SUNDAR GIR GOSSAIN Vs. JADUNANDAN JHA

JUDGEMENT

(1.) THIS is an application by the second party in a Section 145 proceeding and is directed against an order of the Sub-divisional Officer passed on an award of arbitrators to whom the dispute between the parties was referred by consent of them both t during the pendency of the proceedings. It appears that the award is dated 23 January 1941 and was placed before the Sub-divisional Officer on 4th February 1941. He fixed 19 February, for putting up the award in the presence of parties. On that date the award was put up in presence of both parties neither of whom took any objection to it. Now the award contained besides certain findings of fact a direction or recommendation that on the first party depositing Rs. 200 the second party should give a lease of 10 bighas of land out of the bakasht recorded in Khata No. 123. The Magistrate instead of passing order at once on 19 February, adjourned the matter to 17 March for both parties to execute their part of the work as suggested by the arbitrators. On 25 February 1941, a petition was presented on behalf of the second party objecting to the award praying that it might not be received in evidence and praying that the case might be decided on the merits according to law. The Magistrate however on 17th March, accepted the award and passed orders in accordance with it in so far as it referred to the plots which were the subject-matter of the proceedings. He also said: The first party has deposited in Court a sum of Rs. 200 in favour of party 2 for the latter to execute a permanent tenancy lease of 10 bighas of land out of his bakasht holding recorded in Khata No. 123. The second party will do it in due course.

(2.) THIS last order manifestly is not an order contemplated by Section 145 and the final order of the Magistrate in so far as it goes beyond the scope of the proceeding before him is on the face of it not supportable in law. It has been contended on the authority in Uttam Singh V/s. Jodhan Rai A.I.R. 1924 Pat. 589 that the entire reference to arbitrators was bad and that the award should have been rejected and the proceedings should have been carried on in accordance with law. It is a fact that Section 145 contains no reference to arbitration proceedings; but there is nothing in the section to forbid the parties by mutual consent adopting any procedure on which they may agree for the amicable settlement of their dispute. If the dispute is amicably settled and no likelihood of a breach of the peace remains, the Magistrate can act under Sec. 145(5) cancelling his previous order and staying all further proceedings but if he does not do that the only alternative is to decide the dispute and pass order under Section 145(6). Such an order must be based on evidence and the Magistrate before making it is bound under Section 145(4) to receive all such evidence as may be produced by the parties. I have been referred on behalf of the opposite party to Haldhar Singh V/s. Bulaki Singh A.I.R. 1918 Pat. 383 . Here the award was the only evidence offered and the only evidence that either party desired to offer up to the date of the Magistrate's final order. In that case the Magistrate in accepting the award and acting on it was held to have proceeded in accordance with Section 145(4). He did not receive any evidence other than the award because there was no evidence to receive. If the Magistrate had on 19 February, passed an order either declaring himself satisfied that there was no longer a danger of breach of the peace or treating the award itself as the only evidence tendered and acting on under Section 145(4), then I see no reason why such an order should not have been supported; but as there was, before he came to dispose of the ease, a petition asking that evidence should be received and the dispute determined according to law, it became his duty to receive such evidence as might be produced, under Sub-section (4) unless he decided to drop the proceeding under Sub-section (5). The order cannot, therefore, stand and must be set aside. The Sub-divisional Officer will now dispose of the proceeding in one of the ways contemplated by the section. The rule is made absolute.