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TMI Blog1963 (4) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances 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 shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ₹ 63,000/- is not pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 15. Rule 1 of O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ordinar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 men ..... X X X X Extracts X X X X X X X X Extracts X X X X
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