Allahabad High Court
Madan Mohan Gargh vs Munna Lal And Ors. on 25 April, 1928
Equivalent citations: AIR1928ALL497, AIR 1928 ALLAHABAD 497
ORDER Dalal, J.
1. I certify this to be an application which shall be heard by a Bench of two Judges.
2. This is an application for transfer of a certain suit from the Court of the Additional Subordinate Judge of Agra. On 14th February 1928 the parties put in a petition before the Judge of that Court to the effect that the Court may pass any decision it liked after inspecting the locality in the presence of parties and their pleaders. Subsequently the plaintiff Madan Mohan Gargh was dissatisfied with certain actions taken by the Additional Subordinate Judge, and applied to this Court for transfer of the case. The question is whether such an application can lie. It is argued on behalf of the opposite party that the application of 14th February 1928 was in the nature of a compromise, and, therefore, the suit must be decided in accordance with the terms of the compromise, and cannot be transferred to any other Court. A Bench ruling of Sita Ram v. Piari Lal A.I.R. 1925 All. 558 was quoted.
3. If the application is a compromise, the argument will be sound. On the other hand, the arrangement may be interpreted into one under which the Additional Subordinate Judge was appointed an arbitrator. In that case as no permission of Government was obtained the Judicial Officer cannot act as an arbitrator, and this Court will have jurisdiction to transfer the suit from his Court if this Court liked to do so. The question is not free from difficult, and personally I am not in favour of Courts accepting an agreement of parties leaving the matter entirely to the Court's discretion. The record of the suit shall also be sent for.
JUDGMENT
4. This is an application to have three suits now pending before the Additional Subordinate Judge of Agra transferred to another Court. It has been sent to us for hearing by the Judge (Dalal, J.), before whom it originally came, his reason being that on one view of the case the Additional Subordinate Judge might be held to have consented to act, and to be acting, as an arbitrator between the parties, and to have thereby contravened certain Government regulations by which officials are forbidden to act as arbitrators without having first obtained permission from Government. It is admitted that no such permission was obtained in the present case.
5. We may say at once that, in our opinion, the existence of these regulations should not influence us in deciding this case. They are departmental regulations for the breach of which (if there has been a breach), the Judge can be taken to task by his superior officers; but the regulations do not constitute a rule of procedure applying to the trial of suits in the civil Court of these provinces. We therefore, have to see whether there is anything in the conduct of the Additional Subordinate Judge which would justify us in taking the trial of these three suit out of his hands and sending them to another Judge for trial.
6. The facts of the case, so far as they are material, are these. A house owned by the applicants and another owned by the respondents adjoin, and were originally in the same ownership. Two suits relating to these houses were brought by the respondents against the applicant in the court of Munsif of Agra in 1927 and while they were pending the applicant brought another suit, No. 5 of 1928, against the respondents in the Court of the Subordinate Judge of Agra. This suit also related to the same two houses, and, according to the applicant's affidavit, was brought to check the opposite party from unauthorized encroachments and also to save the applicant's rights of casement, etc.
7. The three suits were subsequently transferred to the Additional Subordinate Judge of Agra with a direction that they should be tried together.
8. When they came up for hearing on. 14th February of the present year, after one witness for the applicant had been examined, or during the examination of that witness, the parties entered into the following agreement, which was executed by them and placed on the record of the Court:
The Court may now make an inspection of the locality in the presence of the parties and their pleaders and give any decision which may be deemed proper by seeing its condition. The parties are not willing to produce any oral evidence, nor do they rely on documentary evidence produced by them. If the Court desires, it may inspect any papers for decision of this case. The parties will have no objection whatsoever to the said decision.
9. The learned Additional Subordinate Judge consented to act on this agreement. He inspected the premises and called for certain documents. On the following day i.e., 15th February, he heard arguments on certain points of law including questions of res judicata and of limitation. After this the suits were set down for judgment on 16th, But before judgment was delivered the applicant, on 17th, applied for a postponement to enable him to apply to this Court to have the cases transferred to another Judge. The Additional Subordinate Judge granted this postponement on certain terms, and, without delivering judgment, placed the judgment which he had written in a sealed cover to await the result of this application for transfer.
10. In Burgess v. Morton [1896] A.C. 136, at p. 138, Lord Halsbury, L. C, said:
It has been held in this House that where with the acquiescence of both parties a Judge departs from the ordinary course of procedure and, as in this case, decides upon a question of fact, it is incompetent for the parties afterwards to assume that they have then an alternative mode of proceeding, and to treat the matter as if it had been heard in due course.
11. The same rule has been laid down by the House of Lords in White v. Duke of Buccleuch [1847] 1 H.L. (Scotch) 70, and several other cases, laying down the law in the same way, are referred to in the judgment of Lord Watson. In none of these cases, did the House of Lords say anything to suggest that it is improper for a Judge to try a question of fact by some method other than that prescribed by the law governing his Court, if the parties request him to do so. Nor was the propriety of such a course questioned in Himanchal Singh v. Jatwar Singh A.I.R. 1924 All. 570, or in Ram Sunder Misra v. Jai Karan Singh A.I.R. 1925 All. 271 or in Sita Ram v. Piare Lal [1876] 1 Q.B.D. 423. Bach of these three cases was tried by a Bench of two Judges, and the facts of the last of them closely resemble those of the present case. In the case before us the learned Additional Subordinate Judge was entitled to inspect the premises if he wished to do so: (see Order 18, Rule 18); and the situation, so far as the inspection of the premises is concerned, is much what it would have been if the parties had invited the Judge to inspect the premises, and, after he had done so, had told him that they did not propose to call any evidence concerning the situation and condition of the premises, but left questions of fact to be decided by him on the basis of his own observations.
12. So far as the selection of documentary evidence is concerned, the case of Bustros v. White (6), seems to us to be in point. That case related to discovery of documents. It was decided by a Court of appeal consisting of eight Judges, and the judgment of the Court was delivered by Jessel, M.B. At the end of his judgment, at p. 427, the Master of the Bolls says:
We are not willing to part with this case without saying a word or two as to the practice which has hitherto prevailed in Chambers in cases where affidavits have been produced to a Judge which appeared to be defective; and where, at the desire of both parties, and with a view of avoiding the delay and expense which might be occasioned by allowing the matter to stand over for the production of a further affidavit the Judge has taken upon himself the trouble and responsibility of looking into the documents and deciding whether they ought to be produced. We do not desire to put a stop to that practice, but we think it should be known that where that practice is adopted, it is not competent to either party afterwards to question the decision of the Judge in a Court of appeal.
13. We, therefore, think that the conduct of the Additional Subordinate Judge has not been of a kind which would justify us in taking the trial of these suits out of his hands, and we also think that on an application of this kind we ought not to take a course which would enable the applicant by a side wind to repudiate the agreement which he made with the respondents. The application is dismissed with costs.