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Civil Revision No. 1265/1) of 1986, decided on 27th May, 1986.

---S. 96(3), 6. XVIII, R. 18 & O. XXII1, R. 3--Compromise of suit-- Consent decree--Appeal--Evidence in suit having been recorded yet parties agreed to settling dispute through a different mode viz. inspection of spot by Court with an undertaking that such mode of settlement of question in dispute was to be binding upon them--Appeal against decree passed in such compromise of suit was not competent.

A Court has the power to inspect under Order XVIII, Rule 18, C . P. C . which says that the Court may at any stage of a suit inspect any property or thing concerning which any question may arise. It is true that a decision as a matter of course follows on the evidence recorded in a case. A Court's inspection, note or views cannot supersede the evidence on the record which inspection is for the purpose of understanding the controversy and the evidence on the record. It is not a substitute for the evidence and a judgment cannot be based ordinarily upon an inspection but were the parties agree to be bound by the inspection of the Court in preference to the evidence adduced or without adducing the evidence then a judgment based upon an inspection is binding upon the parties because it results from a consented course. In the present case no doubt the evidence had been recorded yet the parties agreed to the settling of the dispute through a different mode. That impliedly meant that the parties realised that the evidence adduced on both the sides would not be decisive of the case, that is why they agreed for the case to be decided on the inspection of the Trial Court and gave an undertaking that, that mode of settlement of the question in dispute was to be binding upon them so where the parties give their consent to the Court as to the procedure which the Court is to adopt in the matter of coming to a decision on the merits of the case and they also give their consent that such a decision will be binding on them. it is tantamount to saying that the decision will be final and no right of appeal will be exercised by the parties. The parties cannot resile from the agreement and an appeal is incompetent.

Where, with the acquiescence of both the parties a judge departs from the ordinary course of procedure and decides upon a question of fact, it is incompetent for the parties afterwards to assume that they have then an alternative mode of proceedings and to treat the matter as if it had been heard in due course.

The decree based upon the inspection of the Trial Court having been agreed upon as decisive of the case in preference to the evidence recorded and undertaken to be binding was for all the intents and purposes a consent decree, it is, therefore a correct view that no appeal lay therefrom under section 96(3), C.P.C.

Abdul Wahid for Petitioners.

This civil revision arises out of a suit instituted on 24-11-1982 by respondent No. 1 against the predecessor-in-interest of the petitioners and respondents Nos. 2 to 5 in the Civil Court at Sialkot, for permanent injunction ordering the predecessor-in-interest of the petitioners and respondents Nos. 2 to 5 to remove a spout of the latrine emitting refuse and foul water and to restrain him permanently from using the same alleging that their houses were situated so adjoiningly that the Southern wall of the house of respondent No. 1 was adjacent to the Northern wall of the house of the predecessor-in-interest of the petitioners and respondents Nos. 2 to 5.and towards the North of the adjoining wall respondent No. 1 was keeping his kitchen shown as A.B.C.D. in the site plan where also a Dehori of the predecessor-in- interest of the petitioners and respondents Nos. 2 to 5 was shown as C.D.E.F. The predecessor-in-interest of the petitioners and respondents Nos. 2 to 5 had constructed a latrine on the North Eastern edge of the top of the Dehori, the spout of which was constructed on the point E. G. Later on the predecessor-in-interest of the petitioners and respondents Nos. 2 to 5 with the reconstruction of the latrine constructed the spout on the point C.H. by closing the old spout. The spout so constructed issued out filth, bad smell, gases and foul water injurious to the health which passed by the door of the kitchen of respondent No. 1 and that had altogether become a worst nuisance. Malik Hadayat Ullah, the predecessor-in-interest of the petitioners and respondents Nos. 2 to 5 controverted the suit by denying the averments in the plaint and maintained that he had constructed the spout long ago so the suit brought much thereafter was not competent. The spouts of both the houses adjoined each other and were in use. The respondent No. 1 had no cause of action.

2. The trial Court after recording the evidence fixed the case for arguments. Then on 6th March, 1985 the parties and their counsel made a statement before the learned trial Court that after inspecting the spot whatever the decision as to the matter in dispute the Court came to would be acceptable to them which statement was recorded by the Court and pursuant to its report it observed that the spout of Mian Hadayat Ullah connected to the flush-fitted latrine was at a distance of one and a half feet from the kitchen of respondent No. 1 which poured the refuse and filth in the street near the kitchen of respondent No. l as there was no gutter in the street. The respondent No. 1 had a genuine grievance as his kitchen was quite adjacent to that. As a result thereof the learned trial Court decreed the suit directing the predecessor-in-interest of the petitioners and respondents Nos 2 to 5

to remove the spout from that place and take that back to the first position vide the judgment, dated 7-3-1985.

3. Malik Hadayat Ullah being aggrieved of the decree passed by the learned trial Court filed an appeal which came to be decided by the learned Additional District Judge, Sialkot, during which appeal Malik Hadayat Ullah died and his legal representatives prosecuted the appeal. Before the learned Additional District Judge the main consideration was that whether the appeal was competent as having been filed from a consent decree. The stand of the petitioners and others was that the decree could not be classed as a consent decree because the learned trial Court had acted as a referee in the case. The learned Additional District Judge opined that the contention, so raised, had no force and relied upon Sits. Ram v. Peare alias Alloo and another A I R 1925 All. 558, a Division Bench decision, in this case where the dispute between the parties was as to whether the spout in question was or was not to be closed, the parties had agreed to abide by the Court's decision after the local inspection. It was held:-

.. . The matter in dispute was left entirely to the decision of the learned Munsif, and, in our opiniod', the parties cannot now resile from their agreement and must be bound by the decision of the learned Munsif whether it was, as a matter of fact, right or wrong. The decision, therefore, must be treated to have been one based on a compromise between the parties and was no longer open to appeal."

He also relied on an unreported decision of this Court Talib Hussain v. Muhammad Ali etc. Civil Revision No. 430-D of 1985 decided on 19-2-1986, in which the same view was expressed. The learned Additional District Judge by holding that the appeal did not lie dismissed the same vide his judgment, dated 16-4-1986.

4. The learned counsel for the petitioners in taking an exception to the above-said judgment of learned lower appellate Court has attempted to make much of the word "referee" mentioned in the report of the learned trial Judge who expressed himself that in view of the statements of the parties as a referee he came to the spot for the purpose of finally settling the dispute between the parties as to the spout and inspected the same. What the learned counsel has tried to argue is that the Court was acting as a referee, therefore, the report of the Court was open to all the objections if any party wished that way. The Court instead of inviting the objections proceeded to decide the case straight away, which could not be done. Under the law a referee could act under special circumstances as warranted by the law that he would not proceed with a judicial inquiry and on his own opinion he would give a decision but contrary to that, the learned trial Court acting as a referee conducted a judicial inquiry at the spot, recorded the statements, prepared the report Exh. C.1 which is against law and the learned appellate Court had not considered that legal proposition and many other points have been raised by the learned counsel which are all off the point. The only question which in fact involved is simple whether the decree passed by the trial Court was a consent decree and if so whether there lay no appeal from the decision of the trial Court as that was come to by the consent of the parties. The learned counsel has also relied upon Muhammad Akbar and another v. Muhammad Aslam and another P L D 1970 S C 241. The question involved in this case was that whether an agreement between the parties that the Court light decide the disputes arising in the suit in accordance with the statement made by a third person was an adjustment within the purview f Order XXIII, rule 3, C.P.C. or a contract which the Court in its discretion might decline to enforce. The learned Court observed:-

"An agreement that the Court may decide the matters in dispute between the parties in accordance with the statement of a third person is not covered by the provisions of any one of these statutes."

"The provisions of rule 3, Order XXIII, C.P.C., become applicable when 'the suit has been adjusted wholly or in part by any lawful agreement or compromise or when the defendant satisfies the plaintiff in respect of the whole or any part of the suit.' The mere agreement that the suit may be decided in accordance with the statement of the third person, therefore, did not amount to an adjustment of the suit."

"Similarly, the Arbitration Act applies only when an agreement to refer the disputes between the parties to one or more arbitrators for decision is executed. It was not contended that the third person was appointed arbitrator. On the contrary the respondents disputed this position before the trial Judge. The correct position, therefore, is that the agreement that the matters in dispute may be decided in accordance with the statement of a third person was in the nature of a contract and the trial Court could in its discretion decline to hold the appellants by it. The exercise of discretion will depend on the facts and circumstances of each case."

A Court has the power to inspect under Order XVIII, rule 18, C.P.C. which says that the Court may at any stage of a suit inspect any property or thing concerning which any question may arise. It is true that a decision as a matter of course follows on the evidence recorded in a case. A Court's inspection note or views cannot supersede the evidence on the record which inspection is for the purpose of understanding the controversy and the evidence on the record. It is not a substitute for the evidence and a judgment cannot be based ordinarily upon an inspection but where the parties agree to be bound by the inspection of the Court in preference to the evidence adduced or without adducing the evidence then a judgment based upon an inspection is binding upon the parties because it results from a consented course. In the present case no doubt the evidence had been recorded yet the parties agreed to the settling of the dispute through a different mode. That impliedly meant that the parties realised that the evidence adduced on both the sides would not be decisive of the case, that is why they agreed for the case to be decided on the inspection of the learned trial Court and gave an undertaking that, that mode of settlement of the question in dispute was to be binding upon" them so where the parties give their consent to the Court as to the procedure which the Court is to adopt in the matter of coming to a decision on the merits of the case and they also give their consent that such a decision will be binding on them, it is tantamount to saying that the decision will be final and no right of appeal will be exercised by the parties. The parties cannot resile from the agreement and an appeal is incompetent. See (Hakim) Bashir Ahmed v. Sadiq Ali A I R 1929 Oudh 45 where, with the acquiescence of both the parties a Judge departs from the B ordinary course of procedure and decides upon a question of fact, it is incompetent for the parties afterwards to assume: that they have then an alternative mode of proceedings and to treat the matter as if it had been heard in due course. See Madan Mohan Gargh v. Munna Lal and others A I R 1928 All. 497. In Lal v. Siddiq and others P L D 1961 (W.P.) Lah. 823, in answer to what is a consent decree it has been observed that:

"The word 'consent' occurring din section 96(3), C.P.C., or the term 'consent decree', is nowhere defined in the Civil Procedure Code. In the language of Webster's New International Dictionary, the word 'consent' means: 'voluntary accordance with, or concurrence in what is done or proposed b another.' The word consent is also defined in sections 13 of the Contract Act in the following terms. Two or more persons are said to consent when they agree upon the same thing in the same sense.' 11 would appear, therefore, that the decree contemplated in subsection (3) of section 96 is a decree passed by the Court on the basis of a proposal made by one party and concurred in or agreed to by the other. In other words, this is a decree which is not the result of an adjudication by the Court but springs from the agreement or the concord of the parties themselves."

"The true test for determining whether or not a decree should be regarded as a consent decree, lies in ascertaining the real intention of the parties, and not merely whether a particular procedure, for example the one embodied in Order XXIII, rule 3, C.P.C., has been observed. If, from the circumstances of the case, the real intention of the parties can be gathered to the effect that they are binding themselves to a particular decree by reason of an agreement, compromise or adjustment then the decree must be regarded as a consent decree, from which no appeal would lie in accordance with section 96(3) . Most of such cases would fall within the purview of Order XXIII, rule 3, C . P. C . , but there may be cases not falling strictly within the four corners of this rule, which would nevertheless be cases of consent decrees."

Viewed as such the decree based upon the inspection of the learned trial Court having been agreed upon as decisive of the case in preference to the evidence recorded and undertaken to be binding was for all the intents and purposes a consent decree, the learned Additional District Judge took a correct view that no appeal lay therefrom under section 96(3), C.P.C. This civil revision is, therefore, dismissed in limine being without any substance.

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