1. In the suit out of which this Rule arises, the plaintiff's case was that he gave the defendant a certain amount of metal with which to prepare ornaments. He sued for the recovery of the metal, damages and the money advanced. When the case was heard, a petition was put in by both parties which runs as follows: 'It has been settled between the parties that this matter be enquired into by some Pleader who may be sent to the defendants' house, the boundaries of which are given below, so that he may see whether the defendants do the work of casting and whether bellows or signs of furnace or bellows are found in the said house. In case the aforesaid things or their signs are found to exist, a decree shall be given in favour of the plaintiffs, and in case of the said things being found not to exist, the suit shall be dismissed. The parties shall have no objection. For this reason we are sending Babu Jagat Prosanno Pleader.'
2. For this reason, Babu Jagat Prosanno Mookerjee, Pleader, went to the house and found that the things did exist. But the learned Subordinate Judge did not decide the case in accordance with the agreement, on the ground apparently that the defendant retracted his consent, and proceeded to dispose of the suit on the merits.
3. The plaintiff has obtained this Rule on the opposite party to show cause why this order should not be set aside on the ground, firstly, that the Court below ought to have held that the petition of the 7th September 1914 was an adjustment of the suit and, secondly, that the Court below was in error in allowing the defendant to withdraw from the agreement.
4. It appears to me that the Rule should be made absolute.
5. It has been held that an agreement to refer a dispute to arbitration does not come within the scope of Section 375, now Order XXIII, Rule 3. This was held by an Appellate Bench in Tincowry Dey v. Fakir Chand Dey 30 C. 218 : 7 C.W.N. 180, although the opposite view has been taken in Pragdas Sagurmall v. Girdhardas Mathuradas 26 B. 76 : 3 Bom. L.R. 431. But it seems to me that the agreement made in this suit comes far more closely within the terms of Order XXIII, Rule 3, than an agreement to refer to arbitration. When the parties agree to refer a dispute to arbitration, there is still a great deal of judicial work to be done: evidence has to be considered and weighed and a judicial opinion arrived at. it may well be held that such an agreement does not finally dispose of the suit. But here we find that the parties agreed that the case should be finally disposed of in one way if a simple fact was found to exist, and in another way if it was found not to exist; no further judicial action was necessary. It would, I think, be unnecessary and unjust to hold that such an agreement cannot be enforced; and if such an agreement is held to be capable of enforcement, it clearly would be unreasonable to hold that the losing party should be entitled to repudiate it after the fact on which it depended, had been ascertained.
6. The learned Pleader for the opposite party has relied on the case of Muhammad Zahur v. Gheda Lal 14 A. 141 : A.W.N. (1892) 3. But in that case the agreement was of a very curious character. The parties did not agree that the suit should be disposed of in accordance with what was found as a matter of fact to exist, but merely that if a certain bond was produced, the plaintiff's testimony should be discredited to that extent; and if it was not produced, another witness should be discredited to that extent. The case could not, therefore, have been disposed of on that agreement.
7. An affidavit has been put in, in which it is stated that the defendant paid to the plaintiff all expenses of taking the Pleader Babu Jagat Prosanno Mookerjee to the spot, and that, thereupon, the plaintiff waived his objection to the suit being proceeded with. This argument made a great impression on us, but its effect has been entirely destroyed by the fact that the defendants have been given a decree for this sum of money. If, therefore, it is supposed that the plaintiffs waived their objection to the suit being proceeded with on being paid the costs of the investigation, they cannot now be debarred from attacking the decision when they have been held liable for the re-payment of that money.
8. The only objection that was taken to the Pleader's inspection was that he examined the wrong hut. The Pleader was called and gave evidence that the defendant admitted that it was the right hut. He was not cross-examined on that point. We need not, therefore, remand the case for the investigation of this trifling matter of fact. In our opinion, the Court should have acted on the agreement and should not have allowed the losing party to resile from it.
9. The Rule is accordingly made absolute, the suit will be decreed in accordance with the petition of the 7th September and the plaintiff will be entitled to his costs of both Courts. We assess the hearing fee at two gold mohurs.
10. I agree.