1963 Present: T. S. Fernando, J., and Tambiah, J.

D. A. SENANAYAKA and another, Appellants, and H. GAMAGE
and another, Respondents

S. C. 6/1962 (Inty.)-D. C. Colombo, 43850/M

Compromise of action-Terms duly recorded by Court-Memorandum in -writing not necessary-Meaning of word " motion "-Civil Procedure Code ss., 91, 408.

         A settlement and compromise entered into by the parties, notified to Court and recorded by the Judge in the course of a trial is not invalid merely because a memorandum in writing, embodying the terms of the settlement, is not filed when the terms of the settlement are recorded by the Judge. There is no requirement that section 91 of the Civil Procedure Code should be complied with when parties enter into a settlement under section 408.

    APPEAL from an order of the District Court, Colombo.

                           N. E. Weerasooria, Q.C., with W. D. Gunasekera, for the 2nd and 3rd defendants-appellants.

                            C. Ranganathan, for the plaintiff-respondent.

Cur. adv. vult.

February 6, 1963. TAMBIAH, J. -

   The short point for decision in this appeal is whether a settlement and compromise, solemnly entered into by the parties, notified to Court and recorded by the judge, in the course of a trial, should be ignored merely because a memorandum in writing of the motion, embodying the terms of settlement, has not been filed after the terms of the settlement have been recorded.

   The plaintiff brought this action on an Indenture of Lease No. 7762, dated 27 7 1947-, and prayed for the ejectment of the defendants from the premises described in the schedule to the plaint. The defendants, while admitting the signing of the Indenture of the Lease, averred that the plaintiff failed to deliver possession of the land and prayed for the

refund of the sum of Rs. 420 which, he alleged, was paid at the execution of the deed of lease. Under the Indenture of Lease, the defendants were entitled to put up certain buildings and possess the same for a particular period. At the trial, after the plaintiff and one of the witnesses had given evidence, the parties arrived at a settlement which was notified to Court on 19.9.1960, and was duly recorded by the learned District Judge.

        The terms of the settlement stated, inter alia, that the second and third defendants consented to ejectment without costs being entered in favour of the plaintiff in respect of the land depicted in Plan No. 656 dated 24.2.1960. Writ was not to issue till 31.3.1961. If the second and third defendants handed over vacant possession of the premises to plaintiff on or before 31.3.1961, the plaintiff undertook to pay the second and third defendants compensation for the building standing on the premises, depicted in the said plan, on an amount assessed by an independent valuer nominated by Court. The parties undertook to accept such valuation as final and conclusive. The plaintiff also undertook to pay the amount of such valuation within a period of three years from the date of it being notified by the valuer. The parties further agreed that the valuation should be done by one Mr. P. H. Wijesinghe.

       Mr. Wijesinghe filed his valuation report, dated 7.2.1961, and the plaintiff, who was dissatisfied with the said valuation, filed objections, dated 28.3.1961, in which he averred, inter alia, that Mr. Wijesinghe's valuation was grossly inflated and that he had not acted fairly and justly. It is not suggested that there was lack of consent by the parties to the terms and conditions of the settlement or that such terms were vague. At the inquiry, plaintiff's counsel led no evidence to show that the valuation was unfair, but he raised the objection that since no memorandum in writing, as required by section 91 of the Civil Procedure Code, had been filed along with the settlement, the settlement should be ignored and no decree should be entered