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Minoo Kaikushru Belgamwala and ors. Vs. Maneck Marzban Kothawala - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Case NumberAppeal No. 309 of 1960
Judge
Reported inAIR1964Kant185; AIR1964Mys185; (1963)2MysLJ137
ActsCode of Civil Procedure (CPC), 1908 - Sections 90 - Order 18 - Order 36, Rules 1, 1(1), 1(2), 2, 3, 4, 5, 5(1) and 5(2)
AppellantMinoo Kaikushru Belgamwala and ors.
RespondentManeck Marzban Kothawala
Appellant AdvocateS.G. Sundaraswamy and ;K. Balakrishnan, Advs.
Respondent AdvocateG.F. Muirhead, ;B. Sitaramiah and ;M.K. Viswanath, Advs.
Excerpt:
.....case both in regard to question of law. this means, as explained above, that, subject to the conditions mentioned above, being satisfied, the suit will be tried in the same manner as other suits, the parties being at liberty to establish their respective cases by adducing evidence......contained in order xviii of the code of civil procedure.30. thus, in our opinion, the learned judge was wrong in dismissing the case without following the procedure prescribed by order xviii of the code of civil procedure and in holding that it is not permissible for the parties to lead any evidence in proof of the facts stated in the case.31. for the reasons stated above, we set aside the judgment and decree passed by the learned district judge and remand the case to the district court for disposal according to law.32. the costs of this appeal will abide the result of the case. the institution fees shall be refunded to the appellants.33. case remanded.
Judgment:

Kalagate, J.

1. This appeal is directed against the judgment and decree-dated 21st March 1960, passed by the learned District Judge, Civil Station, Bangalore, in Original Suit No. 8 of 1958. The appellants are the two plaintiffs and defendant 2 whereas the respondent is the 1st defendant.

2. A few facts and circumstances leading to this appeal may shortly be stated as follows;

3. One Dinshaw Kaikhusru Belgamwala died intestate on 11th April 1953 leaving behind him surviving his mother Mrs. G.K. Belgamwala and his two sons defendants 1 and 2. The first defendant filed an application on 20th June 1956 in the Court of the District Judge, Civil Station, Bangalore, for the grant of Letters of Administration to the estate of Late Mr. Dinshaw Kaikhusru Belgamwala which was registered as Mis. Case No. 100 of 1956. The said application was opposed by the plaintiffs herein on various grounds. However, the parties arrived at a compromise and their shares were determined.

4. Under the law pertaining to Parsi intestacy, the mother was entitled to 1/9th share of the estate on distribution and the 1st and 2nd defendants were each entitled to 4/9th share. The parties agreed to these shares in the said compromise.

5. On 29th August 1955, Mrs. G.K. Belgamwala died leaving a will under which she bequeathed her estate in equal shares to her son and daughter who are the plaintiffs in this suit. The latter, however, raised a contention that sum of Rs. 63,000/- was due to their late mother from the estate of the said deceased Dinshaw Kaikhusru Belgamwala and, therefore, desired that amount being shown as a liability to be paid after obtaining the Letters of administration.

6. One of the terms of compromise arrived at in the Miscellaneous Case regarding the grant of the Letters, of Administration was that all the parties shall jointly state a case under Section 90 C. P. C. to the Court of the District Judge, Civil Station, Bangalore, to determine the claim of the plaintiffs in regard to the sum of Rs. 63,000/-, alleged to be due by the estate of the deceased D.K. Belgamwala to the estate of Mrs. G.K. Belgamwala the parties being at liberty to adduce all the necessary evidence before the Court.

7. In pursuance of this agreement dated 4th March 1957, the plaintiffs and the defendants filed in the Court of the District Judge, Civil Station, Bangalore, the agreement and stated a case for its opinion, under Section 90 read with Order 36, Rule 1 of the Code of Civil Procedure. Annexure A is the statement of the plaintiffs' claim. Annexure B is the statement of the defendants' objections. Annexure C is the plaintiffs' reply to the objection statements of defendants 1 and 2; and Annexure D is the rejoinder of the first defendant to the aforesaid reply.

8. The question which was submitted for the opinion of the Court has been mentioned In paragraph 13 of the statement of the case, which is to the following effect:

'Whether upon the facts above stated and in law the 1st Defendant as Administrator of the Estate of the late Mr. Dinshaw Kaikhusru Belgamwala is liable to pay the plaintiffs the sum of Rs. 63,000/- as claimed by them to be owing to the estate of the late Mrs. G.K. Belgamwala or alternatively If the said claim of Rs. 63,000/- is not payable in full whether any portion thereof is to be paid as aforesaid.'

9. Under paragraph 14, plaintiffs and defendants have agreed that the said sum of Rs. 63,000/- shall be payable or shall not be payable by the Estate of D.K. Belgamwala deceased to the estate of Mrs. G.K. Belgamwala deceased, according to the result of the finding of the Court and/or the Court of final appeal which may be preferred by any of the parties against the decision of the District Judge.

10. It is not necessary to refer to the case of the plaintiffs, the objections of the defendants and the reply and rejoinder, in detail. The agreement so filed was numbered as Order Section 8 of 1958. The learned Judge dismissed the case holding that It does not satisfy the requirements of Order 36 of the Code of Civil Procedure. Plain-tiffs and defendant 2 have joined in filing this appeal against the said order of dismissal of the case, and defendant 1 is the respondent.

11. In this appeal, Mr. S.G. Sundaraswamy, appearing for appellants 1 and 2, has challenged the correctness of the order of the learned District Judge, and is supported by Sri K. Balakrishna appearing for defendant 2's Advocate. It is contended that the learned District Judge has misread and misunderstood the relevant rules of Order 36 and Section 90 C. P. C. and, as a result, has dismissed the said case.

12. Mr. Sitaramayya, appearing for the respondent, on the other hand, contends that the order of dismissal can be supported on the true interpretation of the relevant rules of Order 36, C. P. C.

13. Before we proceed to examine the correctness or otherwise of the submissions made on behalf of the appellants and the respondent, we would like to relate the relevant provisions of the law.

14. Section 90 C. P. C. gives power to state a ease for the opinion of the Court. Where any persons agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed. That means, if the persons agree in writing to state a case for the opinion of the Court, the Court has to try and determine the same in the manner prescribed. Order 36 prescribes the manner of trial and determination of the case.

15. Rule 1 of Order 36 requires that parties claiming to be interested in the decision of any question of fact or law may enter into an agreement in writing stating such question in the form of a case for the opinion of the Court, and providing that, upon the finding of the Court with respect to such question, a sum of money fixed by the parties or to be determined by the Court shall be paid by one of the parties to the other of them- This is obvious from Sub-rule 1, Clause (a) of the said rule. We are not concerned In this case with Clauses (b) and (c) of the said Sub-rule.

16. Then Sub-rule (2) provided that every case state under this rule shall be divided into consecutively numbered paragraphs, and shall concisely state such facts and specify such documents as may be necessary to enable the Court to decide the question raised there by.

17. Thus, in effect, what is required is that there must be an agreement in writing entered Into by parties interested in the decision of any question of fact or law. The agreement is to further provide that, upon the finding of the Court with respect to such question raised, a sum of money fixed by the parties or determined by the Court shall be paid by one of the parties to the other of them. It is also clear that every case so stated must specify such facts and such documents as may be necessary to enable the Court to decide the question raised.

18. Rule 2 requires that the value of the subject-matter must be stated.

19. When that is done, then it is provided by Rule 3 that such agreement may be filed in the Court of competent jurisdiction, and when it is so filed, it shall be numbered and registered as a suit between one or more of the parties claiming to be Interested as plaintiff or plaintiffs, and the other or the others of them as defendant or defendants; and notice shall be given to all the parties to the agreement, other than the party or parties by whom it was presented.

20. Under Rule 4, the parties to the agreement shall be subject to the jurisdiction of the Court and shall be bound by the statement contained therein.

21. Rule 5 provides for the hearing and disposal of the case. Under Sub-rule (1), the case shall be set down for hearing as a suit instituted in the ordinary manner and the provisions of the Code of Civil Procedure shall apply to such suits so far as the same are applicable. Sub-rule (2) provides that where the Court is satisfied, after examination of the parties, or after taking such evidence as it thinks fit,--

(a) that the agreement was duly executed by them

(b) that they have a bona fide interest in the question slated there in,

and

(c) that the same is fit to be decided; it shall pronounce judgment thereon, in the same manner as in an ordinary suit, and upon the judgment so pronounced a decree shall follow.

22. These are the relevant provisions of law providing for the hearing and determination of a special case stated for the opinion of the Court. We have seen that when all the requirements of Rules 1 to 3 have been complied with, the case shall be set down for hearing under Rule 5 as a suit instituted in the ordinary manner and the provisions of the Code of Civil Procedure shall apply as far as possible.

23. Now the provisions regarding the hearing of the suit are contained in Order XVIII of the Civil Procedure Code. Therefore the casa will have to be heard and determined in accordance with the rules contained therein. This order contains 18 Rules, and Rule 1 deals with the right to begin.

24. Then under Rule 2, on the day fixed for the hearing of the suit, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. Under Sub-rule (2) the other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. Sub-rule (3) provides that the party beginning may then reply generally on the whole case.

25. Thus it is clear that when Rule 5 of Order 36, C.P.C. state; that a special case shall be set down for hearing as a suit instituted in the ordinary manner, then the hearing shall be in accordance with the rules contained in Order XVIII C. P. C. and, on the day fixed for hearing, the parties are required to produce their evidence In support of their respective case. The learned Judge for whose opinion a special case has been stated, has got to follow the procedure prescribed by Order XVIII C. P. C. and any question of fact which has been stated for the opinion of the Court has got to be proved by production of the evidence by the parties concerned.

26. The learned Judge in this case took the view that under Sub-rule (2) of Rule 1 of Order 36, the case 'shall state such facts and specify such documents as may be necessary to enable the Court to decide the question raised thereby' which, according to him, shows that all the facts necessary to help the Court decide the question must be stated and that the Court has not to investigate into the facts in order to know which of them are true and which of them are not. In other words, he states that the parties must be agreed on facts and call upon the Court to decide a question based on those admitted facts. He then refers to Rule 5 of Order 36 and holds that this rule requires that the Court should proceed to pronounce judgment on the facts mentioned in the case stated.

27. Order 36 Rule I clearly provides for statement of a special case both in regard to question of law. There would be no meaning in enabling a statement of a case on questions of fact if the contending party had to give an agreed statement of facts, and questions of fact were not open to investigation and decision, as the learn-ed Judge appears to have understood Rule 4 of Order 36 to mean. It is, no doubt, true that Sub-rule (2) of Rule 5 lends some colour to the view that judgment is to be pronounced by the Court immediately after the conditions (a), (b) and (e) mentioned in clause 2 are fulfilled, namely (a) that the agreement was duly executed by the parties, (b) that they have a bona fide interest in the question stated therein and (c) that the same is fit to be decided. It would look as if nothing else need Intervene between the satisfaction of the Court on these three matters (though in regard to them the Court is authorised to examine the parties) and the pronouncement of the Judgment. But this would totally ignore Clause 1 of Rule 5 which provides for the case being set down for hearing as a suit instituted in the ordinary manner and that the provisions of the Code shall apply to such suit so far as the same are applicable. This means, as explained above, that, subject to the conditions mentioned above, being satisfied, the suit will be tried In the same manner as other suits, the parties being at liberty to establish their respective cases by adducing evidence.

28. The provisions of the Rules of the Supreme Court of England relating to the statement of a special case are in pari materia. Part I of Order XXXIV relates to the statement of questions of law while Part II relates to issue of fact This procedure dispenses with the need for formal pleadings. The effect of Rule 4 of Order 36 of the Indian Code of Civil Procedure stating that the parties shall be bound by the statements contained in the agreement Is also, in our view the same, namely, that the respective statements of fact made by the two parties take the place of pleadings and It is not open to the parties to go behind it and not that they cannot prove the respective cases as put forward in the agreed statement.

29. In our opinion, the learned Judge has misread and misunderstood the effect of Sub-rules (1) and (2) of Rule 1, and Rule 5 of Order 36 of the Code of Civil Procedure. The view taken by him that Rule 5 impliedly prohibits the Court from taking any evidence outside the facts mentioned in the case stated, is erroneous. In terms, Rule 5 provides that after due compliance with the requirements of Rules 1 to 3, the case shall be set down for hearing as a suit in the ordinary manner and the Court has to try and determine the case in accordance with the rule contained in Order XVIII of the Code of Civil Procedure.

30. Thus, in our opinion, the learned Judge was wrong in dismissing the case without following the procedure prescribed by Order XVIII of the Code of Civil Procedure and in holding that it is not permissible for the parties to lead any evidence in proof of the facts stated in the case.

31. For the reasons stated above, we set aside the Judgment and decree passed by the learned District Judge and remand the case to the District Court for disposal according to law.

32. The costs of this appeal will abide the result of the case. The institution fees shall be refunded to the appellants.

33. Case remanded.


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