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Hem Lata Vs. Jamboo Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 230 of 1958
Judge
Reported inAIR1959All382
ActsCode of Civil Procedure (CPC) , 1908 - Order 3, Rule 4; Arbitration Act, 1940 - Sections 2
AppellantHem Lata
RespondentJamboo Prasad and ors.
Advocates:K.C. Saksena, Adv.
DispositionAppeal dismissed
Excerpt:
.....who was witness of the plaintiff's own choice - plaintiff cannot resile from it on ground that mukhtar khas exceeded the power given to him. - - on that date, the plaintiff's counsel sri hukum chand jain as well as the plaintiff's mukhtar-khas sri tirlok chand offered to be bound by the statement of sri jamboo prasad defendant no. 3. before we proceed to consider the legal aspect of the matter, we would like to state the terms of the mukhtarnama khas the material parts of which have been reproduced by the court below in its judgment. saxena appearing on behalf of the appellant has been good enough to place before us from his own record a copy of the mukhtarnama khas in order to enable us to interpret the terms thereof. in that case it was decided thatthe parties to a suit can..........limitation.on that date, the plaintiff's counsel sri hukum chand jain as well as the plaintiff's mukhtar-khas sri tirlok chand offered to be bound by the statement of sri jamboo prasad defendant no. 1 provided that the statement was made on the special oath of sri mahabir ji swami. sri jamboo prasad agreed to give his statement on that special oath. the offer was accepted by the counsel of the defendants.the statement of sri jamboo prasad was recorded on that special oath and the suit was dismissed on the 16th november, 1957 on the basis of that statement. some time later an application purporting to be one under order 9 rule 9 of the code of civil procedure and section 151 of the code was made by the plaintiff upon the allegation that sri tirlok chand mukhtar khas who was the maternal.....
Judgment:

D.N. Roy, J.

1. This is an appeal by the plaintiff against an order dated the 25th of April, 1958 passed by the learned civil Judge of Saharanpur. It arises under the following circumstances.

2. A suit was instituted by the plaintiff for recovery of her ornaments or in lieu thereof for the recovery of a certain sum of money. The suit was resisted by the defendants and certain preliminary issues were raised. The suit was fixed for the 16th of November, 1957 for the hearing of the preliminary issues relating to the jurisdiction of the court to try the suit and the plea of limitation.

On that date, the plaintiff's counsel Sri Hukum Chand Jain as well as the plaintiff's Mukhtar-Khas Sri Tirlok Chand offered to be bound by the statement of Sri Jamboo Prasad defendant No. 1 provided that the statement was made on the special oath of Sri Mahabir Ji Swami. Sri Jamboo Prasad agreed to give his statement on that special oath. The offer was accepted by the counsel of the defendants.

The statement of Sri Jamboo Prasad was recorded on that special oath and the suit was dismissed on the 16th November, 1957 on the basis of that statement. Some time later an application purporting to be one under Order 9 Rule 9 of the Code of Civil Procedure and Section 151 of the Code was made by the plaintiff upon the allegation that Sri Tirlok Chand Mukhtar Khas who was the maternal uncle of the plaintiff and in whose favour the Mukhtarnama dated the 19th of September, 1956 was made, was not authorised to get the suit decided on the special oath of the defendant and that Sri Hukum Chand Jain Advocate who was engaged by Tirlok Chand on behalf of the plaintiff did not derive any authority which was in excess of the authority given to Sri Tirlok Chand under the Mukhtarnama Khas.

The plaintiff therefore desired that the decree dated the 16th of November, 1957 should be set aside and the case should be reheard. The application was opposed by the defendants on the ground that the suit having been determined on merits no application under Order 9 Rule 9 of the Code or under Section 151 lay. The court below accepted the contention of the defendants and upon the examination of the terms of the Mukhtarnama Khas dated the 19th of September, 1955 held that the Mukhtar Khas had the power to summon a witness as referee and to have the case decided upon the statement of that referee upon special oath. Upon that view of the matter the application for restoration was dismissed. It is against that order that the present appeal has been preferred.

3. Before we proceed to consider the legal aspect of the matter, we would like to state the terms of the Mukhtarnama Khas the material parts of which have been reproduced by the Court below in its judgment. Mr. Saxena appearing on behalf of the appellant has been good enough to place before us from his own record a copy of the Mukhtarnama Khas in order to enable us to interpret the terms thereof. The words contained in this Mukhtarnama Khas are these :

'Mukhtar mausuf ko akhtiyar deti hun ki wo dawa uprokt daskhat mere ko adalat mausuf men pesh kare wa pairvi mukadma wa sabut tahriri ya zabani dakhil kare ya gawah talab karwae, khurak gawah dakhil kare ya wapis lewe ya beyan dewen ya bahas karen ya mauyina misil kare ya naqulat hasil karen ya wakil ya advocate niyokt karen, wakalatnama par hastaksher kare wa razinama karen ya sulahnama per hastaksher karen, wa tasdik karen, dawa wapis lewen ya appeal nigrani dakhil kare, mujwad appeal par hastaksher karen ya darkhast Ijrae par hastaksher kare wa tasdik karawen wa pesh karen ya madiyun ki jaedad ki kurki wa nilam karwaen aur zare nilam wasul karen, dawa haza men mujra de kar wasuli dakhil karen aur jaedad manmukir ki nam ki khariden ya bayan halphi dewen ya darkhwast wapsi zar par hastaksher karen wa pesh karen wa bichar wasul karen wa bichar ka rupya khajana sarkar se wasul karen, garze ki dawa uprokt ke mutallik jumla pairvi mere janib se Karen, jumla pairvi wa karya mukhtar khas mausuf misl kar kardae manmuqir motassavvir hoga aur manmuqir ko puri tarah kubul wa swikar hoga. Uzr nahin hoga.'

4. We have reproduced the terms of the mukhtarnama Khas in extenso in order to bear out our view that the terms were wide enough to entitle the mukhtar Khas to have the matter determined upon the statement of a referee upon special oath.

5. Coming now to the legal aspect of the matter, it appears that in very much similar circumstances it was held by a Bench of this Court in Wasi-uz-zaman Khan, v. Faizi Bibi, ILR 38 All 131: (AIR 1916 All 165) that a Mukhtar Khas had the power to take action under Sections 8, 9 and 10 of the Oaths Act of 1873. In that case the plaintiff who was a lady gave to her husband a special power of attorney to conduct the case in her behalf 'as he should deem fit.'

He was authorized to compromise or withdraw the suit, to refer it to arbitration and to nominate arbitrators, and finally the plaintiff said that every step that he might take in the conduct of the case was to be considered as having been taken by herself. It was held that the husband had power to take action under Sections 8, 9, 10 of the Oaths Act, 1873.

6. Learned counsel for the appellant has relied upon a Bench decision of the Bombay High Court in Sadashiv Rayaji v. Vithal, ILR 14 Bom. 455 in support of his view that an agent holding a power of attorney authorising him to act and appear for a party to a suit, cannot bring the suit to a close by offering to be bound by the oath of the opposite-party in a particular form, nor can a pleader so bind his client, and that under the Indian Oaths Act (X of 1873) no person but the oarty himself can make such an offer as is contemplated in Section 9. This decision of the Bombay High Court has been, expressly dissented from by this Court in ILR 38 All 131 : (AIR 1916 All. 165) referred to above.

6a. There is a Full Bench decision of this Courtin Akbari Begam v. Rahmat Husain : AIR1933All861 in which various cases bearing upon this question had beennoticed. In that case it was decided thatthe parties to a suit can validly agree, evenapart from the Indian Oaths, Act, that they willabide by the statement of a witness, including onewho is a party to the suit and they can leave thedecision of all points including costs arising in thecase to be made according to the statement, that inthe case of an appointment of a vakil by vakalatnama to conduct a case, it is prima facie impliedthat he has full power to conduct the case in theway he considers best, and therefore, such a document should be construed liberally.

If a Vakalatnama confers very wide powers in very general terms on the Vakil, and authorises him to conduct the case and to take other proceedings and expressly states that whatever is done by the Vakil should be accepted by the litigant, and specifies particularly important powers like those of appointing arbitrators and compromising disputes, the power to abide by the statement of any witness whether under, the Oaths Act or by way of an agreement or compromise is by necessary implication implied.

It was further held in that case that an agreement to abide by the statement of a particular witness is in substance not a reference to arbitration. That was a suit for recovery of their shares brought by two daughters of a deceased person against three brothers, and in that suit defendants set up deeds of gift executed by deceased. On the date fixed for producing evidence a joint application, signed by the husband of plaintiff (describing himself as pairokar) and by the defendants and plaintiffs' advocates, was filed.

The applicants agreed to abide by the statement of defendant No. 1 made in court and net to produce any evidence. The vakalatnama appointing the plaintiffs' vakil gave him general power to conduct the case, to take all necessary proceedings in the case and in particular to appoint arbitrators and to compromise the suit. It was also covenanted that whatever was done by the vakil should be accepted by plaintiffs. The defendant 1 made a statement on oath in favour of defendants on all important points stating that the parties should bear their own costs.

The suit was dismissed in accordance with this statement. It was held that the agreement was not opposed to public policy nor repugnant to the provisions of the Contract Act or any other law but was binding on the parties and that the power to abide by the statement of defendant No. 1 was necessarily implied in the general authority given under the vakalatnama and therefore the plaintiffs' vakil was authorized to enter into the agreement.

7. This Full Bench decision is a complete answer to the submissions made by the learned counsel for the appellant. Here the Mukh-tarnama Khas conferred very wide powers in very general terms on the Mukhtar Khas and had authorised him to conduct the case and to take all proceedings necessary in the case; and it expressly stated that whatever would be done by him should be accepted by the litigant, and specified particularly important powers narrated above.

The powers to abide by the statement of any witness whether under the Oaths Act or by the agreement is by necessary implication implied in the mukhtarnama Khas and also implied in the vakalatnama which was executed by the Mukhtar Khas in favour of the Vakil representing the plaintiff. The decree having been passed on the basis of the statement of the witness who was a witness of the plaintiff's own choice, the plaintiff cannot resile from it on the ground that the Mukhtar Khas had exceeded the power given to him by agreeing to abide by the statement of the referee.

8. It was contended on behalf of the appellant that the present appeal may be treated as a revision and if should be heard and decided on the basis that the appointment of the referee or special witness by the Mukhtar Khas was vitiated by fraud. We are not disposed to agree to this prayer of learned counsel, for it appears to us that the decree dated the 16th of November, 1957 was assailed not on the ground of fraud but on the ground that it was based upon something which was in excess of the authority given to the Mukhtar Khas or to the vakil who was appointed by the Mukhtar Khas on behalf of the plaintiff. In every view of the matter, we find no force in this appeal and we accordingly dismiss it.


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