KHOBHARI SAH Vs. JHAMAN SAH

JUDGEMENT

(1.) In the suit out of which this Rule arises, the plaintiff s case was that he gave the defendant a certain amount of metal with which to prepare ornaments. He sued for the recovery of the metal, damages and the money advanced. When the case was heard, a petition was put in by both parties which runs as follows: "It has been settled between the parties that this matter be enquired into by some Pleader who may be sent to the defendants house, the boundaries of which are given below, so that he may see whether the defendants do the work of casting and whether bellows or signs of furnace or bellows are found in the said house. In case the aforesaid things or their signs are found to exist, a decree shall be given in favour of the plaintiffs, and in case of the said things being found not to exist, the suit shall be dismissed. The parties shall have no objection. For this reason we are sending Babu Jagat Prosanno Pleader."

(2.) For this reason, Babu Jagat Prosanno Mookerjee, Pleader, went to the house and found that the things did exist. But the learned Subordinate Judge did not decide the case in accordance with the agreement, on the ground apparently that the defendant retracted his consent, and proceeded to dispose of the suit on the merits.

(3.) The plaintiff has obtained this Rule on the opposite party to show cause why this order should not be set aside on the ground, firstly, that the Court below ought to have held that the petition of the 7th September 1914 was an adjustment of the suit and, secondly, that the Court below was in error in allowing the defendant to withdraw from the agreement.