1. This is a plaintiff's appeal arising out of a suit for possession of some land by demolition of certain constructions made by the defendant. The defendant had denied the plaintiff's title and the main issues raised in the case were questions of fact. Both the Courts below have dismissed the plaintiff's claim. So far as the decision on the merits is concerned, it is not challenged in second appeal before me and ground No. 3, taken in respect to the vague decision to which the finding has been arrived at, has not been pressed. The only point that has been strongly contended before me was that, in view of the agreement arrived at between the parties on the 14th of September, 1920, under which they had agreed to abide by the statement of one Muhammad Hadi Hasan, the lower Appellate Court was not justified in going behind that agreement and disposing of the appeal on the merits.
2. It appears that, on the 14th of September 1920, when the learned Judge of the Small Cause Court went to make a local inspection, a statement was made before him by the defendant-respondent on the one side and by the vakil as well as the husband of the plaintiff-appellant on the other, to the effect that the ease should be decided in accordance with what Muhammad Hadi Hasan, Mukhtar, had stated. On that date, however, no proceeding was recorded by the learned Judge of the small Cause Court. Next day on the 15th of September, 1920, an application was presented by the defendant to the Court to the effect that, although he had agreed to the decision of the case being left on the statement of Mahammad Hadi Hasan, Mukhtar, the day before, yet inasmuch as he had come to know that the said witness was under the influence and in collusion with the plaintiff he withdrew from the agreement. On this application the learned Judge of the Small Cause Court passed an order that, inasmuch as the defendant-respondent was not willing to abide by the statement of Muhammad Hadi Hasan, Mukhtar, the case should be put up for disposal. After this, the appeal was argued on both sides and disposed of on the merits.
3. The point raised on behalf of the plaintiff-appellant is that the lower Appellate Court should not have allowed the defendant to withdraw from his previous agreement. It is first contended this agreement amounted to an agreement to refer the matter in dispute to an arbitration. This, in my opinion, is not correct. In the first place, from the way in which the agreement is entered in the Robkar of the Court and the application of the defendant dated the 15th of September 1920, it appears that the parties had agreed to abide by the statement of Muhammad Hadi Hasan, Mukhtar, and not that they had agreed to refer the matter in dispute for decision by Muhammad Hadi Hasan, Mukhtar. Further more, no application in writing showing the agreement to refer the matter in dispute was ever filed in Court, nor did the defendant ever apply to the Court to refer the matter to Muhammad Hadi Hasan, Mukhtar. The provisions of Section 1 Sub-clauses (1) and (2) of Schedule II of the Civil Procedure Code were, therefore, not complied with. I am, therefore of opinion that there was not a reference to arbitiation by Muhammad Hadi Hasan, Mukhtar, and accordingly the Court was not deprived of its jurisdiction to hear the appeal. It is next contended that, even if it be not a reference to arbitration, the case fell under Section 9 of the Oaths Act and strong reliance was placed on the case of Chhiddu v. Kuar Sen 29 A. 49 : 3 A.L.J. 654 : A.W.N. (1906) 280, where it was pointed out by Aikman, J., that when a party to a suit has made a reference of this kind he should not be allowed arbitrarily to withdraw himself from the reference, specially when that party produced no evidence whatsoever to support the allegation that the referee had colluded with the opposite party.
4. There are, it appears to me, many difficulties in the way of the appellant. First of all, it is not clear that the agreement between the parties was that they would abide by Muhammad Hadi Hasan's statement on oath or solemn affirmation.' Neither the Robkar nor the application of the defendant mentions this. If they agreed merely to abide by the statement of this referee even though not on oath or solemn affirmation then neither Section 8, nor Section 9, of the Oaths Act would be applicable. Section 9 is by no means mandatory and it seems that, under certain special circumstances, the Court may have discretion to refuse to refer the matter to the referee. The way in which Section 9 is worded is significant, and it says that if any party offers to be bound by any such oath or solemn affirmation the Court may if it thinks fit ask such party or witness, etc. It seems to me, therefore, that it was open to the lower Appellate Court, if it was satisfied that there was sufficient reason for it, to refuse to refer the matter to the referee. In the present case, inasmuch as no judicial proceeding had been recorded, it might very well have been that the so-called agreement was an informal talk not reduced to writing, and, in any case, from the fact that the respondent had the very next day withdrawn from the agreement and revoked it, I am unable to say that the Court was wrong in exercising its discretion and in ordering that the appeal should be disposed of on the merits. The conduct of the appellant herself also shows that she did not insist that the matter should necessarily be referred to a referee. No application was made on her behalf pressing the Court to refer the matter to the witness, nor is there any reference in the judgment which would go to show that any objection was taken on her behalf at the time of the argument.
5. The case of Chhiddu v. Kuar Sen 29 A. 49 : 3 A.L.J. 654 : A.W.N. (1906) 280, and the previous cases referred to therein, are all oases in which the Court had got the statement of the referee actually recorded and disposed of the case in accordance with it. The present case, however, stands on a different footing. Here the Court itself did not get the statement recorded but has disposed of the appeal on the merits. The question, therefore, is whether the Court had jurisdiction to proceed in the way in which it has done, or whether its procedure was illegal or improper. I am unable to say that the Court either had no jurisdiction or that it had acted in an improper manner.
6. On behalf of the respondent it was also urged that there was no person duly authorised who could agree to this reference on behalf of the plaintiff and that it is only the party and not her agent who can agree to a reference under Section 9 of the Oaths Act. I am, however, of opinion that the vakalatnama executed by the plaintiff gave sufficient authority to the vakil to proceed with the case in any way he liked, and that, whatever he did in the case, was accepted as binding on the plaintiff. The case is similar to that of Wasi-ul-Zaman Khan v, Faiza Bibi 32 Ind. Cas. 348 : 38 A. 131 : 14 A.L.J. 88 which is also an authority for the contention that a party's agent may bind the party by an agreement under Section 9 as much as a party herself. For the reasons given, however, I am of opinion that the decree of the lower Appellate Court cannot be disturbed in second appeal.
7. The result is that this appeal fails and is hereby dismissed with costs including in this Court fees on the higher scale.