1. The Court is asked by petitioner, the plaintiff, to exercise its powers of revision by setting aside an order under Section 15, Sch. 2 of the CPC. The petition is presented under Section 115, (c) of the CPC and Section 15 of the Charter Act. Nagaraja Pillai Vythinatha Iyer(1) has been cited with regard to the latter; but I do not think that the reference to the Act extends the Court's powers in any material way in the present case. No doubt the occurrence of mere errors of fact or law in an order can not justify interference with it: Amir Hassan Khan v. Sheo Bakhsh Singh(2) and Kali Charan Sirdar v. Sarat Chunder Chowdhry(3). But, as was held in Kristamma Naidu v. Chapa Naidu(4), the case contemplated is that of a perverse decision on law or procedure, a decision being perverse where it is a conscious deviation from some rule of aw or procedure and conceive that the test of perversity will be applicable also, when the error is of fact and the decision has been reached in defiance of facts which have been recognized by the lower Court as established or must be presumed to have been so or when the decision is based on or involves material assumptions or inferences which there is nothing in fact or probability to support.
2. The first objection taken to the order is one of law that the parties having agreed in Ex. A to a particular distribution of the properties in dispute, the award should have been accepted so far as it is in accordance with that agreement.
3. Here there is no question of perversity. For the lower Court's action in rejecting the award as a whole was perfectly correct, since the agreement in Ex. A was clearly conditional on a valid award being made.
4. Of the conclusions on which the lower Court based its order, two at least seem to me unassailable in revision and to afford sufficient justification for its decision. Firstly, it held that the arbitrator was guilty of misconduct in acting on Ex. E series, abstracts of accounts, as though they had been produced by and bound respondents, when they were really produce 1 by some person in plaintiff's interest, probably one Tharavanar, after the date of Ex. B when the filing of documents closed. The arbitrator's evidence makes it clear that he did in fact proceed on Ex. E series without any sufficient independent verification of items, and the lower Court was entitled to assume that he did so under the impression stated in his evidence, that the respondents filed them. The reasons it gave for holding this untrue and for its other conclusions mentioned above are largely based on inference and probability. But they cannot be treated as perverse on that account. Secondly, there is a finding that Ex. JJ was produced by petitioner after the date of E. B and that its acceptance by the arbitrator amounted to misconduct. No doubt the argument for an earlier date, based here on Ex. C, is strong. But it is not alleged that this argument was put forward in the lower Court; and if it was not the date of the court-fee label and the other facts referred to in the order afforded a legitimate basis for the conclusion reached.
5. It is argued that the lower Court's treatment of these portions of the case cannot be considered fairly apart from the remainder of its order and the disposition to decide against the petitioner in any event evinced therein. It is true that elsewhere in its order it was guilty of inconsequence and of failure to apply the law as it stated it which would have justified criticism and might even have been described as perverse, if other grounds for a decision had not been available. But the two findings I have specified, especially that regarding E. JJ. rest mainly on independent reasoning, in which the acceptance of other more objectionable portions of the judgment is not involved. My conclusion is therefore that they must stand. It is not disputed that they justify the order made.
6. The petition is therefore dismissed with costs.
S.N/R.K
7. Petition dismissed.