( 481 )
Present: Akbar J.
PUNCHI BANDA v. NOORDEEN.
300—C. R. Kandy, 4,911.
Appeal—Agreement to abide by decision of Judge—Arbitration.
Where the parties to an action in the Court of Requests agreedto abide by the decision of the Commissioner after an inspectionof the premises in dispute.
Held, that no appeal lay from the decision of the Commissioner.
PPEAL from a judgment of the Commissioner of Requests,Kandy.
E. Navaratnam, for defendant, appellant.
H. E. Garvin (with Abeywardene), for plaintiff, respondent.
February 25, 1929. Akbar J.—
The appeal is on a simple point of law. On the date of the trialthe defendant was put into the witness box by the Commissioner andexamined by him for the purpose of getting certain admissions inorder to enable him to frame issues. After his examination, owingto certain answers given by him, the plaintiff challenged the defend-ant to agree to an arbitration by the Commissioner. The recordreads as follows—“ At this stage plaintiff states that if on aninspection by Court, there are any traces of a boutique on one sideof Galboda Hena he is willing to have his case dismissed. Thechallenge is put to the defendant, against whom judgment will beentered if there are no traces of a boutique. He is agreeable.I reserve the right in the event of what I consider uncertainty to letthe case go to trial again. Inspection on June 9, 7.30 a.m. ” Inaccordance with this agreement, the Judge inspected the premisesin the presence of the plaintiff and the. defendant, and being satisfiedthat there was no trace of the old boutique as contended by thedefendant, he gave judgment for the plaintiff as prayed for, withcosts but no damages, but he reserved the right to the defendantto sue for a declaration of title.
On the authority of the case reported in 1 Browne's Reports,page 120, the Commissioner here was appointed arbitrator byconsent of both parties and therefore, there is no appeal from hisjudgment.
Mr. Navaratnam, for the appellant, argued, on the strength of acase reported in 25 Neiu Law Reports, page 257, that the Com-missioner could not be regarded as an arbitrator, but the facts of16—xxx.
30J. M. A 9487 (1 /46)
( 482 )
. Akbab J,
that case are different from those here. In that case issues wereframed, documents were put in by agreement, Counsel addressed'the Court, and the surveyor was called to identify certain lots, andthen the Commissioner gave his judgment. The facts of this caseare totally different. No issues were framed, and the plaintiff and'the defendant agreed to abide by the decision of the Commissioner,■after inspection of the site, on certain lines agreed to by them.
Iitherefore dismiss the appeal with costs.
PUNCHI BANDA v. NOORDEEN