TMI Blog1963 (4) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... istered 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allenged 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 case 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 case 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronounced 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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