The main legal point established in the judgment is that the right of appeal can be waived by a special agreement made by the parties, even if the proceeding is not extra cursum curiae.

Venkatasubba Rao, J.

1. This appeal raises an important question and has been fully argued by the counsel on both sides. The facts may be briefly stated. In the suit the plaintiff claimed an easement of necessity in respect of certain lands. At the defendants request, the District Munsif made a local inspection of the site. Then, after the plaintiff was examined-in-chief and some documents were filed, the parties requested the Court to give a decision on the evidence already on the record and intimated that they proposed to adduce no further evidence. A joint statement to that effect was filed and the decision in the case really turns upon the proper construction of that document. To resume the story, the Munsif gave his decision partly in favour of the plaintiff and partly against him. The plaintiff, dissatisfied with that judgment, appealed to the Subordinate Judge. He held that by reason of the joint statement to which I have referred, the plaintiff was debarred from filing the appeal. The plaintiff, whose appeal has thus been dismissed, questions the correctness of that view.

2. The proper test to apply is, whether the judgment in regard to which the question arises, has been pronounced extra cursum curiae; if so, it is in the nature of an arbiters award and as a general rule at least, no appeal from it will lie. This position is well illustrated by Burgess v. Morton (1896) A.C. 136 . The rules which govern the procedure on the Common Law side of the High Court of Justice do not contemplate or permit the use of a special case, except for the purpose of obtaining the decision of questions of law arising upon facts which are admitted. But what happened there was, that the parties agreed to withdraw the case from trial and to state a special case for the purpose of trying a question of fact. It was held that the proceedings were not in the ordinary course of law but extra cursum curiae and that the decision should therefore be regarded as a consent order, from which no appeal will lie.

3. A mere deviation from the ordinary procedure does not necessarily, however, render a proceeding extra cursum curiae. As observed by the Judicial Committee in Phani v. Attorney-General for Gibraltar (1874) L.R. 5 P.C. 516:

Departures from ordinary practice by consent are of every day occurrence; but unless there is an attempt to give the Court a jurisdiction which it does not possess, or something occurs which is such a violent strain upon its procedure that it puts it entirely out of its course, such departures have never been held to deprive either of the parties of the right of appeal.

4. Of the Indian cases cited at the Bar, the two most useful are Sankaranarayana v. Ramaswamiah I.L.R. (1922) Mad. 39 : 44 M.L.J. 258 and Ballabh Das v. Sri Kishen (1925) 89 I.C. 586 (All.); the other cases, Chinna Venkatasami Naicken v. Venkatasami Naicken I.L.R. (1919) Mad. 625 : 36 M.L.J. 291, Shahzadi Begam v. Muhammad Ibrahim I.L.R. (1920)All. 266, Sita Ram v. Piari Lal I.L.R. (1925) All. 921 and Sri Sri Sri Ramachandra Deo Garu v. Chaitana Sahu (1920) 39 M.L.J. 68 do not throw much light on the question.

5. The result, however, of the cases, is, that if the proceeding is extra cursum curiae, the decision is in the nature of a consent order and generally the right of appeal is barred. If, on the other hand, it is not extra cursum curiae, unless there is a clear waiver of the right, the right of appeal will not be lost; in that case, the person who contends that no appeal will lie must clearly show that the right lias, either expressly or by necessary implication, been given up. In the present instance, the parties abridged the trial by seeking a decision on incomplete evidence, and this being no more than some deviation from the ordinary procedure, the judgment was not extra cursum curiae. Then the question really is, whether on a true construction of the document, the right of appeal has clearly and unequivocally been waived. With these observations,