S.M. Moosa Sahib vs Darisa Subbamma and Another

Horwill, J.—The second defendant, the son of the plaintiff, was a servant or agent of the first defendant. The second defendant used a sum

of money belonging to his mother for the purpose of the business of the first defendant; and the plaintiff brought this suit against her son and his

principal to recover this sum. It appeared from the accounts of the first defendant kept with the second defendant that the account of the second

defendant with the first defendant was credited with this amount. That first defendant objected to the maintainability of the suit on the ground that it

was really a matter between himself and the second defendant and that there was no privity of contract between him and the plaintiff. On the 10th

August, 1934, the plaintiff put in a petition for the appointment of a Commissioner to settle the accounts of defendants 1 and 2, as she was willing

to take whatever was found due on accounting. Both the defendants endorsed this application with a statement that they had no objection to the

appointment of a Commissioner and that each was willing to pay the other what might be found due from the one to the other upon account being

taken, and that the Court might pass a decree for the amount found due. A Commissioner was appointed and he sent in a report to the Court to

the effect that a certain sum of money was due by the first defendant to the second defendant on accounts. The Court was then faced with the

difficulty of granting a decree in favour of somebody who was not the plaintiff. A petition was therefore put in by the plaintiff to transpose the

second defendant as second plaintiff. An objection was raised on the ground that Order 1, Rule 10 did not apply, and that therefore no such

transposition could be made. The first defendant attempted to resile from the agreement and the Court went on with the trial as if no agreement had

taken place. In appeal the Subordinate Judge came to the conclusion that this agreement ought to have been supported by the Court and that the

District Munsiff should have transposed the second defendant as second plaintiff, if necessary for the ends of justice. He therefore remanded the

suit for fresh disposal on the basis of the agreement.

There can be no doubt at all that the first defendant should not be allowed to resile from the agreement entered into freely by him to pay

whatever might be found due by the Commissioner and to avoid having that debt embodied in a decree. Although the procedure adopted is not

contemplated by the Procedure Code, it has been constantly recognised by Courts. One case in which such an agreement was upheld is reported

in S.E. Makudam Mohammad Vs. T.V. Mohammad Sheikh Abdul Kadir and Another, in which Pandrang Row, J., referred to English and Indian

decisions and held that by the agreement the Court became an arbiter and that if the parties agreed to accept the arbitration of the Court they were

bound by it even though the procedure of the Court was extra cursum curiae and not contemplated by the Procedure Code.

The real difficulty in this case is due to the fact that the amount is found due in a suit brought by the plaintiff for a sum of money due to the

second defendant as a result of account taking between the first defendant and the second defendant. It is quite true that Order 1, Rule 10 will not

in terms apply to a case of this kind; and if there had been no agreement between the parties the District Munsiff would undoubtedly have been

justified in refusing to transpose the second defendant as second plaintiff. Notwithstanding the other provisions of the Procedure Code, it is always

the policy of the Court to enforce, if possible, any agreement entered into between the parties; and in special circumstances where a grave injustice

would be done if the Court did not exercise its inherent powers, I have no doubt that the Court is entitled u/s 151, Civil Procedure Code, to do

justice by giving effect to the agreement of the parties. When the first defendant agreed to pay the second defendant or plaintiff such sum as might

be due on taking accounts, he impliedly agreed to such changes being made in the nature or frame of the suit as to give effect to the finding of the

Commissioner. I therefore agree with the lower appellate Court that the learned District Munsiff was wrong in allowing the first defendant to resile

from the agreement and in refusing to pass a decree in terms of the report of the Commissioner.

It is argued that the agreement entered into would not comply with the provisions of Order 23, Rule 3, which requires a decree to be passed

only so far as the agreement relates to the suit. I do think there is much force in this objection because the suit related to a sum of money lent by the

plaintiff to the first defendant through her son, and the object of the inquiry by the Commissioner was to ascertain whether the whole of that sum or

if not what part of it, was payable to the plaintiff.

The order of the appellate Court is not that the decree should be passed in terms of the Commissioner''s report, but merely that a decree should

be passed in the light of its remarks that the agreement was a valid one and that there could be no objection to the transposition of the parties if

necessary in the interests of justice. That was a correct order. This appeal is therefore dismissed with costs.

Leave is granted.

A civil Revision Petition has also been filed by way of caution. The C.R.P. is unnecessary and is dismissed; but in view of the fact that costs

have been awarded in the Civil Miscellaneous Appeal there will be no order as to costs.