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Madan Mohan Gargh v. Munna Lal
Factual and Procedural Background
This matter concerns an application to transfer three suits then pending before the Additional Subordinate Judge of Agra. The suits related to adjoining houses originally in common ownership. Two suits were brought by the respondents in 1927 in the Court of the Munsif of Agra, and while they were pending the applicant, Madan Mohan Gargh, filed another suit (No. 5 of 1923) in the Court of the Subordinate Judge of Agra concerning the same properties. The three suits were later directed to be tried together by the Additional Subordinate Judge of Agra.
On 14 February 1928, during the hearing (after one witness had been examined or during the examination), the parties recorded an agreement on the court file that the Court might inspect the locality and "give any decision which may be deemed proper" after inspection, that they would not produce oral evidence and would not rely on documentary evidence except as the Court might desire to inspect papers, and that they would have no objection to the decision. The Additional Subordinate Judge agreed to act on this record, inspected the premises, called for certain documents and heard legal arguments. The suits were set down for judgment on 16 February; before judgment was delivered the applicant sought a postponement to apply to this Court for transfer to another judge. The Additional Subordinate Judge granted a postponement, sealed the written judgment to await the outcome of the transfer application, and the present application for transfer was brought to this Court.
The matter was certified by Dalal, J. to be heard by a Bench of two Judges.
Legal Issues Presented
- Whether an application to transfer the suits from the Additional Subordinate Judge lies where the parties had entered into an agreement on the record authorising the Judge to inspect the locality and decide the matters without further oral evidence or reliance on documents.
- Whether the 14 February 1928 agreement amounted to a compromise binding the parties and precluding transfer of the suits to another Court.
- Whether the agreement could be construed as appointing the Judicial Officer (the Additional Subordinate Judge) as an arbitrator and, if so, whether the absence of Government permission (admitted) would render the Judge's act unlawful such that this Court should transfer the suits.
Arguments of the Parties
Applicant (Madan Mohan Gargh)
- The applicant challenged certain actions of the Additional Subordinate Judge and sought transfer of the cases to another Judge.
- It was contended on the applicant's behalf that the arrangement (the 14 February agreement) might be interpreted as appointing the Additional Subordinate Judge as an arbitrator; since no Government permission for a Judicial Officer to act as arbitrator had been obtained, the Judicial Officer could not lawfully act as arbitrator and this Court would therefore have jurisdiction to transfer the suits.
Opposite Party / Respondents
- The respondents argued that the 14 February 1928 application was in the nature of a compromise, and consequently the suits must be decided in accordance with the terms of that compromise and could not be transferred to any other Court.
- The respondents relied on a Bench ruling, cited in the opinion as Sita Ram v. Piari Lal (A.I.R 1925 All. 558), in support of the proposition that the compromise should be binding.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sita Ram v. Piari Lal . A.I.R 1925 All. 558 | Invoked by the respondents to support the view that the parties' agreement (compromise) should be treated as binding and prevent transfer. | The Court considered the authority as cited by the respondents but later relied on other authorities to assess whether the judge's conduct justified transfer; the decision did not lead the Court to order transfer. |
| Burgess v. Morton. [1896] A.C 136 | The House of Lords held that where, with the acquiescence of both parties, a Judge departs from ordinary procedure and decides a question of fact, the parties cannot afterwards treat the matter as if it had been heard in the ordinary course and thereby repudiate that decision. | The Court relied on this principle to support the conclusion that the parties could not repudiate the on-record agreement after the Judge had acted upon it. |
| White v. Duke of Buccleuch. [1847] 1 H.L Scotch 70 | Similar rule from the House of Lords concerning the competence of a judge deciding facts by a method other than the ordinary procedure when parties acquiesce. | Used by the Court to show that it is not improper for a Judge to try a question of fact by other methods when parties request it; supports upholding the Judge's conduct here. |
| Himanchal Singh v. Jatwar Singh . A.I.R 1924 All. 570 | Cited as a case in which the propriety of a Judge deciding by an alternative method was not questioned. | Referenced to show prior instances where similar proceedings were not treated as improper; contributed to the Court's conclusion against transfer. |
| Ram Sunder Misra v. Jai Karan Singh . A.I.R 1925 All. 271 | Cited alongside other authorities for the proposition that a Judge may try questions by methods other than those prescribed when parties consent. | Considered by the Court in forming its view that the Additional Subordinate Judge's conduct did not justify taking the trials away from him. |
| Sita Ram v. Piare Lal. [1876] 1 Q.B.D 423 | Another cited authority with facts resembling the present case; cited to show precedent for the practice of a Judge deciding on facts after inspection/alternative procedure. | Used by the Court to demonstrate that similar conduct had been treated as proper and did not require transfer of proceedings. |
| Bustros v. White | Relates to discovery of documents; held that where, at the desire of both parties, a Judge looks into documents to avoid delay and decides whether they ought to be produced, that practice is permissible but the parties cannot later question the Judge's decision in appeal. | The Court relied on this authority to support the position that the Additional Subordinate Judge calling for and inspecting documents at the parties' agreement did not render his decision open to being nullified by a subsequent transfer application. |
Court's Reasoning and Analysis
The Court first addressed the contention that departmental Government regulations (forbidding officials from acting as arbitrators without permission) affected the present case. The Bench held these regulations to be departmental rules enforceable by superior officers and not rules of civil procedure; hence they should not influence the Court's decision on transfer jurisdiction.
The Court then examined the material facts: three related suits had been ordered to be tried together; on 14 February the parties put on record an agreement authorising the Court to inspect the locality and to "give any decision" deemed proper, and stating the parties would not produce oral evidence and would not rely on documentary evidence except as the Court might inspect. The Additional Subordinate Judge accepted the agreement, inspected the premises, called for documents, heard legal argument (including on res judicata and limitation), and prepared a judgment which he sealed pending the transfer application.
Applying precedent, the Court cited Burgess v. Morton and White v. Duke of Buccleuch for the principle that where parties acquiesce in a judge departing from ordinary procedure and deciding facts by alternative means, they cannot later repudiate that procedure to assert an alternative mode of trial. The Court also relied on Bustros v. White to support the permissibility of a Judge looking into documents at the parties' request and that such practice precludes later questioning of the Judge's decision in appellate proceedings.
On that basis the Bench concluded the Additional Subordinate Judge's conduct—inspecting the premises, calling for documents and deciding to proceed on the basis of the parties' agreement—was not of a kind that would justify removing the trials from his hands. The Court also observed that allowing the transfer would permit the applicant to "by a side wind" repudiate the agreement entered into on the record.
Holding and Implications
Holding: Application dismissed.
Direct effect: The application to transfer the three suits from the Additional Subordinate Judge of Agra was dismissed and the trials remain with that Judge. Costs were awarded against the applicant (the application was dismissed with costs).
Broader implication: The Court treated departmental regulations about officials acting as arbitrators as not constituting procedural rules for civil trials and declined to allow such departmental considerations to justify transfer. The decision reaffirms that, where parties consent and a Judge acts in accordance with that consent (including inspection and deciding facts by alternative procedure), parties cannot later repudiate the agreement to seek a different mode of trial. The opinion does not purport to establish a novel legal principle beyond applying existing authorities.
Dalal, J.:— 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. 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 difficulty, 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
3. 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.
4. 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 Courts 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 suits out of his hands and sending them to another Judge for trial.
5. The facts of the case, so far as they are material, are these. A house owned by the applicant, 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 the Munsif of Agra in 1927 and while they were pending the applicant brought another suit, No. 5 of 1923, 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 easement, etc.
6. The three suits were subsequently transferred to the Additional Subordinate Judge of Agra with a direction that they should be tried together.
7. 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.
8. 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.
9. 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.
10. 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. Each 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 O. 18, R. 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. So far as the selection of documentary evidence is concerned, the case of Bustros v. White, 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 Judge, and the judgment of the Court was delivered by Jessel, M.R 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.
11. 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.
R.K
12. Application dismissed.
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