1. This second appeal and the connected civil revision are inter-dependent and proceed upon common grounds.
2. On 29th November 1928, Ram Raj Singh, Ram Deo Singh and Mt. Parkali instituted a suit against Basdeo Singh for a declaration of title to certain property situate in village Rajwari and for the cancellation of an award, dated 17th September 1928 made by Raghunandan Singh and others consequent upon an agreement of reference to arbitration, dated 2nd Juno 1928. The plaintiffs alleged that the agreement of reference was vitiated by fraud and that the award was not binding upon them. This suit was registered as No. 688 of 1928 in the Court of the Havali Munsif of Benares City. Basdeo Singh filed a written statement on 22nd January 1929 which amounted to a traverse of all the materials facts whereon the claim was founded.
3. On 25th January 1929 Basdeo Singh presented an application in the same Court under para. 20, Section 2, Civil P.C., and prayed that the award, dated 17th September 1928, be filed and that a decree be passed in accordance therewith. This application which was subsequently registered as Suit No. 46 of 1929 was directed against Ram Raj Singh and Ram Deo Singh. Mt. Parkali was no party to it. She appears to have been omitted from the array of defendants presumably on the ground that she had no interest in the subject matter in dispute. Sam Raj Singh and Ram Deo Singh filed a written statement on 15th February 1929. The grounds of attack in Suit No. 688 of 1928 constituted, in substance, the grounds of defence in this proceeding.
4. Both the cases were fixed for hearing on 31st August 1929. On that date, the parties made a statement in Court whereby they agreed to abide by the statement of one Thakur Baldeo Singh about the subject-matter in dispute. This statement was recorded in the order sheet. The word used in the order sheet is not 'bayan' but 'faisla' (decision); but reading the order sheet as a whole, there can be no doubt that the intention of the parties was to abide by the statement of Thakur Baldeo Singh. Mt. Par kali does not appear to have joined in the said statement before the Court. The Court ordered that a parwana be issued to *the referee -and that the latter be directed to file his faisla in two days.
5. A similar statement was recorded in the order-sheet of Suit No. 46 of 1929. The Court directed that a parwana be issued to the referee directing him to file his faisla till 4th September 1929 and that the case be put up for disposal on 4th September 1929.
6. On 3rd September 1929 Mt. Parkali appears to have signified her assent to a reference to Thakur Baldeo Singh. A parwana was directed to be issued to Thakur Baldeo Singh. The record shows that this parwana never reached the hands of the Thakur.
7. On 3rd September 1929 Thakur Baldeo Singh came to the Court of the learned Munsif of Havali. Oath was administered to him, and he made a certain statement. This statement was recorded in Suit No. 46 of 1929. The learned Munsif gave effect to that statement and dismissed the suit of Basdeo Singh for ' filing an award.
8. Suit No. 688 of 1928 was taken up by the Munsif on the following day. Thakur Baldeo Singh does not appear to have made any verbal statement before the Court; but he filed a statement in writing, which is to be found at p. 15 of the paper book. He stated that he had already given his decision in Court on 3rd September 1929, and his decision in the present case was just the same and that, as the result of his decision the plaintiffs' claim should be decreed with costs. The learned Munsif accepted the 'decision' of the referee and decreed Suit No. 688 of 1928 with costs.
9. Two appeals were preferred to the learned District Judge from the orders of the learned Munsif in the two cases referred to above. These appeals were transferred for hearing to the Court of the Second Additional Subordinate Judge of Benares. He took up the appeal from the order in Suit No. 46 of 1929 first, and came to the conclusion that there was no reference to arbitration within the purview of Section 2, Civil P.C, that the agreement of reference amounted to an agreement to abide by a statement on oath and that the said statement having been given by the referee on oath, the Court was bound to pass a decree in accordance therewith. He accordingly affirmed the order of the trial Court and dismissed the appeal. He next took up the appeal in the connected suit and decided that case upon the ground that the order in the connected suit operated as res judicata.
10. The orders of the Second Additional Subordinate Judge of Benares have given rise to the second appeal and the application for civil revision that we are now dealing with.
11. We have considered the agreement of| reference as embodied in the two order sheets in the two cases and are of opinion that there was no agreement of reference to arbitration and that the transaction did not amount to an agreement to abide by the sworn testimony of the referee. The agreement amounted to an under, taking on the part of the disputants that they would be bound by the statement of Baldeo Singh, the nominee. The agreement to abide by the statement of a certain individual nominated by the parties to a pending action, amounts to an agreement to accept an adjustment of the case which might ensue as the result of the statement made by the nominee, the said statement furnishing the agreed data whereon the adjustment was to be founded. This appears to be the view which has been taken by this Court in a number of cases, notably in Himanohal Singh v. Jatwar Singh A.I.R. 1924 All. 570, Deoraj Misra v. Abhai Raji : AIR1927All584 and Ram Batan v. Ram Lal Singh : AIR1929All759 . It follows that we do not accept the construction put upon the agreement by the lower appellate Court, that the statement referred to was to be a statement on oath.
12. Where the agreement of the parties is not to refer their dispute to arbitration within the purview of Section 2, Civil P.C., nor is an agreement to abide by the sworn 'testimony of a particular referee within the meaning of Sections 9 and 11, Oaths Act, the agreement in question may be withdrawn or resiled from by one party or the 'other before the statement has been made in Court and action taken thereon: vide in Bishambhar v. Radha Kishunji : AIR1931All557 .
13. It is abundantly clear from the facts we have stated above that the procedure adopted by the trial Court in disposing of Suit No. 46 of 1929, was irregular and not in accordance with law. The 3rd September 1929 was not the date fixed for the hearing of the case On that date, the parties did not appear in Court either in person or through their pleaders. The learned Munsif however, for some reasons which do not appear from the record, took up the case on that date, and behind the back of the parties dismissed the suit by accepting the sworn testimony of the referee.
14. A preliminary objection has been taken by Mr. Shastri that the order of the lower appellate Court is not open to revision under Section 115, Civil P.C, and reliance has been placed upon a decision of this Court in Chandu Lal v. Koka Mai A.I.R. 1921 All. 226. The facts of this case were that a certain plaint was returned by the trial Court for presentation to the proper Court. An appeal was preferred to the learned District Judge, who differed from the trial Court and, setting aside the order of that Court, remanded the suit for trial on the merits. An application for revision having been filed under Section 115, Civil P.C, this Court held that the appellate Court had jurisdiction to entertain the appeal and to pass such orders as it considered fit, and that even if the order were erroneous, it was passed by a Court having jurisdiction and consequently was not obnoxious to the provisions of Section 115. We are of opinion that the facts of this case are entirely different from the case now in hand. The learned Munsif had no jurisdiction to take up the case on a date which was not fixed for hearing and to pass rders on the case behind the back of the parties. On this short ground, we would accept the application for revision, set aside the orders of the Courts below and send back the case to the trial Court for disposal of the-application according to law.
15. It was open to one or the other parties to the reference to resile from the agreement on 3rd September 1929. A telegram was sent to the Additional Munsif of Havali, which was worded thus;
Basdeo Singh v. Ram Raj Singh, etc., Case No. 46 of 1929. Baboo Baldeo Singh panch decision not required being uncle of Babo Jagannath Singh, pleader, who is pleader of against party hence no judgment hoped kindly try case yourself he is under pressure-Basdeo Singh.
16. It was received in Court before 4th September 1929, which was the date fixed for the hearing of the suit. As a matter of fact, it was received on the 3rd September; but the learned Munsif paid no attention to it upon a twofold ground : firstly, that no representation made through a telegram was entitled to attention; and secondly, that the suit had already been disposed of. There can be no manner of doubt that the suit was decided by the learned Munsif with indecent haste. Basdeo Singh had the right to resile from the original agreement any time during the pendency of the suit and so long as no proper statement had been made by the referee in terms of the agreement. We have examined the statement of Baldeo Singh in detail and are of opinion that his so-called 'decision' is extremely vague; and that we find it extremely difficult to hold that he had made any pronouncement upon any of the questions which were really in dispute-between the parties. It has got to be remembered that the plaintiffs claimed to sweep aside the award dated 17th September 1928, upon the ground that the initial agreement of reference, dated 2nd June 1928 had been procured by fraud, that the award itself was the outcome of fraud and collusion and that the property in dispute was the exclusive property of the plaintiffs because of a partition which had taken place nearly half a century before the action. Thakur Baldeo Singh does not appear to have applied his mind to this part of the case at all and he sweeps aside the award with the observation that the agreement to refer to arbitration is wrong. It is true that he states that the parties have been separate for a fairly long time and that there was no necessity to enter into an agreement of reference to arbitration about the division of the property, but he makes no attempt to definitely tackle the cardinal issues in the case.
17. The order of the Munsif in Suit No. 46 of 1929 having been set aside, the said order does not operate as res judicata in the connected suit. The statement in writing filed by the referee in the said suit is open to the same criticism which his sworn testimony was exposed to. The learned Munsif was not justified in accepting that statement as one in due accordance with the agreement arrived at between the parties on 31st August 1928 or as one deciding the points in. controversy. The result is that we set aside the decree of the Courts below in Suit No. 688 of 1928 and remand the suit to the trial Court under Order 41, Rule 23, Civil P.C., for disposal according to law. The agreement, dated 31st August 1928, having been already resiled from, the suit has to be tried by the learned Munsif himself. Basdeo Singh is entitled to his costs in both the suits throughout. Suit No. 46 of 1929 must also be tried on the merits by the learned Munsif.