R. B. INDRAJ SINGH Vs. KOMAL RAM SINGH

JUDGEMENT

(1.) 1. This is an application for review of judgment delivered by Macnair, A.J.C., who has now proceeded on leave, and by myself in Miscellaneous Appeal No. 8 of 1926. The facts of the case are sufficiently clear from the opinions delivered by Macnair, A.J.C., and myself and by our final joint judgment.

(2.) THE present applicant was the defendant-appellant in this Court. It will appear that Macnair, A.J.C., and myself disagreed as to whether there was a final and enforceable agreement arrived at as relied on by the plaintiff-non-applicants. Macnair, A.J.C., was of opinion that the agreement in question had been established, while I took a reverse view and was further, in any event, of opinion that, even if it had been established, the case was one in which the lower Court was incorrect in exercising its discretion in favour of the plaintiffs by way of giving a decree for specific performance. We were both, however, of opinion that the question as to whether there had been a final agreement or not between the parties, was a question of fact and that, therefore, the case fell under Section 98, Sub-section (2) Civil P.C., the result being that, as Macnair, A.J.C's. judgment prevailed, the finding of the lower Court on the point stood.

(3.) VERY wisely, the applicant's counsel did not argue grounds like the applicability of Section 10, Clause (b)(2) of the Central Provinces Courts Act of 1917 in the present case. He confined his argument to two propositions. The whole matter at issue in the case was whether there had been a final agreement as evidenced or supported by the document (P. 1). The argument advanced before me has been that the construction of the terms of such a document is a question of law only : cf. Fateh Chand v. Kishan Runwar [1912] 34 All. 579, Ramgopal v. Shamskhaton [1893] 20 Cal. 93, Nafar Chandra Pal Chowdhury v. Shukur Sheikh A.I.R. 1918 P.C. 92 and Surendra Nath roy v. Dwarka Nath Chakravarti [1917] 44 Cal. 119. The provisions laid down in these rulings are obviously true, but I desire to-point out that, in the present instance, the question was not so much as to the nature of the agreement. If P. 1 evidenced a final agreement, the terms of it were sufficiently clear therefrom. The real question at issue was a pure one of fact as to whether or not a final agreement of the kind had been arrived at. On behalf of the present defendant-applicant the position was that P. 1 was nothing more than a mere memorandum made in the course of transactions between the parties before any final agreement had been arrived at.