RAMJI LAL Vs. RAM SANEHI LAL PANDEY

JUDGEMENT

(1.) THIS is a second appeal arising out of a suit wherein the plaintiff claimed a money decree against the defendant on the ground that the former had lent certain amount to the latter. To be specific, the plaintiff claimed a decree for Rs. 5478 with pendente lite and future interest as costs. The defendant contested the suit and denied the factum of loan or that anything was due from him to the plaintiff. The plaintiff gave a list of witnesses whom he proposed to examine at the trial and one such proposed witness was Pt. Satya Narain Misra. The plaintiff examined himself and thereafter a joint application (paper No. 33C) was moved on behalf of both the parties praying that Pt. Satya Narain Misra be appointed as a referee under S. 20 of the Evidence Act. Both the parties jointly stated in the said application that whatever would be stated by the said sole referee, either in person before the court or by a statement in writing to be submitted by him to the court, would be treated as sole evidence of both the parties and both the parties would be bound by the same. It was further stated that neither of the two parties would tender any other evidence in the suit. Lastly, it was stated in the application that the said referee would be entitled to examine the papers on record or to make such other enquiries as he liked to make before making his statement in the court. The statement of the referee would be read in accordance with S. 20 of the Evidence Act. Pt. Satya Narain Misra, the alleged referee, did not personally appear before the court but sent his statement in writing which is paper No. 33B on the record of the trial court. It was stated by him that he sent for the plaintiff and the defendant, heard them, examined the papers in their presence, entertained the evidence which the parties desired to lead and after taking into consideration the entirety of the aforesaid matter, he reached a conclusion that a sum of Rs. 4100 was payable and should be paid by the defendant to the plaintiff. He further stated that on the said sum of Rs. 4100, the plaintiff was also entitled to his proportionate costs. THIS statement was filed on 9th May, 1956, and on the same date the court pronounced its judgment on the basis of the said statement. The relevant order-sheet of the court is worth re-production. " 9-5-56. 39B Referee' s statement. Admit, on file, Sd/- Moti Babu 9-5-56. Neither party has to raise any objection. Order The suit is decreed for a sum of Rupees 4100 with proportionate costs. As to the rest the suit is dismissed with costs on parties. Sd/- Moti Babu 9-5-56.

(2.) IT seems that on 21st May, 1956 an application was moved which is paper No. 62C. By this application the defendant prayed that the decree of the court based on the judgment dated 9th May, 1956 be not signed. IT was contended that the referee was in fact and in law an Arbitrator and his statement amounted to an award. The defendant was entitled to file objection to the award within 30 days of the service of the notice of the filing of the award under Art. 158 of the old Limitation Act. As the defendant was not allowed to file his objections, it was prayed that he should be given an opportunity to file objections to the said award. The said application dated 21st May, 1956 was rejected on the same date. Against the judgment of the trial court dated 9th May, 1956, an appeal was filed in the lower appellate court but the same was dismissed and the trial court' s judgment and decree were confirmed. Thereafter the defendant filed the instant second appeal.

(3.) LEARNED counsel for the appellant has placed reliance on the following authorities in support of his contention. (1) Chhabba Lal v. Kallu Lal (AIR 1946 PC 72); (2) Sadhu Ram v. Ude Ram (AIR 1967 Punj 179); (3) Shambhunath Goenka v. Madan Mohan Ghuwalewala (AIR 1977 NOC 241) (Delhi); (4) Mt. Akbari Begam v. Rehmat Hussain (AIR 1933 All 861) (SB).