Sulaiman and Kanhaiya Lal, JJ.
1. These two appeals are connected and arise out of two suits for pre-emption.
2. On the 22nd of February, 1922, before the trial court the plaintiff and the contesting defendants with the pleaders for both parties signed a written statement to the following effect:
It has been settled between the parties that Rai Sahib Pandit Gopal Das Sharma, vakil, shall hear out the whole affair and that we shall accept any statement that he may make before the court.
3. It is not necessary to refer to the various adjournments in the case, but it may be noted that ultimately the case was under an order of the District Judge transferred from the court of the learned Munsif to that of another officer. Pandit Gopal Das Sharma, vakil, made a statement on oath before this latter court, and the suit was dismissed in accordance with the referee's statement.
4. On appeal by the plaintiff to the District Judge that decree has been affirmed.
5. On behalf of the plaintiff it is strongly contended that the statement referred to above was not a reference to arbitration; nor did it come under the Oaths Act. It is, accordingly, urged that it is in no way binding on the plaintiff, and that the courts below should have decided the case on the merits and not on the mere statement of Pandit Gopal Das Sharma.
6. We arc of opinion that the contention of the plaintiff cannot prevail. The case can be looked at from two points of view. To say the least, the statement being duly signed by the plaintiff as well as his pleader amounted to an agreement that he would be bound by the statement that would be made by the referee. The statement made by the referee was clearly a statement made by a person to whom the parties to the suit had expressly referred for information in reference to the matters in dispute, and was a statement within the meaning of Section 20 of the Indian Evidence Act. It is true that ordinarily mere admissions are not conclusive, as is provided in Section 31; but admissions of this kind must be taken to be admissions made in a suit by the nominee of a party thereto. Such admissions, therefore, are as conclusive and effectual as admissions made by the parties in their written or oral pleadings. The effect is to prevent each party from resiling from the statement made by such a nominee.
7. It may also be said that the parties really compromised their dispute in this manner that they agreed that the decree of the court shall be in accordance with the statement to be made by their nominee hereafter. There is nothing to prevent the parties from compromising the suit and agreeing to a decree being passed in terms to be stated by a person named. Such an agreement, therefore, would be an adjustment of the suit, and it is difficult to see how any party could be allowed to go back on it. The Madras High Court has treated such an agreement as an adjustment of the claim: Vide Chinna Venkatasami Naicken v. Venkatasami Naicken. (1919) I.L.R. 42 Mad. 626 and the earlier cases referred to therein. In the case of Muhammad Asghar Ali Khan v. Muhammad Imtiaz Ali Weekly Notes, 1898, p. 200 it was held that an agreement by a defendant to a civil suit, to be bound by whatever statement might be made by the plaintiff upon oath, was binding on him even though it did not fall under the Oaths Act. A similar view has been expressed by WALSH, J., in the case of Kesho Ram v. Peare Lal (1923) 21 A.L.J. 209.
8. We are satisfied that it is impossible to allow the plaintiff now to go back on the statement. There is no suggestion that there was any fraud or dishonesty or misrepresentation which has prejudiced the plaintiff. We accordingly dismiss this appeal under Order XLI, Rule 11, of the Code of Civil Procedure.