged or hoodwinked by a party or a litigant to pass a decree or an order which it either does not have an authority in law to pass or which cannot be sustained in substantive law, the Madras High Court has held that if such order is found to be passed, then the decree or order so passed will be invalid.

On the procedure to be followed regarding the Memo of an advocate, the Bench of Justice N.Seshasayee asserted, “Unless a court decides to proceed exparte, no Court should act solely on a Memo of the counsel of the party conceding the substantive right of the party viz-a-viz the subject matter of the suit, or right of defence, for passing any non-adjudicatory decree or appealable orders. Before passing any such decree, the Court should apply its mind and satisfy itself in a manner that it considers appropriate and adequate that the defendant in the suit has conceded to the plaintiff’s claim. In cases of appealable orders of similar nature, before passing it, Court should ensure that the respondent in the application has filed at least an affidavit conceding to the interim prayer sought.” The Bench also noted that in other category of procedural orders not affecting the substantive rights of the parties, Court may act on a Memo of the counsel of the party, but it is not bound to act so.

The factual background of the case was such that the plaintiff/ first respondent filed 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 and a close relative to the plaintiff.Thereafter, the second respondent claimed that he was the owner of the suit property along with another, and instituted the revision petition to implead himself. The same was allowed but on failure on the part of the first respondent to carry out   amendment in the plaint, the suit was dismissed for default.

However, the plaintiff’s application for restoration of the suit along with the application for condonation of delay was allowed and consequently the suit was restored to file.At the time when the suit was restored, there was still only one defendant, who was 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, a Memo was 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’ and the Court decreed the suit on June 2, 2015 after recording the same. Challenging that the decree dated June 2, 2015 was vitiated by fraud, the second defendant had laid this revision.

The Court mentioned that 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. On the issue that the Trial Court chose to act on a memo allegedly filed by the counsel for the second defendant/revision petitioner, the Court marginally differed from the judgment of the Andhra Pradesh High Court in Syed Yousuf Ali v Mohd Yousuf and opined that the Court’s practice may accommodate a Court acting on a memo of the counsel of a party, but its permissibility depends on the situations in which the Court intends to act.

The Bench also placed reliance on the judgments of the various High Courts and Supreme Court in Mangayakarasi v Suseela, Byram Pestonji Gariwala v Union Bank of India, 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 judgment in 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. Thus, 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/ 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 Sec.54 of the Transfer of Property Act. The Bench also opined that if unfairness is seen manifest in an apparent procedural compliance which is shown to have produced unfair consequences, and thereby threatens the faith the litigant has in judicial system, then notwithstanding what may pass for procedural compliance, this Court may find a moment to exercise its powers under Article 227 of the Constitution.

In view of these findings, the Court observed that the revision petition of the petitioner was maintainable under Article 227 of the Constitution as the revision petitioner was plainly wronged in the instant case and was not given an opportunity to defend his case.  Thus, the decree passed by the subordinate 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.