Suppiah V. Abdulla

Present: Jayewardene A. J.

SUPPIAH v. ABDULLA.

123-C.R. Colombo, 13,882

Case settled out of Court-Right of parties to have settlement entered of record, though one party repudiated it-Civil Procedure Code, s. 408.

The plaintiff sued the defendant for rent and for money advanced. While this action was pending, the defendant prosecuted the plaintiff for criminal trespass in the Police Court. The criminal case was settled, and it was recorded that if the complainant paid the rent due, accused was to withdraw the civil case. On March 6, the case came before the Commissioner, and was fixed for April 7 for settlement or judgment. The plaintiff denied that the case was settled, and defendant asked for an inquiry into the matter. The Commissioner refused to hold an inquiry, on the ground that if one of the parties repudiated the settlement before it was recorded by the Court, the Court could not give effect to it.

Held, that the settlement was binding on the parties.

THE facts are set out in the judgment.

Obeyesekere (with him Mervyn Fonseka), for defendant, appellant.

H. V. Perera, for plaintiff, respondent.

July 3, 1924. Jayewardene A. J.-

This is an action between a landlord and his tenant. The landlord sued the tenant to recover arrears of rent and also a certain-sum of money advanced to the tenant by the landlord, which formed the second cause of action. While the action was pending, but before answer was filed, the tenant, on February 25, 1924, criminally prosecuted the landlord for criminal trespass, criminal intimidation, and abuse. The case was adjourned from time to time, and on March 4 the following settlement was arrived at: "Now settled, complainant withdraws case. Accused to allow complainant to remain in the house till 5th proximo (that is, April 5), on payment of arrears of rent. If the complainant pays the rent due, accused will withdraw the case without costs." Answer in the case had to be-filed on March 6, and on that day there was an entry made to the following effect: "For settlement or judgment till April 7." On April 7 there is this entry: " For settlement or judgment. Defendant present. Mr. Jayasekera files proxy of defendant. Mr. Fonseka says that the case has been settled. Mr. Swan says it has not been settled." Mr. Fonseka appeared for the defendant and Mr. Swan for the plaintiff. The Court then fixed the matter for inquiry for April 15. The-proceedings of April 15 are thus recorded: "Inquiry. Mr. Fonseka, says that that he has filed papers to show that there was a settlement. He also tenders a Kachcheri receipt for the amount of arrears due Mr. Fonseka moves that the Court either inquire into the alleged settlement or set the case down for trial." And he tendered a certified copy of the Police Court proceedings and certain other-documents, D 2 and D 3. The Commissioner, I understand, refused to hold an inquiry into the alleged settlement, he said: "The case-has apparently not been settled now. The settlement contemplated by section 408 is one that the parties have arrived at and which they placed before the Court. If the parties at one time came to a settlement, and subsequently one of the parties repudiates it before-such settlement is recorded by the Court, the Court cannot give effect to the settlement. In this case so long as there is no settlement now, the Court has to enter judgment in terms of the order of March 6. Let judgment be entered for plaintiff as prayed for, with costs." The defendant appeals, and contends that the Court ought to have held an inquiry into the question whether there had been a settlement between the parties. It is to be noted that the settlement arrived at in the Police Court for the withdrawal of the present case on payment of arrears of rent does not say what the amount of the arrears.

is, or on what basis of monthly rental the arrears were to be calculated. This will have to be proved by oral evidence, if necessary, because the plaintiff contends that the arrears we