1922.

SCHNEIDER
J.

Singho Appu v. Hendrick Арри

with the plaintiff's use of the cart way on the land owned by the plaintiff and the defendants in common. It seems to me that the plaintiff has misconceived his action, and that the issues tried did not cover the actual facts of the case. It seems to me an elementary principle that the part-owner of a land is entitled to use it for taking carts to his house which is on the land, provided, by doing so, he does not interfere with the enjoyment of the land by his co-owners. There is nothing in this case as disclosed by the evidence to show that the use of this cart way on the common land by the plaintiff causes injury or damage to the defendants, or that the plaintiff has put the land to use to which he, as an owner, is not entitled to put it to. There is evidence that the plaintiff has a dwelling house on the land. He is entitled to a right of way to the house by foot, as well as by vehicles, provided such use does not interfere with the legitimate enjoyment of the land by the other co-owners. There is evidence that the defendants have a dwelling house on the common land, and that they, in fact, use a part of this cart way in order to reach their house. It seems to me, therefore, upon the facts, that the plaintiff was putting the land to a legitimate use in taking carts across it to his house. In my opinion the defendants were not justified in obstructing the plaintiff's use of this cart way. I would, therefore, direct that the defendants be ordered to remove the obstruction complained of, and that they be restrained from obstructing the plaintiff from the use of the said cart way, unless and until by a properly constituted action they establish that the use of such a cart way by the plaintiff is inconsistent with their rights as co-owners. The plaintiff will have the costs of the action and of this appeal. I make no order as to the claim for damages.

1922.

Appeal allowed.

Present: Ennis and Schneider JJ.

ROBERT v. SILVA et al.

75-D. C. Galle, 18,949.

Mortgage bond—Usufructuary mortgage as to part of the amount lent-
Agreement to pay interest for the balance-No interest paid—
Prescription.

Defendant granted a mortgage bond to the plaintiff for Rs. 400; for the purpose of interest the mortgage was made a usufructuary one in respect of Rs. 300, and for the remaining Rs. 100 there was a promise to pay interest at 15 per cent. No interest was paid. Held, that as the bond was one and indivisible, prescription did not run as to the Rs. 100 as long as plaintiff had possession.

THE

HE plaintiff-respondent sued the first defendant, appellant, upon a mortgage bond for Rs. 400, by which it was agreed

that second defendant should possess the mortgaged property in lieu of interest on Rs. 300 out of the principal amount, and pay the balance principal of Rs. 100 with interest at 15 per cent. per

annum.

The first defendant, appellant, pleaded by his answer that no demand was made before action. He paid into Court Rs. 300, and pleaded that the claim to balance principal of Rs. 100 and interest was prescribed by lapse of time. The second defendant has filed no answer. The District Judge (T. B. Russell, Esq.) held that the claim was not prescribed.

J. S. Jayawardene, for first defendant, appellant.

Soertsz, for plaintiff, respondent.

September 11, 1922. ENNIS J.

This was an action over the principal and interest on a mortgage bond. The plaintiff claimed a principal sum of Rs. 400 on the bond, and the sum of Rs. 100 as interest. It appears that the bond is to secure the payment of a sum of Rs. 400, and a certain land was mortgaged as security for this sum. For the purpose of interest the mortgage was made a usufructuary one in respect of Rs. 300 out of the Rs. 400, and for the remaining Rs. 100 there was a promise to pay interest at 15 per cent. The only issue in the case was whether the plaintiff's claim was prescribed as to the interest and the Rs. 100 upon which interest had to be paid in cash. The learned Judge held that the bond was one and indivisible, and that, therefore, prescription did not run. I am in accord with that

contention.

On appeal it was argued that inasmuch as the plaintiff in his plaint had set out his claim for interest at Rs. 100, the plaintiff had thereby acknowledged that the Rs. 100 was a separate and divided matter from the Rs. 300. I do not think this point can be urged against the plaintiff, as it was open to him to correct the mistake at any time, and the plaintiff might have claimed interest within the limits of the bond amount, viz., Rs. 400. The possession in lieu of interest year by year amounted to a payment of interest on some portion of the Rs. 400 every year, and therefore the last payment of interest was at the date of action.

I see no reason to interfere with the finding of the learned Judge, and dismiss the appeal, with costs.

SCHNEIDER J.—I agree.

1922.

Robert v.

Silva

Appeal dismissed.

1922.

Present: Schneider J.

FARQUHARSON v. PITCHEY.

242-P. C. Colombo, 21,718.

Leave to appeal on facts-When to be granted by Magistrate.

A Magistrate is not to grant leave to appeal on facts where no appeal lies on facts, unless he has some doubt.

Amarasekere, for appellant.

May 31, 1922. SCHNEIDER J.—

It is made a matter of complaint on this appeal that the accused had not been given an opportunity of calling witnesses to prove his defence, that he had been taken into custody by the police about 8 A.M. and tried by 11 A.M., so that he had no opportunity of engaging the services of a lawyer. There is a record by the Magistrate that the accused, after he had given evidence, said that the tindal would give evidence on his behalf. I think, the accused having been undefended, it was the duty of the Court to have expressly questioned him as to the fact whether he was prepared to go to trial, and whether he desired to call any evidence for the defence. The record does not show that the Magistrate had not given the accused an opportunity of calling witnesses. Taking the allegations made in the petition of appeal, and the fact that the accused was put on his trial very shortly after he had been taken into custody by the police, I would set aside the conviction pro formâ, and remit the record, in order that the accused may call any evidence he desires to call to prove his defence.

I wish to add one word of comment upon the proceedings in this case. The accused having been sentenced to undergo imprisonment for one month had no right of appeal, except upon a matter of law or with the leave of the Magistrate. There is no matter of law which seems to arise upon these proceedings, but the appeal was taken with the leave of the Magistrate. Now there is nothing on the record to show why the Magistrate granted this leave. It is not a mere matter of routine the granting of leave, but there must be some reason moving the Magistrate in granting it. His own judgment contains no indication whatever of any doubt in his mind as to the facts which he considered had been proved. If he had no such doubt, then I fail to see what reason it was that induced him to grant leave to appeal. I make these remarks because it seems to me that Magistrates in granting leave to appeal should proceed upon some principle.

Sent back.

Arbitrator's fee-District Judge fixing the amount of the fee and directing each party to pay an equal share after decree-Jurisdiction.

After decree was entered in terms of an award, the arbitrator asked for his fee, and the District Judge fixed the amount of the fee, and directed that it should be paid by both parties in equal shares.

Held, that the Court had jurisdiction even after decree to fix the amount and make the order it made.

THE facts appear from the judgment.

Hayley, for defendants, appellants.

Canakeratne, for arbitrator, appellants.
J. Joseph, for plaintiff, respondent.

October 5, 1922. DE SAMPAYO J.

This is an appeal by the defendants from an order allowing certain amounts to the arbitrator as costs of the arbitration. It appears that the matter in dispute was referred to arbitration, and in the reference the arbitrator was given power to award costs of the proceedings as well as costs of the arbitration, but in making the award the arbitrator did not include any provision as to the costs. Subsequently the plaintiff, who was the successful party, moved that the Court should make an order allowing him the costs of the proceedings and of the arbitration. This motion would appear to have been made after the decree had been entered in terms of the award, and the District Judge refused the motion on the ground that he could not alter the decree when he had once entered it. There was an appeal to this Court by the defendants from the main order, and at the same time the plaintiff gave cross notice objecting to the refusal of his application for costs. This Court dismissed both the appeal and the cross notice. In this state of matters the arbitrator himself submitted to Court a bill and desired the Court to tax the bill, and, as it were, to allow him a reasonable amount for costs of the arbitration. The District Judge considered this matter, and fixed the amount due to the arbitrator at Rs. 249.30, and at the same time directed that this amount should be paid to the arbitrator by the parties in equal shares. The defendant has 18-23/455

6-XXIV.

1922.

1922.

DE SAMPAYO

J.

appealed again from this order. The first ground of appeal is that there is no authority for the Court to tax the bill of an arbitrator. There is undoubtedly no special provision with regard to it, but in substance the arbitrator's application amounted to asking the Court Fernando v. Sabaratnam to fix a reasonable amount due to him. I think the form of the application need not prevent the Court from making the order for the artibrator's costs. In the next place, it is urged that this is too late, as the Court had already refused to make an order, and this Court had dismissed an appeal from that refusal, but it must be remembered that the previous order was made on an application by the plaintiff, who applied that costs be allowed to him of the arbitration, and that the amount be embodied in the decree. I do not think the previous order, either of the District Court or of this Court, prevents the arbitrator from making the present application. As regards the jurisdiction of the Court to award the costs of an arbitrator, I think there is sufficient provision made in that respect by section 211 of the Civil Procedure Code. That no doubt has no special reference to arbitrator's costs, but it would seem from a work on Practice in India under a section of the India Code, corresponding with the above section of our Code, orders are made for arbitrator's fees, but, apart from that provision, I think section 689 of the Civil Procedure Code is specially applicable to a matter of this sort. That occurs in a chapter with reference to arbitration, and in dealing with the applications to set aside or correct an award, this section provides that a Court may also make such orders as it thinks fit respecting the costs of arbitration if any question arises respecting such costs, and the award contains no sufficient provision concerning them. That section appears to me exactly to fit the circumstances of this case. Mr. Hayley, for the defendant, finally says that he really would have had no objection to the Court fixing the amount by taxing the bill, but he does object to the Court ordering the defendant to pay half the amount. I do not see that the Court's power to apportion costs or to make a special order as to who shall pay the costs is restricted by section 689. Moreover, it would seem, when the original order referring matters to arbitration was made, it was specially directed that the costs of the arbitration should be paid by both parties in equal shares. I think the present order is merely carrying out the purpose of the original order, which was acquiesced in and acted upon by both parties.

I think the appeal should be dismissed, with costs.

PORTER J.-I concur, and for the same reasons.

Appeal dismissed.