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Issues Involved:
1. Maintainability of appeal and cross-objections based on a joint memo. 2. Right to appeal in cases where the court's decision is based on personal inspection and documentary evidence without oral evidence. 3. Legal principles regarding decisions made extra cursus curiae (outside the usual course of law). Issue-wise Detailed Analysis: 1. Maintainability of Appeal and Cross-Objections Based on a Joint Memo: The case involved a Letters Patent Appeal against an order directing the lower appellate court to determine the merits of an appeal and cross-objections. The plaintiffs sought mandatory and permanent injunctions against the defendants for interfering with the flow of rainwater through their fields. The defendants contended that the Highways Department had not provided regular canals, causing water to flow irregularly. The District Munsif framed three issues: entitlement to injunction, non-joinder of parties, and necessity of the 2nd defendant. A joint memo was filed agreeing to abide by the court's decision based on personal inspection and documentary evidence without oral evidence. The District Munsif inspected the locality and ordered the 1st defendant to remove the bund and prevent interference with water flow. The lower appellate court dismissed the appeal and cross-objections, holding that the joint memo constituted a waiver of the right to appeal. This was challenged, leading to the current Letters Patent Appeal. 2. Right to Appeal in Cases Where the Court's Decision is Based on Personal Inspection and Documentary Evidence Without Oral Evidence: The legal question was whether the joint memo, agreeing to abide by the court's decision based on personal inspection and documentary evidence, constituted a waiver of the right to appeal. Previous cases were examined to determine if such an agreement implied a waiver of the right to appeal. In Sayad Zain v. Kalabhai, it was held that a decision based on the judge's personal inspection and documentary evidence was in the nature of an arbitrator's award and not open to appeal. Similarly, in Nidamarthi Mukkanti v. Thammana Ramayya, the court held that the Munsif acted as an arbitrator by consent, and no appeal lay from his decision. However, in Kotamma v. Mangamma, it was held that the right of appeal was not taken away by the terms of a similar memo. The court found that the absence of inspection notes did not affect the legal principle, and directed a remand. 3. Legal Principles Regarding Decisions Made Extra Cursus Curiae: The judgment discussed various cases to determine whether decisions made outside the usual course of law (extra cursus curiae) were appealable. In Pisani v. Attorney General of Gibraltar, it was held that deviations from ordinary practice by consent did not deprive parties of the right to appeal unless the court assumed jurisdiction it did not possess or deviated so much that the appellate court could not properly review the decision. In Burgess v. Morton, the House of Lords held that decisions made extra cursus curiae with the acquiescence of both parties were in the nature of an arbitrator's award and not subject to appeal. The court emphasized that the right to appeal would be lost if the procedure followed was fundamentally different from the usual course, preventing proper appellate review. The judgment concluded that the right to appeal would be lost if there was an express or implied waiver of such right, or if the decision was extra cursus curiae and the procedure followed resulted in inadequate material for appellate review. The correct test was to ascertain whether the original court's procedure was fundamentally different from the usual course, causing the right to appeal to be lost. Conclusion: The High Court held that the right to appeal would be lost where there was an express or implied waiver of such right, or if the decision was extra cursus curiae and the procedure followed by the original court resulted in inadequate material for proper appellate review. The judgment directed the lower appellate court to determine the merits of the appeal and cross-objections, considering the legal principles discussed.
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