P L D 1959 (W (PLP)

3. This statement was made on the 7th of January 1957. Out of the persons named in the list, four persons applied on the 9th of January 1957 for being impleaded as parties on the ground that they were not being properly defended by their representatives whom they suspected of colluding with the plaintiffs. This appli cation was marked in ordinary routine for a report from the office, but before a report could be made, it was dismissed for default of appearance with the following order:‑ "Nobody appears. Dismissed in default."

4. The learned Senior Civil Judge went to the spot and after making some inquiries "from the representatives of the plaintiffs as well as of the defendants", he found that the plaintiffs were in fact the Mutwallis of the Khanqah and entitled to its offerings and he decreed the suit in terms of the prayer in the plaint. Against this decree an appeal was filed by the representatives of the defendants as well as by some persons named in the list. An objection was taken before the learned Additional District Judge that an appeal was not competent as the decree was a consent decree. The learned Judge overruled this objection and holding that it was not proper for the presiding officer of a Court to accept the position of an arbitrator as held in Baijnath v. Dhaniram (117 I C 611), he set aside the decree, and remanded the case for trial on merits. This is an appeal by the plaintiffs who claim that the learned Additional District Judge had no jurisdiction to hear the appeal and that the order of remand is illegal and improper.

5. On behalf of the plaintiffs appellants it has been urged that so far as the representatives are concerned they had no right of appeal because this was a consent decree within the meaning of section 96, Civil P. C. and also' because it was always open to a party to waive the right of appeal, and in this case by a clear implication the right of appeal had been waived. ' As regards others it is contended that they were not parties to the suit and therefore were not entitled to file an appeal.

6. So far as the question of the competency of the appeal is concerned, I am of the opinion that it is really not material for the decision of the present case, for, if 1 reach the conclusion that what happened in the trial Court (i.e., the statement and the decree on the basis of the statement) was in accordance with law then even if an appeal lay, it was not liable to be set aside on any ground. On the other hand, if I reach the conclusion either that the agree ment between the parties was not in accordance with law or that the representatives had no right to bind those whom they repre sented by the statement they had made, I would set aside the decree passed in the exercise of my revisional powers even if an appeal was incompetent.

7. However, the question of the competency of the appeal has been fully argued, and it will perhaps be proper that I should express my opinion. Under section 96, Civil P. C., an appeal lies against every decree, except a consent decree. It is argued that a decree which is the result of an agreement between the parties and which is not passed on an adjudication by the Court as Court is a consent decree. This is one aspect of the matter: Another aspect is that there can be a valid contract between the parties not to file an appeal. Even in the case of an adjudication by the Court as Court, there can be agreement between the parties that they will not file any appeal against the judgment delivered. There is a long string of authorities supporting the proposition that when the parties agree to a special procedure and undertake, either expressly or by implication, that they will not file any appeal against the decision, then an appeal does not lie. In some cases it is described as a consent decree under section 96, Civil P. C., and in others the decision is based on the general principle that the parties having accepted a particular procedure as a method of decision of their rights, cannot reprobate and go back upon their undertakings if the decision goes against them.

8. In Ganga Ram v. Jagu (I L R 15 Lah. 726) the parties agreed that the Court might decide the case after local inspection and local inquiry and in that event they would accept the decision of the Court as that of an arbitrator without any right of objection to it. It was held that the parties having agreed to accept the decision of the Court as that of an arbitrator without any objection, had impliedly agreed that the decision was to be accepted as final and that there was no right of appeal.

9. In Moonshee Amir Ali v. Maharanee Inderjeet Singh (14 Moore's I A 203) the parties agreed in the lower Appellate Court that the case may be decided only on the basis of the validity of the Mukhtarnama and that in that case they would not file any appeal. When the appeal was in fact filed; their Lordships said that this was in violation of good faith and that there had been a valid agreement not to appeal.

10. In Ramchandra Deo v. Chaitana Sahu (A I R 1920 P C 139) a suit for money was clearly time‑barred. The defendants had agreed, in spite of the bar of limitation, to pay such an amount as was in fact due and a decree had been passed against them. When the matter came before their Lordships, it was held that this was really a case of a consent decree (in spite of the fact that the Court had adjudi cated upon the amount due), because the claim being clearly time barred, no decree could have been granted at all on an adjudica tion. Their Lordships disallowed the appeal on the ground that it was a consent decree.

11. In Central India Spinning, Weaving and Manufacturing Co. Ltd. v. Khemraj Marwari (A I R 1939 Pat. 514) the parties had agreed that the Court should, on an inspection of the spot, decide whether a particular property was a part of the mortgaged property. It was held that this was a kind of compromise and that the parties have agreed upon a particular procedure were bound by the agreement.

12. In Bahir Dad Chakravarti v. Nobin Chunder (I L R 29 Cal. 306) the parties agreed to abide by the report of a Commissioner and it was held that they could not appeal if the report of the Commis sioner went against them.

13. In Bashir Ahmed v. Sadig Ali (A I R 1929 Oudh 451) the parties agreed to leave the case for the decision of the Court, giving the Court full powers to decide the matter as it thought fit. An appeal against the decree of the Court having been filed, it was held that the appeal was barred. To the arguments that section 96, C. P. C., gave a right of appeal against every decree, the learned Judges replied by saying : (1) That section 96 was subject to what was "expressly provided in any other law for the time being in force," and the Contract Act being a law which expressly provides other wise, because of the contract between the parties, the appeal did not lie, and (2) that this was a decree with consent as provided in section 96 (3), C. P. C. With the first of these reasons I must, with all respect, express my disagreement. The words "save where otherwise expressly provided" refer only to an express provision relating to the incompetency of an appeal or the finality of an order and are not intended to refer to a general provision in the Contract Act. The Contract Act does not contain any provision relating to appeals.

14. In Neti Venkata Somayajulu v. Adusumilli Venkanna (A I R 1934 Mad. 397) it was held that where the parties to a proceeding agree to be bound by the decision of the Court, the intention is to give up the right of appeal, and the decree in such cases is .a decree with consent, but in order that the parties may be bound by the agree ment and the right of appeal may be held to, be waived, there must be a violent departure from the ordinary procedure of Court. Every departure from the procedure prescribed by the Civil Proce dure Code will not lead to the inference that the parties were necessarily waiving the right of appeal.

15. In Baijnath v. Dhani Ram (A I R 1929 All. 577) the parties had agreed to constitute the presiding officer of the Court as an arbitrator and had agreed to be bound by the decision, and it was held that no appeal lay.

16. In S. E. Makudam Muhammad v. T. V. Muhammad Shiekh Abdul Kadir (A I R 1936 Mad, 856), it was held that when the parties accepted a procedure, which was extra cursum curiae, they were estopped from challenging the decision given in accordance with that procedure.

17. I am of the opinion, in the first place, that every decree passed on the basis of a lawful agreement or compromise in accordance with Order XXIII, rule 3, is a consent decree and is not open to appeal. It has been urged before me that a decree by consent only means a decree to the contents of which the parties have agreed. If I were to accept this interpretation, the result would be that in those cases where a decree is passed on ‑the basis of a compromise, which itself records the terms of the decree to be passed, no appeal would lie, but in a case where there is an agreement between the parties by which a suit stands adjusted, but the agreement does not by itself state the terms of the decree that is to be passed, an appeal would lie. I do not see why I should place decree based on agreements in two categories, and it seems to me reasonable to hold that in a case where Order XXIII, rule 3, applies, the decree should not be open to appeal. I do not see on what point an appeal would be competent if the agreement was in fact lawful. Suppose there is an agreement that a decree will be passed in accordance with the statement made by a particular person, either after inquiry or otherwise, and a decree is in fact passed after the statement of that person. Either we hold that the agreement itself is unlawful in which case Order XXIII, rule 3, will not be attracted at all and there being no lawful agreement between the parties, a decree could not be passed, but if We reach the conclusion that there is a lawful agreement, then what point could be urged in appeal ? The real reason why an appeal against a decree by consent does not lie is that there is nothing to appeal about. A person may appeal on the point that in fact he never consented. There is no bar to that, because in that case he is alleging that there is no consent decree. There may also be an appeal on the ground that there was no valid consent for that also means there is no consent. But once it is accepted that a decree is passed by consent, there is nothing to be urged in the appeal.

18. I may point out here that agreements, like the one made in the present case, have been generally held by Courts to be in accordance with law and to be agreements within Order XXIII, rule

3. I should, however, state here my doubt as to the legality of those agreements where it becomes clear that the parties are making the presiding officer of a Court an arbitrator, i.e., he has to determine, a matter in a judicial or quasi‑judicial manner, though he is not bound by any particular procedure or the Evidence Act. An arbitrator after all is nothing but a person who is exercising judicial functions not on appointment by the State but on nomination by the parties. In case the Judge is made an arbitrator, I would not be prepared to hold, in spite of some authorities which may tend to create an impression to the contrary, that the procedure is legal and that a decree can be passed on what is really the award of the presiding officer of the Court. Whatever may have been the position before 1940 when the present Arbitration Act was passed, no award can now be given effect to except in accordance with the provisions of that Act. This is expressly provided in the Act. In respect of awards made in cases where the parties to a suit agree to arbitration, there have to be objections to the award by the parties before the Court in which the suit is pending. This necessarily implies that the presiding officer of the Court cannot be the arbitrator himself, for he cannot adjudicate upon the objections to his own award. I should not be understood, however, as barring all agreements between the parties in respect of the procedure adopted. If it be clear that the parties are only accepting some change in the procedure adopted by the Court and that otherwise the matter is to be decided by the Court as Court, there is nothing wrong or improper in the agreement and the parties would, in the absence of anything to the contrary in law or in the principles of natural justice, be bound by it. But in such a case there is no reason why an appeal should not be unless it be implied in the agreement that there will be no appeal.

19. That the parties can waive a right of appeal is established by the judgment of their Lordships of 'the Privy Council in Moonshee Ameer Ali v. Maharanee Inderjeet Singh.

20. Another point argued before me was as to whether those who had been mentioned in the list attached to the plaint but who were not made parties could file an appeal to the District Judge. It was contended on behalf of the present appellants that in a suit under Order 1, rule 8, C. P. C., the only persons who are parties to the suit are the representatives who are named as parties in the suit and not those whom they represent and, therefore, it is only they who can file an appeal against the decree passed. It is urged that although section 96 does not say so in express words, it does imply that it is only a party to the proceedings who can file an appeal against the decision in those proceedings. Reliance was placed on Mst. Afzalunnisa v. Fayazuddin (A I R 1931 Lah.610) and Udmi v. Hira (A I R 1920 Lah.338), in which cases a person not actually a party, but who was represented by a party in a suit under Order I, rule 8, had died and a question arose as to whether failure to implead his legal representative caused any abatement on the proceedings. It was held that he was not in fact a party and, therefore, the failure to implead his legal representatives did not cause the suit or appeal to abate.

21. While I accept the, proposition laid down in the two cases, I am not prepared to accept that a person who is represented by another in a suit under Order I, rule 8, is not entitled to file an appeal at all. After all it is he who is being represented by another and, therefore, he is substantially, though not technically, a party to the suit. He is bound by every decree passed in the suit. It will be surprising that a person bound by a decree should have no right of appeal against a decree. Order I, rule 8 (2), provides that a person who is represented by another in a suit may apply to be made party. It will be observed that the rule does not say that the Court will consider the question as to whether he is to be joined as a party or not. It appears to me that he has a right to be made a party. This in fact, was conceded by learned counsel for the appellants. If he has a right to be made a party during the pendency of the suit itself, why cannot he be made a party when an appeal is to be filed. An appeal is after all only a continuation of the proceedings in the suit. There is no separate provision for an application under Order I, rule 8, in the case of an appeal, and it has been held that once representa tives have been appointed they continue for the purpose of appeal. Either we should accept, on account of what is contained in Order I, rule 8 (2), that he has a right to be made a party at any stage of a suit and give him the right to be made a party at the stage of appeal also, or we should at least leave it to the discretion of the Appellate Court to allow him to be made a party at the stage of appeal and to file an appeal. The form in which the appeal should be filed, would be that he would also file an application to be made a party along with the memorandum of appeal. Ordinarily I see no reason why the Court would not allow him to file an appeal. As pointed out in P. Ammal v. State of Madras (A I R 1953 Mad. 485) it has been the consistent practice of the English Courts to allow a person not a party to a suit, to file an appeal with the leave of the Court if his interests are affected by the decree. The only distinction between the right of appeal of a person affected and that of a party is that in the case of the former the leave of the Court is necessary. To the same effect is the decision in A I R 1949 Bom.

141. I have no doubt that in the case of proceedings under Order I, rule 8, the Court would not refuse leave to the person who is represented by another and who is substantially a party and is bound by the decision.

22. On behalf of the respondents it has been argued that the five representatives had no authority to bind others by an agreement or compromise and that the only authority, as granted to them by the Civil Procedure Code and by the order of the Court; was that they could defend the suit on behalf of the persons affected. But when authority is given to persons to defend and to represent others, it also involves that they can enter into any agreement which they think is necessary for the proper prosecution of the suit. It will be difficult to contend that they could not refer the matter to arbitration, if they regarded it as advisable and in the interest of those whom they represent. The only question would be whether they acted bona fide and with reasonable care. If they acted in collusion with the opposite party of course the agreement would be set aside. If they acted with gross negligence, they could not bind those whom they represented. Their position is similar to the guardian of a minor, who is to act in the interest of the minor and whose acts, in the absence of bad faith or gross negligence, are to bind the minors.

23. At the same time the Court has a duty cast upon it in such cases as in the case of minors who are represented by guardians. The Court should see that the representatives are acting in the interest of those whom they represent and that they are acting with reasonable care.

24. In the present case I am not satisfied that the learned presiding officer of the Court was taking all the care that he should have taken. It will be observed that the plaintiffs had closed their evidence and the defendants had not begun leading evidence. The defendants agreed to the case being decided on inspection of the spot or without such inspection, but it is difficult to see how the inspection of the spot could lead to a conclusion as to who were the Mutawallis and Mujawars and the case would have to be decided on the evidence on record. Only two days later an application had been put in by four of the persons named in the list that they suspected the conduct of the representatives and wanted to be impleaded as parties. The way in which the learned Senior Civil Judge has dealt with the application is open to objection. He dismissed the application in default, but an application can be dismissed in default only on a date which was fixed for hearing and certainly there was no date fixed for hearing The learned Judge might have objected that somebody should be present who would present the application, but that is not the objection on which he dismissed the application. He had marked the case for report to the office, but he dismissed the application even before the report was received from the office.

25. I now come to the point on which I intend to rest my decision. The point has not been taken in the Courts below, bur is a pure question of law and can be raised at any stage. Under sections 24 and 25 of the Punjab Auqaf Act, the Auqaf Board is a necessary party to every suit relating to the administration of a waqf, and no compromise of any kind as to the rights of Mutawalliship can be entered into without the leave of the Board The only reply of the learned counsel for the appellants to this objection is that probably a Board had not been constituted 'on the date on which this compromise was entered into. However. a notification has been produced before me that a Board had in fact been constituted on the 5th of January 1953. Under the circumstances the compromise was illegal and has to be set aside.

26. This appeal is, therefore, dismissed and the case shall proceed in accordance with law as directed in the order of remand, but the Auqaf Board has to be made a party in accordance with the Punjab Auqaf Act. The plaintiffs shall be allowed to amend their plaint and implead the Board. There is no order as to costs of this appeal. A.H. Appeal dismissed.