HEM LATA Vs. JAMBOO PRASAD

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against an order dated the 25th of April, 1958 passed by the learned civil Judge of Saharanpur. It arises under the following circumstances.

(2.) A suit was instituted by the plaintiff for recovery of her ornaments or in lieu thereof for the recovery of a certain sum of money. The suit was resisted by the defendants and certain preliminary issues were raised. The suit was fixed for the 16th of November, 1957 for the hearing of the preliminary issues relating to the jurisdiction of the court to try the suit and the plea of limitation. On that date, the plaintiff's counsel Sri Hukum Chand Jain as well as the plaintiff's Mukhtar-Khas Sri Tirlok Chand offered to be bound by the statement of Sri Jamboo Prasad defendant No. 1 provided that the statement was made on the special oath of Sri Mahabir Ji Swami. Sri Jamboo Prasad agreed to give his statement on that special oath. The offer was accepted by the counsel of the defendants. The statement of Sri Jamboo Prasad was recorded on that special oath and the suit was dismissed on the 16th November, 1957 on the basis of that statement. Some time later an application purporting to be one under Order 9 Rule 9 of the Code of Civil Procedure and Section 151 of the Code was made by the plaintiff upon the allegation that Sri Tirlok Chand Mukhtar Khas who was the maternal uncle of the plaintiff and in whose favour the Mukhtarnama dated the 19th of September, 1956 was made, was not authorised to get the suit decided on the special oath of the defendant and that Sri Hukum Chand Jain Advocate who was engaged by Tirlok Chand on behalf of the plaintiff did not derive any authority which was in excess of the authority given to Sri Tirlok Chand under the Mukhtarnama Khas. The plaintiff therefore desired that the decree dated the 16th of November, 1957 should be set aside and the case should be reheard. The application was opposed by the defendants on the ground that the suit having been determined on merits no application under Order 9 Rule 9 of the Code or under Section 151 lay. The court below accepted the contention of the defendants and upon the examination of the terms of the Mukhtarnama Khas dated the 19th of September, 1955 held that the Mukhtar Khas had the power to summon a witness as referee and to have the case decided upon the statement of that referee upon special oath. Upon that view of the matter the application for restoration was dismissed. It is against that order that the present appeal has been preferred.

(3.) WE have reproduced the terms of the mukhtarnama Khas in extenso in order to bear out our view that the terms were wide enough to entitle the mukhtar Khas to have the matter determined upon the statement of a referee upon special oath.