RADHA KISSEN KHETRY Vs. LUKHMI CHAND JHAWAR

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for declaration that a contract for sale of piece goods, alleged to have been made between him and the defendants on the 2nd August 1918, was invalid, and that an award made by the arbitration tribunal of the Bengal Chamber of Commerce in their favour on the 5th June 1919 for damages for breach of the said contract was equally void and inoperative. The plaintiff also prayed for a perpetual injunction to restrain the defendants from enforcing the award. The suit was instituted on the 16th June 1919. On the 20th June, the plaintiff applied for an interlocutory injunction during the pendency of the suit and an ad interim injunction during the pendency of the Rule on the application. A Rule was issued and an ad interim injunction was granted on terms as to security. The Rule for interlocutory injunction was heard on the 25th July 1919. Mr. Justice Rankin, as appears from his judgment, declined to entertain the hearing of the motion except on the basis that it be treated both as the trial of the action and as a petition under the Indian Arbitration Act. " He further thought that Counsel on both fides consented to this, and thereafter heard the matter on the affidavits, as he saw no reason to exercise the power of taking oral evidence. On the 19th August, judgment which had been reserved was delivered, whereby the motion and the action were dismissed with costs. The plaintiff has now appealed against this judgment. We have not been invited to consider the propriety of the order in so far as it dismissed the application for interlocutory injunction during the pendency of the suit. The plaintiff has, it was stated, brought into Court the money due on the award and no longer desired an ad interim order. The substantial question argued in the appeal is, whether the suit has been properly tried without oral evidence, as if the plaint were a petition under the Indian Arbitration Act.

(2.) We have at the outset to consider whether the procedure adopted in the Court below was followed with the consent of Counsel on both sides, for, as Lord Hardwicke held in Bradish v. Gee (1754) 1 Keny, 73 at p. 76 : Ambl. 229 : 96 E.R. 920, it is well settled that a judgment obtained by consent of Counsel acting in Court, in a matter within their authority, cannot form the subject of an appeal. To determine this question, we shall refer to the Minute Book where we find the following entry: Mr. James, for the Defendant. Mr. A.K. Ghose, for the Plaintiff appears with Mr. Chukerbutty. Mr. James--I consent that this motion should be treated as petition under the Arbitration Act. Mr. Ghose--I have no objection, but to prove fraud Your Lordship will have to hear oral evidence. Mr. James--Let Mr. Chukerbutty open the motion. Mr. Chukerbutty opens. Mr. James reads his affidavits. Mr. Chukerbutty replies. Midday Adjournment Mr. Chukerbutty addresses the Court and refers to cases Sardarmull Jessraj v. Agarchand Mahata & Co 52 Ind Cas. 588 : 28 C.W.N. 811, Gajanand v. Shaik Taleb Jalaluddin 46 Ind. Cas. 178 : 22 C.W.N. 536, Hurdwary Mull v. Ahmed Musaji 1 Ind. Cas. 371 : l3 C.W.N. 63. Mr. James addresses the Court on the Rules of Bengal Chambar of Commerce. The Court--I reserve judgment.

(3.) The only matter for consideration before the Court on the 25th July 1919 was, as already stated, the application by the plaintiff for an interlocutory injunction. Mr. Landlord James, who appeared on behalf of the defendants, gave his consent that the motion should be treated as petition under the Arbitration Act. Mr. Ghose, who appeared for the plaintiff, did not give his unqualified consent, for while he stated that he had no objection, he expressly added that to prove fraud the Court would have to hear oral evidence. The case was then opened, the affidavits were read and reference was made to the decisions in Hurdwary Null v. Ahmed Musaji 1 Ind. Cas. 371 : l3 C.W.N. 63, Gajanand v. Shaik Taleb Jalaluddin 46 Ind. Cas. 178 : 22 C.W.N. 536 and Sardarmull Jessraj v. Agarchand Mahata & Co. 52 Ind Cas. 588 : 28 C.W.N. 811. After the addresses of the Counsel, judgment was reserved. Judgment was delivered, twenty-five days later, on the 19th August. The entries in the Minute Book do not support the statement in the judgment that Counsel on both sides had Consented that the hearing of the motion should be treated both as the trial of the action and as a petition under the Indian Arbitration Act. We cannot, in these circumstances, hold that the procedure followed was adopted by consent of Counsel on both sides.