1. This is an appeal by the plaintiff, who sued to recover money due on a promissory note. The finding of the trial Court was that the pro-note was not genuine. That finding has been upheld by the lower Appellate Court.
2. This litigation was started in 1927 and there was an attempt to settle the matter by reference to arbitration through Court. A member of the Bar--The Government Pleader, I believe--was appointed Arbitrator and recorded the evidence of certain witnesses on oath who were examined and cross-examined by Counsel. A full record was made of the evidence given by the witnesses. The depositions were read out to the witnesses and have been signed by them in token of the correctness. When the arbitration proceedings came to an end, the suit by the consent of the parties was taken up at the stage it had reached before the arbitrator. The evidence of the witnesses taken before the arbitrators was read as evidence before the Court and three defence witnesses were examined. When the suit had gone against the plaintiff at the trial Court, he took the point in appeal that the admission of this evidence was incompetent and demanded that there should be a re-trial. I may say that all the witnesses for the plaintiff and one witness for the defence had been examined before the arbitrator. The same point as was taken before the lower Appellate Court has now been taken before me. It is admitted that the point is a techincal one and there are no merits attached to it. No complaint is made as to the manner in which the evidence was recorded or as to the correctness of the record. It is merely urged that the reception by the Court of this evidence was incompetent. I think the short point might be taken that it was the duty of the plaintiff to have put before the Court admissible relevant evidence in support of his claim and if he failed to do so, it was the duty of the Court to dismiss the claim and the plaintiff has no right to demand a rehearing on the ground that evidence that he did place before the Court was inadmissible.
3. The leading authority on the point is Jainab Bibi Saheba v. Hyderally Sahib : (1920)38MLJ532 which held that the evidence recorded in a previous judicial proceeding between the same parties, is made admissible in a subsequent proceeding by the consent of both parties and this decision which is that of a Full Bench overruled the decision in Ponnuswami Pillai v. Singaram Pillai 46 Ind Cas. 849 : 41 M 731 : 31 M L T 521 : (1918) M W N 768. That was a decision dealing with the admission of evidence recorded by a Sub-Registrar under Section 77 of the Registration Act and the basis for that decision was Section 195 of the Evidence Act which provides that the judgment of a Court must be based on facts declared by the Act to be relevant and duly proved. Coutts-Trotter J. in Jainab Bibi Saheba v. Hyderally Sahib : (1920)38MLJ532 pointed out a distinction between admitting irrelevant evidence and defective method of letting in evidence in itself relevant and the view of the Pull Bench was that though consent might not avail for the admission of evidence in itself irrelevant, relevant evidence might be admitted by consent although the Evidence Act might not itself provide for such admission. Section 33 of the Evidence Act provides for the admission without consent of parties of former statements made by a witness in a judicial proceeding or before any person authorised by law to take it. It is contended here that this section does not apply nor is its principle applicable. I agree that this section does not apply as the conditions which make the section operative do not exist. Sarkar in his Commentary at page 266 (Sarkar's Law of Evidence in British India, 4th Edition) takes the view that an arbitrator is a person authorised by law to take evidence under Section 4 of the Indian Oaths Act. I do not consider it necessary to decide whether an arbitrator is such a person or whether statements of witnesses recorded by him are admissible under Section 33 of the Evidence Act without the consent of parties, but I am clear that where an arbitrator has in this case recorded evidence with all due formality, it is open to the parties by consent to take such statement as evidence, as the consent relates to the manner in which the evidence shall be proved and not to the relevance of the evidence itself.
4. I therefore hold that the evidence was rightly received by the District Munsif.
5. In the result the appeal fails and is dismissed with costs.