CHATARBHUJ Vs. RAGHUBAR PAYAL

JUDGEMENT

(1.) The revisional jurisdiction of this Court is being invoked by a plaintiff whose claim for a sum of Rs. 1,200 plus interest has been dismissed by the Additional Subordinate Judge of Agra, under somewhat peculiar circumstances. The suit having been duly instituted was referred to arbitration by an agreement under paragraph 1 of the second schedule to the Code of Civil Procedure. The arbitrator had been directed to submit his award by the 8th of August, 1911. On the 20th of July, 1911, the defendant presented to the court an application supported by affidavit, asking the court to supersede the arbitration, on the ground that he had lost confidence in the fairness and impartiality of the arbitrator. The court directed that this application should come up for orders on the 28th of July, 1911, after notice to the plaintiff s pleader. It did not take the precaution of issuing orders to the arbitrator to suspend his proceedings pending the disposal of the said application. It is a matter for controversy whether the plaintiff s pleader did or did not receive notice. The record does not show that he did, and on the date fixed (July 28th, 39J1,) the matter was actually heard and disposed of ex parte. The court had no materials before it except the affidavit filed along, with the application of the 20th of July, 1911, and this affidavit is very badly drafted and does not bind down the deponent to affirming anything material as of his own personal knowledge. The court, however, contented itself with taking note of the fact that no one appeared to contest the application, and thereupon passed an order superseding the arbitration and fixing a date for proceeding with the suit. It at the same time issued an order to the arbitrator directing him to send in all papers connected with the proceedings before him. It would seem that this order reached the arbitrator on the 30th of July, 1911, and his reply reached the court on the 1st of August, 1911. He sent in a large number of papers, and with the rest, an award in favour of the plaintiff for Rs. 1,203 plus a certain amount of interest, the said award purporting to be dated the 27th of July, 1911.

(2.) The plaintiff went up to this Court in revision against the order of 28th of July, 1911, but a Bench of this Court held that no case bad yet been decided within the meaning of Section 115 of the Code of Civil Procedure, and that there could be no interference at this stage.

(3.) By the time the learned Subordinate Judge came to take up the suit again it would seem that he was beginning to entertain an impression unfavourable to the plaintiff s conduct of the case; at any rate ho passed a peremptory order requiring the personal attendance of the plaintiff on the next date fixed for hearing. The case then came up on the 20th of June, 1912, the plaintiff being represented by a pleader, but not appearing in person as directed. His pleader put in three applications, one after the other, all of which were rejected by the Court. One at least of these applications was very improperly worded, and I feel compelled to place on record the impression left on my mind by a perusal of the proceedings of that date, that there was some loss of temper on both sides. A mere inspection of the order by which the learned Subordinate Judge finally dismissed the plaintiffs suit suggests that it was written in haste and in some agitation of mind. The order as passed does not specify under what provisions of the Code of Civil Procedure it purports to be passed, and it certainly seems open to argument whether the court intended to apply the provisions of order XVII, Rule 2, or those of order IX, Rule 12, of the Code of Civil Procedure. When a court comes to the conclusion that a plaintiff before it has so mismanaged his case that, whatever may be the merits of his claim, it is right and proper that his suit should be dismissed Without an adjudication on the merits it is moat desirable that the court should itself pause to consider, and should place clearly on record, the precise provisions of the law under which it proposes to act. The plaintiff appealed to the District Judge against the order of dismissal, but the District Judge held the order to have been passed under order IX, Rule 12, of the Code of Civil Procedure and not to be open to appeal. The question of the propriety of the District Judge s order is not before us and there has been no argument on the point. I mention the matter only by way of explaining the unsatisfactory position into which the litigation has now got and as accounting for the plaintiffs delay in bringing the matter before this Court in revision.