SRIMATI GOLNUR BIBI Vs. SHEIKH ABDUS SAMAD

JUDGEMENT

(1.) This appeal has been preferred by a plaintiff from an appellate order of the Subordinate Judge allowing an appeal from a decree based on an arbitration award and remanding the suit to the Court of first instance for trial. The relevant facts are the following:

(2.) The plaintiff had instituted a suit for declaration of title and certain consequential reliefs. The suit was instituted on 10 November 1925. Written statements having been filed on behalf of the defence, a commissioner was appointed in March 1926 to make a local investigation. Opposition was offered to the commissioner by some of the defendants when he was doing his work of measurement. The commissioner having reported the matter to the Court, proceedings were instituted against one of the defendants, that is to say defendant 5, to consider whether he should be proceeded against criminally, but eventually the said proceedings were dismissed. The writ issued to the commissioner was recalled in June 1926, and thereafter another commissioner was appointed. In July 1926 the said commissioner on completing his work submitted a report. On 10 August 1926 a petition was filed in Court on behalf of the plaintiff and defendant 5 asking for a month's time for compromise and the plaintiff filed also another petition asking for summons on a witness. The Court adjourned the suit to the 13 August 1926 for hearing unless there was going to be a compromise in the meantime. On 13 August 1926, on a special petition of the plaintiff, two of her witnesses were examined and certain documents were received in evidence, and the suit was adjourned to 16 August 1926. On the last-mentioned date the plaintiff and some of the adult defendants put in a joint petition-agreeing to refer the dispute to certain arbitrators. On that the Munsif passed the following order: Parties have put in a joint petition referring the ease to arbitration. But defendants 31 and 82 have not joined therein, and the Court guardian for the minor defendants 11, 14 and 15 and (the minor) pro-forma defendants 23 and 24 is not removed. The suit be put up to-morrow for orders.

(3.) By petitions filed on 17 and 19 August 1926 the defects noted in the above order were rectified; that is to say, defendants 31 and 32 joined in the application for reference, and the Court guardian for defendants 11, 14, 15, 23 and 24 being removed, their natural guardians were appointed guardians-ad-litem on their behalf. On 20 August 1926 the natural guardians appointed as guardians-ad-litem as aforesaid put in a petition stating that they had already applied on 16 August 1926 referring the dispute to arbitration for themselves and their wards, and praying that orders might be passed for reference of the dispute to the said arbitrators in accordance with the terms of the said petition. The Munsif thereupon Ordered: Put up to-morrow in presence of the pleaders for the parties for order on the petition for referring the suit to arbitration.