HABIB ALI Vs. ABDUL RASHID AND ANOTHER

JUDGEMENT

(1.) THIS petition of revision is directed against the judgment and decree of the Court of Small Causes, Karimganj dated 31 -5 -51 by which plaintiff's claim for a sum of Rs. 125 was decreed against all the three defendants in the case.

(2.) PLAINTIFF 's case was that he and defendant 3 deposited each a sum of Rs. 100 with defendant 2. The occasion for this deposit arose from an agreement between him and defendant 3 by which they appointed defendant 1 as their arbitrator for deciding come land dispute. According to the agreement of reference the award was to be given within a month and defendant 3 had to produce Mt. Kutina Bibi for her deposition before the arbitrator. In default plaintiff was to get the disputed land. Defendant 3 did not perform his part of the agreement to enable arbitrator to decide the dispute. He did not bring Kutina Bibi with the result that plaintiff became entitled to the land. He then served a notice on defendant 1 on 3 -8 -1950 to return the 'salisnamah' and to order defendant 2 to refund Rs. 100 deposited with him. The request was not complied with. Plaintiff therefore claimed Rs. 100 deposited by him as also a sum of Rs. 25 by way of compensation. A decree for the amount claimed was passed against all the defendants. The defence set up by defendants 1 and 3 was that Kutina Bibi was brought within time and the award was given according to the terms of the agreement of reference after notice to the parties. But before the award which had been made on stamp paper could be delivered to the parties, it was stolen. It was further pleaded that plaintiff could get no relief without first getting the award set aside. The award it was alleged, was in favour of defendant 3. Defendant 2 denied the allegation in the plaint and averred that he had paid Rs. 45 to defendant 3 on 7 -8 -50 against a receipt from him for expenditure which was to be incurred in bringing Mt. Kutina Bibi. He expressed his willingness to pay the balance of the amount left with him.

(3.) DEFENDANTS 1 and 2 have not challenged the correctness of the decree. Defendant 3 alone has assailed it. On his behalf it has been contended that the suit could not have been taken cognizance of by the Court of Small Causes as it was excepted from the cognizance of the Court of Small Causes by virtue of Art - 24 of the Second Schedule to Provincial Small Cause Courts Act. Article 24 applies to a suit to contest an award. This obviously is not such a suit and Mr. Haque the Learned Counsel for petitioner has not been able to show that this article can possibly apply. The suit therefore cannot be regarded as one which the Court of Small Causes could not try. His second contention was that the decree was based on some inadmissible evidence. He has not been able to show any piece of evidence relied on by the Court in arriving at the finding against the defendant which may be inadmissible. There is however one point which requires consideration in this case. Plaintiff's case was that the money was deposited with the defendant 2 and he has become entitled to its refund as there has been no arbitration at all according to the agreement of reference. On that basis he could not ask for a decree against defendant 3. The finding is entirely in his favour. The defence plea that a part of the money was spent for bringing Mt. Kutina has been negatived. The amount deposited according to the finding remained with defendant 2. Defendant 3 according to the case set up by the plaintiff and also according to the finding arrived at by the Court below could not be said to have incurred any responsibility for refund of the deposit made with the defendant 2. The learned Judge of the Court of Small Causes has observed that the defendants were colluding. Assuming that there was collusion, the liability for refund would still rest with defendant 2 for it is merely a claim for refund of deposit made. In these circumstances no decree should have been passed against defendant 3. The Learned Counsel for plaintiff respondent has no answer to this argument.