PARBHU RAM ALIAS PHUL SINGH Vs. MOLU RAM

JUDGEMENT

(1.) This is plaintiff's second appeal whose suit for the grant of the mandatory injunction was decreed by the trial Court, but the said decree was set aside in appeal and the case was remanded to the trial court for fresh decision on merits.

(2.) The appellant filed the suit for the grant of the mandatory injunction directing the defendants to remove the obstruction in the free flow of salvage and rain water of his house. During the pendency of the suit, on June 4, 1983, the parties and their counsel made the statement that Shri I.S. Bhatia, Advocate, Jagadhari, be appointed as a referee in the case. He was so appointed by the trial Court with the direction that he shall visit the spot and shall provide the proper way for the discharge of water from the house of the plaintiff. He was directed to submit his report on or before July 18, 1983. However, the report was not submitted by then and the case was adjourned to July 23, 1983, for awaiting the said report. On that day, an application was filed by the defendants to the effect that they did not want to get the matter decided through the said referee as it had transpired then that the plaintiff was the real uncle of the referee. Reply to the said application was filed on July 26, 1983, wherein it was submitted that the apprehension of the defendants was unfounded and that it was very well known to them even at the time when the statement was made on June 4, 1983, for his appointment as a referee. Ultimately, the trial Court dismissed the said application. The referee filed his report on September 16, 1983. Objection to the said report were filed on behalf of the defendants. Consequently, the issue was framed as to whether the report of the referee was liable to be set aside. The trial Court came to the conclusion that the decision given by the referee was binding upon the parties. Consequently, the award given by the referee was made the rule of the Court vide order dated July 19, 1984. Dissatisfied with the same, the defendants filed appeal. The learned Additional District Judge relying upon the judgment of this court in Gian Chand Sharma v. Bansl Lal, 1961 AIR(P&H) 31wherein it was held that a party making an offer for the appointment of a referee can resile from the same before the statement is actually made by the referee, allowed the appeal, set aside the decree of the trial Court and remanded the case to it for fresh decision, as noticed in the earlier part of this judgment. Dissatisfied with the same, the appellant has come up in this second appeal to this Court.

(3.) The learned counsel for the appellant contended that the judgment of this Court in Gian Chand Shama's case relied upon by the lower Appellate Court was overruled by the Full Bench of this court in Florabel Skinner v. J.B.K.M. Ram Lila Mandal, Hissar, 1980 AIR(P&H) 284. Thus, argued the learned counsel, the report of the referee was binding upon the parties and the decre of the trial Court could not be set aside on that ground by the lower appellate Court. On the other hand, the learned counsel for the defendants-respondents submitted that in the said Full Bench decision of this Court an exception was recognised to the effect that if, in a given case, sufficient cause is shown to the satisfaction of the Court and the Court is satisfied, it may permit a party to resile from the admission. Thus, according to the learned counsel, the present case fell within the said exception and therefore, the Full Bench judgment of this Court in Florabel Skinner's case , was not applicable to the present case.