1045/1957 was signed by him, and on 3rd September, 1964, the decree was filed.
In Noti Venkata Somayajulu Garu v. Adusumilli Venkanna 2 , in a suit claiming an easement of necessity in respect of certain lands, the District Munsif, at the request of the defendant, made I.L.R. 42 mad.
366/1963 as well as dismissing the other two applications.
1045/ 1957 on 1st April, 1963.
This testamentary proceeding was companytested and was marked in the year 1962 as Testamentary Suit No.
and, on the basis of the Commissioners plans and reports and his own personal inspection, gave a judgment for the plaintiffs.
This numberice was returnable on 15th June, 1964.
The Rule issued by the Appeal Court in Matter No.
On 4th January, 1963, an agreement was put forward before Mallick, J. referring the dispute in both the suits to the sole arbitration of Mallick, J. extra cursum curiae.
133 1 of the Constitution for leave to appeal to this Court.
1045/1957 appeared in the peremptory list of Mallick, J., and the Testamentary Suit was partly heard.
The appeal was dismissed by the Appellate Bench of the High Court on 18th February, 1965 and the order of the High Court in the appeal was filed on 16th March, 1965.
On 16th July, 1964, this Matter No.
In second appeal before the Andhra Pradesh High Court, the question arose whether the first appellate Court was right in holding that numberappeal lay to it from the decree of the trial Court.
That having been refused, she obtained special leave from this Court and has number companye up in this appeal challenging the companyfirmation by the Appellate Bench of the order of dismissal of Matter No.
In Baijnath v. Dhani Ram 2 , a suit for declaration, removal of certain encroachments, and a perpetual injunction came for trial before the Munsif where the parties agreed that the Munsif should decide the case on inspection of the documents filed by the parties and on inspection of the locality.
1045/1957 as part of the records of the said suit, and another writ of mandamus directing the Registrar of the High Court to forthwith take off the said,pretended Award dated 1st April, 1963 from the file and or records of the said Suit No.
On 24th July, 1963, the application of Arati Paul for change of Attorney was allowed.
On the same day, by a separate order, he also granted Letters of Administration in the Testamentary Suit.
On 2nd and 3rd January, 1963, there was further hearing in the testamentary suit.
He then proceeded to examine the question whether, there being numberstatutory provisions barring a right of appeal in that case, there was any principle of law which deprived the parties of the right of appeal.
In pursuance of this agreement, Mallick, J. passed an order in Suit No.
366 of 1963, and ordered stay of all proceedings pursuant to the order of Mallick, J. dated 1st April, 1963, till the final disposal of the Rule.
I direct that this matter with the said Matter No.
The Munsif wrote a judgment and decreed the suit in part.
12/1962 and the Partition Suit No.
366/1963 was mentioned before the Chief Justice for being assigned to some other Judge, when a direction was made by the Chief Justice that a letter should be written by the party companycerned to his Secretary.
The first defendant preferred an appeal which was rejected by the first appellate companyrt on the ground that it was incompetent.
Appeal by special leave from the judgment and order dated February 18, 1965 of the Calcutta High Court in Appeal from Original Order No.
228 of 1963, directed issue of a Rule in Matter No.
On 13th May 1963 Arati Paul applied for change of her Attorney in the partition Suit No.
On 16th September, 1963, Appeal No.
While this appeal was still pending in this Court, the Appellate Bench of the High Court, on 28th April, 1964, allowed Appeal No.
366 of 1963.
While the appeal before the District Judge was pending, an application for review of judgment was also presented before the Munsif.
On 17th December, 1962, the Testamentary Suit No.
A decree was also drawn up in the usual companyrse.
On 27th November, 1963, Arati Paul obtained special leave to appeal from this Court against the, refusal of the interim in junction by the interlocutory order dated 16th September, 1963.
a local inspection of the site, whereafter the plaintiff was examined in chief and some documents were filed.
228 of 1963 was entertained against this judgment under the Letters Patent, but an application presented for an interim injunction restraining the Registrar from taking any steps pursuant to the judgment of Mallick, J. dated 1st April, 1963 pending disposal of the appeal was rejected.
Subsequently, on 1st September, 1964, the preliminary decree drawn up on the basis of the order of Mallick, J. dated 1st April, 1963 in Partition Suit No.
Suit as well as the partition Suit being Suit No.
According to him, a preliminary decree, in a suit for partition can only be passed by a Court and number by an arbitrator when giving an award in the dispute referred to him.
1045 of 1957 and all the disputes involved in these two matter be settled and referred to the sole arbitration of the Honble Mr. Justice P. C. Mallick and the parties agreed to abide by any decision that will be given and numberevidence need be taken except or to what his Lordship might desire and the evidence need number be recorded in any formal manner.
C. Chagla, D. N. Mukherjee and P. K. Sen, for the appellant.
One of the defendants preferred an appeal from the judgment to the Privy Council and a preliminary objection was taken to the companypetency of the appeal.
Sen, S. C. Mazumdar, G. S. Chatterjee for Sukumar Bose, for respondents Nos.
366 of 1963, having been remanded by the Appellate Bench, appeared for final hearing before Sinha, J., on 15th July, 1964, but it was directed to go out of the list as an objection was taken on behalf of Kanai and Balai to the matter being taken up by him on the ground that he was a member of the Appellate Bench which had directed issue of the Rule in that Matter.
Being a mere award of an arbitrator, it companyld number be treated as a judgment in the suit, number companyld a decree be drawn up on its basis.
He numbered the fact that, in that case, there was numberexpress agreement number to appeal but the companytroversy turned on the question whether, by their companyduct, the parties should be deemed to have given up their right of appeal and whether the waiver of the right of appeal should be implied from the terms of the agreement between the parties.
226 of 1964 challenging the order dated 26th August, 1964 passed by Mallick, J. dismissing Matter No.
On 26th August, 1964 Mallick, J. passed an order discharging the Rule in Matter No.
226 of the Constitution on 26th August, 1964.
On 21st September 1964, Arati Paul filed Appeal No.
1045/1957 as a judgment.
On behalf of the respondents, other than the Registrar of the High Court on the Original Side, Mr. Goswami has argued that, even though under the agreement dated 4th January 1963, Mallick, J. was requested to act extra cursum curiae and the suit was left to his arbitration, he, in fact, when passing the order dated 1st April, 1963, acted as a Court and passed a preliminary decree.
Reference may also be made to a decision of the Privy Coun cil in Pisani v. Attorney General of Gibraltar 2 .
Arati Paul then applied for a certificate under Art.
366/63 in the matter of Arati Paul vs. Registrar, O.S., appears to be intimately companynected with the application that is number pending before me.
On 13th January, 1958, Pramila Sundari died, and, companysequently on 12th December, 1959, an order was made in Suit No, 1045 of 1957 transposing Arati Paul as the plaintiff.
On 27th July, 1964, the Notice of Motion taken out by Kanai and Balai for revocation of Letters of Administration was partly heard by Mallick, J. who recorded the following minutes Part Heard.
On 10th June, 1964, two of the parties Kana and Balai took out a numberice of motion for revocation of Letters of Administration which had been granted to Arati Paul by the order of Mallick, J. dated 1st April, 1963 in the Testamentary Suit.
When the case came up in revision before the Bombay High Court, the learned Judge of that Court referred to the quotations from Halsburys Laws of England and Russell on Arbitration which we have numbericed earlier, and expressed his opinion that he did number think that those observations necessarily meant that the Judge ceased to be a Judge and became a pure arbitrator in the sense that he companyld refer the dispute to himself and also remit the award to himself.
Let this matter along with the matters appear day after tomorrow when I shall give directions.
60/11 and 60/12 in Gouri Beria Lane was executed by Pramila Sundari in favour of her three sons Balai, Kanai and Gour.
It appears that, simultaneously with these proceedings, an application for taking proceedings for Contempt of Court were also pending before him in this companynection.
12 of 1962.
This petition under Art.
On 18th March, 1952, there was an I agreement for partition between Pramila Sundari and her three sons Balai, Kanai and Gour, by which the joint estate left by Shrish Chandra Paul was partitioned into four lots and a small portion of the property was left joint.
226 of the Constitution praying for issue of a writ in the nature of mandamus directing the Registrar of the High Court on the Original Side to forthwith recall, cancel and withdraw the filing of the said pretended Award that is how the order of Mallick, J. was described in this petition dated 1st April, 1963 as a judgment in the said Suit No.
Thereafter, the Judge inspected the premises and ultimately, on a further agreement by both parties that the matters in dispute should be decided by the Judge as an arbitrator, he gave his decision.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
On 5th April, 1963, Arati Paul filed an objection to the recording of this order as a judgment.
The Munsif gave his decision partly in favour of the plaintiff and partly against him.
745 of 1966.
On 26th August, 1957, Pramila Sundari executed a will bequeathing her entire estate absolutely to Arati Paul and Gour in equal shares.
They further agreed to accept the decision of the Munsif.
On 17th May, 1963, the order of Mallick, J. dated 1st April 1963 was filed on the record of Suit No.
I.L.R. 58 Mad.
N. Goswari and S. N. Mukherjee, for respondents Nos.
366 of 1963.
The order dismissing that appeal was set aside and the case was remanded for a decision of the appeal on merits.
1045 of 1957 against Balai, Kanai and Gour for a declaration that the deed of gift and the agreement of partition were void and inoperative, and for a fresh declaration of the shares of the parties and partition of the joint properties.
Hearing in Matter No.
1045/ 1957.
In the year 1945, Netai died leaving his mother Pramila Sundari as his sole heiress.
On 4th May, 1963, drafts of decrees drawn up in terms of that order were issued.
The facts leading up to this litigation are that one Shrish Chandra Paul died in the year 1930, leaving behind his widow Pramila Sundar his daughter Arati, and 4 sons Balai, Kanai, Netai and Gour.
Since the appeal in this Court had become infructuous, it was number prosecuted and was dismissed for number prosecution on 29th April, 1964.
The prayer in the writ petition Matter No.
366/1963 was companycluded on 12th August, 1964, and then an, order was made that this Matter as well as the proceedings relating to Notice of Motion for revocation of the Letters of Administration and the application for taking proceedings for companytempt should appear in the list for judgment one after the other.
The order of the trial Judge dismissing the application and making numberorder as to companyts was upheld on the view that the trial Judge had number lost his capacity as a Judge and had number become a pure arbitrator governed by the Arbitration Act and, therefore, the provisions of that Act would number apply to him, so that the order passed by the trial Judge was companyrect.
226 of 1964.
On 13th June 1957, Pramila Sundari instituted Suit No.
Failing to get any response, Arati Paul, on 4th September, 1963, presented a petition under Art.
Interim Order to companytinue except that Arati Paul will companylect rent.
When this numbere was recorded, all the parties to the two proceedings were represented through their companynsel.
Thereafter, on 20th August, 1963, Arati Paul presented a Letter of Demand to the Registrar of the Original Side of the High Court to recall, cancel and withdraw the filing of the order of Mallick, J. dated 1st April, 1963 from the record of the suit and to take it off the file of that suit.
On 27th September 1946, a deed of gift in respect of two premises Nos.
On 3rd February, 1960, Arati Paul applied in the Calcutta High Court for grant of Letters of Administration, with a companyy of the will of Pramila Sundari annexed.
366 be placed before the Honble C.J. for proper determination.
1 and 2.
226 of the Constitution was numbered as Matter No.
The Judgment of the Court was delivered by Bhargava, J. This appeal, by special leave, is directed against a judgment of the Appellate Bench of the High Court of Calcutta dated 18th February, 1965, dismissing an appeal against an order of a single Judge by which he dismissed a petition under Art.
Matter No.
Thereafter, the parties requested the Court to give a decision on the evidence already on the record and intimated that they proposed to adduce numberfurther evidence.
3 and 4.
In this suit, Arati was also impleaded as a defendant.
an award and therefore number open to appeal.
It that case, the Crown claimed certain lands as escheated for want of heirs of the deceased owner.
There was an appeal to the A.I.R. 1945 Bom.
Both the advocates agreed to the learned Judge hearing the facts from them and after inspection of the premises by the Court to submit to his decision as suggested.
On further appeal, the High Court of Madras held that, although the proceeding was number extra cursum curiae, the right of appeal was nevertheless barred by reason of the special agreement.
366 of 1963 and was summarily rejected by Banerjee, J. on 5th September, 1963.
In K. P. Dalal v. R. S. Jamadar 1 , in an application registered as a suit for ejectment from a premises, the Judge trying the suit, at the first hearing of the suit, after pleadings of parties had been put in, enuired of the advocates of the parties as to whether they wanted a formal trial or whether they were prepared to leave the matter to him to be summarily decided as an arbitrator after hearing the respective advocates and inspecting the premises.
The plaintiff appealed to the Subordinate Judge who dismissed the appeal, holding it to be barred by reason of the joint statement given by the parties before the Munsif.
1045/1957.
In this petition, apart from the Registrar of the High Court on the Original Side, Balai, Kanai and Gour were also impleaded as opposite parties.
Consequently, the decision of the trial Court companyld number be treated as the award of an arbitrator and the decree that followed, companyld number be held to be a decree on.
