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1959 Supreme(AP) 238
Andhra Pradesh High Court
Judges : MOHAMMED AHMED ANSARI, P.CHANDRA REDDY, SRINIVASA CHARI
Munnaluri Venkateswarlu - Appellant
Versus
Vaddula Narasi Reddy - Respondent
Decided On : 11-20-59
The right to appeal is an important right that can only be given up by a clear agreement, either in express terms or by necessary implication. Where the agreement puts the original court so much out of its usual course as to prevent the appellate court from properly reviewing the decision, the right to appeal would be lost as the reasonable consequence of the authorization to adopt such a different course.
Headnote:
RIGHT TO APPEAL - WAIVER - AGREEMENT TO ABIDE BY DECISION OF COURT - EFFECT - PROCEDURE FOLLOWED BY COURT - FUNDAMENTALLY DIFFERENT FROM USUAL PROCEDURE - RIGHT OF APPEAL LOST - DECISION EXTRA CURSUS CURIAE - NO APPEAL LIES.
Fact of the Case:
Plaintiffs filed a suit for mandatory and permanent injunction against the defendants, alleging that the defendants had raised the height of a bund and altered the flow of rainwater, causing inundation of their land. The parties filed a joint memo agreeing to abide by the decision of the trial court based on personal inspection and documentary evidence, without adducing oral evidence.
Finding of the Court:
The trial court, after inspection and consideration of documentary evidence, ordered the defendants to remove the bund and prevent interference with the flow of water. The defendants appealed, and the plaintiffs filed cross-objections. The lower appellate court dismissed the appeal and cross-objections, holding that the parties had waived their right to appeal by agreeing to abide by the trial court's decision.
Issues: 1. Whether the parties had waived their right to appeal by agreeing to abide by the trial court's decision. 2. Whether the trial court's decision was extra cursus curiae, resulting in the loss of the right to appeal.
Ratio Decidendi: 1. The right to appeal is an important right that can only be given up by a clear agreement, either in express terms or by necessary implication. 2. The waiver of the right of appeal should be implied from the terms of the agreement or gathered from the conduct of the parties as a question of fact in each particular case. 3. If the parties agree expressly or impliedly not to appeal from the decision of a court, the agreement must cover the decision from both facts and law. 4. Where the agreement puts the original court so much out of its usual course as to prevent the appellate court from properly reviewing the decision, the right to appeal would be lost as the reasonable consequence of the authorization to adopt such a different course. 5. The correct test for judging whether the right to appeal be lost is to ascertain what procedure the original court had followed because of the agreement. Should because of the agreement the procedure for reaching the decision be fundamentally different to that usually followed by Courts, the right of appeal would be lost.
Final Decision: The court held that the parties had not expressly or impliedly waived their right to appeal, and that the trial court's decision was not extra cursus curiae. Therefore, the lower appellate court erred in dismissing the appeal and cross-objections. The court directed the lower appellate court to determine the merits of the appeal and cross-objections.
( 2 ) THE suit out of which the aforesaid appeal and the cross-objections have arisen was for a mandatory and a permanent injunction. The plaintiffs have claimed that there was a donka between their fields, shown as A and B in the sketch attached to the plaint and that of the 1st defendant shown as C in the sketch and that the rain water from the defendants as well as other fields towards the north used to flow through the donka towards the south, the donka having been marked as D, D-1, D-2 and D-3 in the, plaint sketch map. The plaintiffs case further is that the Highways Department had laid a road in the middle of the donka, having on either side of the road a channel for rain water to flow from the adjoining field. The next part of the plaintiffs case is that the 1st defendant in collaboration with the 2nd defendant who is a maistri in the Highways Department, had cut the new road to the width of about five yards and had raised the height of the western bund in the 2nd plaintiffs field and also the level of his own land, so as to bring it on a level with the road. The plaintiffs complain that these acts have prevented the rain waters from flowing along with channel left by the Highways Department on the defendants side of the new road and have caused diversion through the breach in the road, with the result that the entire water now rushes and enun-dates the plaintiffs land.
( 3 ) THEY have therefore claimed a mandatory injunction to fill in the breach in the road, and to remove the bund raised on the 1st defendants land. They have further asked for permanent injunction to restrain the 1st defendant from interfering with the flow of water in the canal along bis side of the field.
( 4 ) THE written statement by this defendant is that the water from his land used to flow into the donka and thereafter through the kandakam situated between the lands of the two plaintiffs. It has been further pleaded therein that the Highways Department bad not due regular canals on either side of the road, and had failed to provide for the flow of the rain water from the neighbouring fields, which had caused the rain water to flow into the ditches and pits on either side of the road without any regular course. The next important averment in the written statement is that the Highways Department on representation had removed the earth put across the water course in the donka, placed earth to the east of the plaintiffs land and also made the defendants lands safe against enundation.
( 5 ) THE District Munsif had framed three issues, the first being whether the plaintiffs were entitled to injunction, the next whether the suit was bad for non-joinder of parties and the third whether the 2nd defendant was a necessary party. Before the aforesaid Judge, on 3/07/1951 a joint memo was filed by the parties to the following effect:"both the plaintiffs and defendants agree to abide by the decision given by the Honble Court based upon personal inspection of the suit locality and documentary evidence. Both parties agree not to adduce any oral evidence. "
( 6 ) IN pursuance of this Memo the District Munsif inspected the locality in the presence of both the parties and their vakils on 16/03/1952, but the result of this inspection has not been reduced into writing and made part of the record. The documentary evidence on behalf of the plaintiffs is Ex. A. 1, which is the plan prepared by a Commissioner and Ex. A-2, the report by the same person. The evidence on behalf of the 1st defendant consists of copies of several orders issued by the Divisional Engineer of Guntur and of the endorsement on the petition filed by the 1st defendant. Ex. B-6 is the report and Ex. B-7 is the plan prepared by the Commissioner on his be
