MUSAMMAT MASITA BIBI Vs. KHUDA BAKSH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for possession of some land by demolition of certain constructions made by the defendant. The defendant had denied the plaintiff's title and the main issues raised in the case were questions of fact. Both the Courts below have dismissed the plaintiff's claim. So far as the decision on the merits is concerned, it is not challenged in second appeal before me and ground No. 3, taken in respect to the vague decision to which the finding has been arrived at, has not been pressed. The only point that has been strongly contended before me was that, in view of the agreement arrived at between the parties on the 14 of September, 1920, under which they had agreed to abide by the statement of one Muhammad Hadi Hasan, the lower Appellate Court was not justified in going behind that agreement and disposing of the appeal on the merits.

(2.) It appears that, on the 14 of September 1920, when the learned Judge of the Small Cause Court went to make a local inspection, a statement was made before him by the defendant-respondent on the one side and by the vakil as well as the husband of the plaintiff-appellant on the other, to the effect that the ease should be decided in accordance with what Muhammad Hadi Hasan, Mukhtar, had stated. On that date, however, no proceeding was recorded by the learned Judge of the small Cause Court. Next day on the 15 of September, 1920, an application was presented by the defendant to the Court to the effect that, although he had agreed to the decision of the case being left on the statement of Mahammad Hadi Hasan, Mukhtar, the day before, yet inasmuch as he had come to know that the said witness was under the influence and in collusion with the plaintiff he withdrew from the agreement. On this application the learned Judge of the Small Cause Court passed an order that, inasmuch as the defendant- respondent was not willing to abide by the statement of Muhammad Hadi Hasan, Mukhtar, the case should be put up for disposal. After this, the appeal was argued on both sides and disposed of on the merits.

(3.) The point raised on behalf of the plaintiff-appellant is that the lower Appellate Court should not have allowed the defendant to withdraw from his previous agreement. It is first contended this agreement amounted to an agreement to refer the matter in dispute to an arbitration. This, in my opinion, is not correct. In the first place, from the way in which the agreement is entered in the Robkar of the Court and the application of the defendant dated the 15 of September 1920, it appears that the parties had agreed to abide by the statement of Muhammad Hadi Hasan, Mukhtar, and not that they had agreed to refer the matter in dispute for decision by Muhammad Hadi Hasan, Mukhtar. Further more, no application in writing showing the agreement to refer the matter in dispute was ever filed in Court, nor did the defendant ever apply to the Court to refer the matter to Muhammad Hadi Hasan, Mukhtar. The provisions of Section 1 Sub-clauses (1) and (2) of Schedule II of the Civil Procedure Code were, therefore, not complied with. I am, therefore of opinion that there was not a reference to arbitiation by Muhammad Hadi Hasan, Mukhtar, and accordingly the Court was not deprived of its jurisdiction to hear the appeal. It is next contended that, even if it be not a reference to arbitration, the case fell under Section 9 of the Oaths Act and strong reliance was placed on the case of Chhiddu V/s. Kuar Sen 29 A. 49 : 3 A.L.J. 654 : A.W.N. (1906) 280, where it was pointed out by Aikman, J., that when a party to a suit has made a reference of this kind he should not be allowed arbitrarily to withdraw himself from the reference, specially when that party produced no evidence whatsoever to support the allegation that the referee had colluded with the opposite party.