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Bishamber Dayal Vs. Kishan Chand and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 2538 of 1980
Judge
Reported inAIR1983P& H445
ActsEvidence Act - Sections 20; Code of Civil Procedure (CPC), 1908
AppellantBishamber Dayal
RespondentKishan Chand and anr.
Cases ReferredBishambar v. Radha Kishunji
Excerpt:
.....further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments..........decree in the previous suit. during the pendency of the present suit, on jan, 9, 1980, dr. s. s. jain was appointed as a referee by the trail court on the joint statement made by the parties be that the suit filed by the parties be dismissed as withdrawn. though, there in, he also gave certain other directions, but the same are not relevant for the purposes of this appeal. against the decision of the abovesaid referee, objections were filed on behalf of the plaintiff which were dismissed by the trial court as not maintainable because the decision of the referee was not an award a contemplated called the act). consequently, the plaintiff's suit was dismissed. against the judgment and decree of the trial court, the plaintiff filed an appeal which was also dismissed by the lower appellate.....
Judgment:

1. The plaintiff-appellant has filed this appeal against the judgment and decree of the Additional District Judge, Rohtak, dated Sept. 6, 1980, whereby the decree of the trial Court making the decision of the reference the rule of the Court holding that his objection petition was not maintainable, was upheld.

2. The plaintiff had filed the suit prying for a decree to the effect that the decree dated July 17, 1964, passed between the parties on the basis of the compromise, was illegal and the same was based upon misrepresentation committees by defendant No. 2, Raghbir Dayal. A further prayer was also made that after declaring the said decree as void and illegal, the proceedings should be commenced afresh from the stage of the passing of the preliminary decree in the previous suit. During the pendency of the present suit, on Jan, 9, 1980, Dr. S. S. Jain was appointed as a referee by the trail Court on the joint statement made by the parties be that the suit filed by the parties be dismissed as withdrawn. Though, there in, he also gave certain other directions, but the same are not relevant for the purposes of this appeal. Against the decision of the abovesaid referee, objections were filed on behalf of the plaintiff which were dismissed by the trial Court as not maintainable because the decision of the referee was not an award a contemplated called the Act). Consequently, the plaintiff's suit was dismissed. Against the judgment and decree of the trial Court, the plaintiff filed an appeal which was also dismissed by the lower appellate Court. Dissatisfied with the same, he has come up in second appeal to this Court.

3. The only short point involved in this case is whether Dr. S. S. Jain was appointed as a referee, or as an arbitrator as provided under Act. It is the common case of the parties that in case he was appointed as a referee, then no objection could be filed against his decision whereas if it is held that he was appointed as an arbitrator, then objections filed against his award, under the Act, are to be held as maintainable. The concurrent findings of both the Courts are that Dr. S. S. Jain was appointed as a referee and not as an arbitrator. The lower appellate Court has reproduced the joint statement of the parties made on Jan, 9, 1980, on the basis of which Dr. S. S. Jain was appointed as a referee, in the judgment under appeal. it reads,-----

'We have appointed Dr. S. S. Jain son of Shri Ulfat Rai Jain, resident of Satya Narain Bhawan, Worli Scheme, Bombay, to settle all our mutual disputes relating to land, property, shop, house factory etc. Whatever decision is taken by him shall be acceptable to us. We have appointed him (Dr. Jain as a referee and not as a receiver. It will not be incumbent upon the referee to make statement in the Court, but the decision to be given by him shall be made, in writing, which he shall be at liberty to send to the Court by post.' The original joint statement made by the parties is in Hindi. The English translation thereof reproduced above, has been rendered by the lower appellate Court. After a perusal of the original joint statement of the parties in Hindi, it appears, its correct English translation would be as follows : 'We have appointed Shri S. S. Jain, son of Shri Ulfat Rai Jain, resident of Sat Narain Bhawan, Worli Sea Face Bombay, to decide all our disputes relating to property viz., land, shop, house and factory etc. and we undertake that the decision given by him shall be binding on us. We have appointed him as a referee and not an arbitrator. It is not necessary that the referee should appear as a witness in the Court for evidence, but whatever he decides, will give, in writing, and he can communicate the same to the Courts by post. We hereby undertake that the decision of the referee Shri S. S. Jain, shall be binding on us, the three brothers, as well as our children.'

4. It has been contended on behalf of the appellant, that in order to come to the conclusion whether Dr. S. S. Jain was appointed as an arbitrator or a referee by the parties, one has to see the manner in which he has proceeded in the matter for giving his decision. According to the learned counsel, from the decision submitted by him to the Court, it is quite evident that he took evidence, heard the parties and then, ultimately, gave his decision, in writing. Thus, according to the learned counsel, Dr. S. S. Jain, could not be said to be a referee within the meaning of S. 20 of the Evidence Act. To all intents and purposes, according to the learned counsel, Dr. S. S. Jain, was appointed as arbitrator by the parties and by all means, the decision given by him was an award under the Act. In support of his contention, then learned counsel relied upon Sadhu Ram v. Ude Ram, AIR 1967 Punj 179 and Ramji Lal v. Ram Sanehi Lal Pandey. AIR 1978 All 351. On the other hand, the learned counsel for the respondents, contended that the intention of the parties in the present case has to be gathered from the joint statement, which they made at the time of the appointment of Dr. S. S. Jain, on Jan, 9, 1980. According to the learned counsel, it has been amply made clear in the said joint statement itself that Dr. S. S. Jain was being appointed as a referee and not as an arbitrator. it has been further agreed between the parties that it will not be incumbent upon Dr. S. S. Jain to make a statement in the Court, but the decision may be given by him. in writing, which he shall be at liberty to send to the Court by post. Thus, according to the learned counsel, he was not to be examined as a witness on oath as contemplated under S. 20 of the Evidence Act. As a matter of fact, the parties compromised the matter in such a manner that any decision given by him was acceptable to both the parties and, that is why it was specifically mentioned that he was not being appointed as an arbitrator. Moreover, according to the learned counsel, it has been concurrently held f by both the Courts below that Dr. S. S. Jain was appointed as a referee and not as an arbitrator by virtue of the joint statement made by the parties and, therefore, this Court should not interfere with that finding in second appeal. In support of his contention, the learned counsel relied upon Himanchal Singh v. Jatwar Singh, AIR 1937 All 701 and Suraj Narain Chaube v. Beni Madho Chaube, AIR 1937 All 701 and Suraj Bhan v. Jogi Ram, (1973(75 Pun LR 498 : (AIR 1972 Punj 396).

5. I have heard the learned counsel for the parties at a great length and have also gone through the case law cited at the bar.

6. In Sadhu Ram's case (AIR 1967 Punj 179)(supra), it has been observed in para 9 of the report that it was clear that the so-called reference by the parties to Mr. Laxmi Chand as referee was not based on any provisions of the Civil P. C., which, in fact, does not contain any such provisions, and generally, references are regarded as being made under S. 20 of the Evidence Act, which reads,--

'Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admission.'

According to the further observations made in the abovementioned case, it is hard to read into this section any mere than that if a party to a suit agrees to be bound by a statement of fact made by a third party when made by the party who made the offer, and if both parties agree to refer a matter to a third party his statement will be binding on both of them. According to the learned Chief Justice who spoke for the Bench, he could not regard the word 'information' as meaning anything but a statement of fact, and not a decision of any kind. Thus, in view of this judgment, the decision as given by Dr. S. S. Jain, as per the statement made by the parties, may not be strictly covered by the provisions of S. 20 of the Evidence Act. Moreover, in the present case, Dr. S. S. Jain was not supposed to make a statement in Court as he was authorised to give his decision which could be sent by him to the Court by post. In this state of affairs, the question is ; whether the parties could compromise the matter in such a manner an to appoint Dr. S. S. Jain as a referee not under S. 20 of the Evidence Act, but otherwise particularly when it was specifically stated in the joint statement of the parties that he was not being appointed as an arbitrator?

7. As regards the intention of the parties, it is quite evident that they appointed Dr. S. S. Jain as a referee and not as an arbitrator even though he might have heard the parties and recorded evidence. it is also further clear from the circumstances of the case that earlier also, a decree, which was challenged in the present suit, was passed on the basis of the compromise entered into between the parties and therefore, the parties thought it advisable to get the matter settled by a third person in whom both of them reposed their confidence. If the intention of the parties is to be gathered from the order under which, a person is appointed as a referee, then, in the present case, their intention was amply made clear in the joint statement by them to the effect that whatever decision is to be given by Dr. S. S. Jain, that shall be acceptable to them. Under these circumstances, the manner in which he proceeded in the matter is hardly material to gather the intention of the parties by his subsequent conduct. Moreover, if at the time of the appointment a person is given to understand that he is being appointed understand that he is being appointed as a referee and not as an arbitrator and not as a referee and that the objections against his decision are maintainable it will be putting the person in a very awkward position. that person might not have accepted the offer at that time in case he was told that any decision given by him will be subject to the objections to be filed by the parties against his decision. In any considered opinion, this is a very important consideration to be borne in mind at the time of the appointment of a person as a referee or as an arbitrator.

8. One of the questions referred to the Division Bench in Sadhu Ram's case (AIR 1967 Punj 179)(supra) was whether, on the facts and circumstances of the case, it was clear that Shri Laxmi Chand was an arbitrator within the meaning assigned to that phrase in the Act and was not a referee from whom any information had been sought within the meaning of S. 20 of the Evidence Act. Since it was held therein that the appointment of Shri Laxmi Chand did not fall within the purview of S. 20 of Evidence Act, consequently, it was held that he was an arbitrator within the meaning assigned to that phrase in the Act. No such contention was ever raised in the present case in the two Courts below. Similarly,, in Ramji Lal's case (AIR 1978 All 351)(supra) a joint application was made on behalf of both the parties praying that one S be appointed as a referee under S. 20 of t he Evidence Act. In the said application, it was inter alia stated by the parties that whatever would be stated by the said sole referee either in person before the court or by a statement in writing to be treated as sole evidence of both the parties and both the parties would be bound by the same. It was held in that case that it was hard to describe it a case to which S. 20 of the Evidence Act could be said to be applicable though on a true construction of the application, it had to be held that S was appointed the sole arbitrator by the parties. As observed earlier, such is not the position in the present case. As a matter of fact, the parties compromised the suit in such a manner that whatever decision Dr. S. S. Jain would render as a referee, the same would be acceptable to them. He was not even required to make a statement in Court; rather he would send his decision, in writing, to the Court even by post. Nothing has been argued in this appeal on behalf of the appellant to suggest that there was any statutory bar to this court being adopted by the parties. It there was no legal bar in adopting such a course by them, then, after giving my thoughtful consideration to the facts and circumstances of this case, I do not find any infirmity or illegality in the orders passed by the two courts below. Reference may also be made to Bishambar v. Radha Kishunji, AIR 1931 All 557, wherein in somewhat similar situation, it was held,--

'Where the parties to a case agree that a particular be appointed referee, the case be decided in accordance with the statement which he may make in court without any oath being administered to him or send it, in writing, and that they shall accept and agree to it and that they did not wish to produce any other evidence, such agreement does not amount to an adjustment but only amounts to agreement on a procedure which might eventuate in an adjustment and it is open to a party to resile from the agreement before the statement has been made by the pleader and action taken by the Court on that statement.'

In the present case, the parties have been fighting this litigation since long and they appointed Dr. S. S. Jain as a referee of their own choice. Simply because the decision given by the referee did not fined favour with the plaintiff, be could not be allowed to wriggle out of the same by alleging that Dr. S. S. Jain was appointed not as a referee, but as an arbitrator. At the most, if at all, the plaintiff could resile from the agreement before the decision was given by the referee. He could not challenge the same afterwards by way of filing objections.

9. For the reasons recorded above, this appeal fails and is dismissed with costs.

10. Appeal dismissed.


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