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Musammat Masita Bibi v. Khuda Baksh
Factual and Procedural Background
This appeal arises from a suit filed by the plaintiff seeking possession of land by demolition of certain constructions made by the defendant. The defendant denied the plaintiff's title, and the main issues were questions of fact. Both the trial and lower appellate courts dismissed the plaintiff's claim on merits. The plaintiff did not challenge the merits decision in the second appeal but contended that the lower Appellate Court erred in disregarding an agreement between the parties made on 14th September 1920 to abide by the statement of Muhammad Hadi Hasan, Mukhtar. The defendant subsequently withdrew from this agreement, leading the lower Appellate Court to dispose of the appeal on merits.
Legal Issues Presented
- Whether the agreement between the parties to abide by the statement of Muhammad Hadi Hasan, Mukhtar, amounted to a valid arbitration agreement depriving the court of jurisdiction?
- Whether the lower Appellate Court was justified in allowing the defendant to withdraw from the agreement and dispose of the appeal on merits?
- Whether Section 9 of the Oaths Act applied to the agreement and if the court had discretion to refuse to refer the matter to the referee?
- Whether the defendant's agent (vakil) had authority to bind the plaintiff to the agreement under Section 9 of the Oaths Act?
Arguments of the Parties
Appellant's Arguments
- The agreement dated 14th September 1920 to abide by the statement of Muhammad Hadi Hasan, Mukhtar, was effectively an arbitration agreement, which the lower Appellate Court should have honored.
- The defendant should not have been permitted to withdraw from this agreement arbitrarily, especially since no evidence was produced to show collusion between the referee and the plaintiff.
- Reliance was placed on the case of Chhiddu v. Kuar Sen, which held that parties should not be allowed to withdraw from such references without good cause.
Respondent's Arguments
- The agreement did not constitute a formal arbitration agreement as per the Civil Procedure Code, since no written application or official reference was made to the court.
- The defendant withdrew from the agreement upon discovering collusion between the referee and the plaintiff.
- The vakil representing the plaintiff had authority to bind the plaintiff to the agreement, but the court had discretion under Section 9 of the Oaths Act to refuse the reference.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chhiddu v. Kuar Sen 29 A. 49 : 3 A.L.J. 654 : A.W.N. (1906) 280 | Parties to a suit should not be allowed arbitrarily to withdraw from a reference to a referee, especially without evidence of collusion. | The Court distinguished this case on the basis that in the present matter no statement was recorded by the court and the appeal was disposed on merits; hence, the Court found no illegality or lack of jurisdiction. |
| Wasi-ul-Zaman Khan v. Faiza Bibi 32 Ind. Cas. 348 : 38 A. 131 : 14 A.L.J. 88 | Authority of a party's agent (vakil) to bind the party by agreement under Section 9 of the Oaths Act. | The Court held that the vakalatnama granted sufficient authority to the vakil to bind the plaintiff, and the actions of the vakil were binding on the plaintiff. |
Court's Reasoning and Analysis
The Court analyzed the nature of the agreement dated 14th September 1920 and found it did not constitute a formal arbitration agreement under the Civil Procedure Code, as no written application or formal reference was made to the court. The parties had only agreed to abide by the statement of Muhammad Hadi Hasan, Mukhtar, but not to refer the dispute to him as an arbitrator. Consequently, the Court held that the lower Appellate Court retained jurisdiction to hear the appeal on merits.
Regarding the applicability of Section 9 of the Oaths Act, the Court observed that it was not clear if the parties agreed to be bound by the statement on oath or solemn affirmation. Since Section 9 is discretionary and not mandatory, the Court found that the lower Appellate Court was entitled to refuse the reference and proceed with the appeal on merits, especially given the defendant's prompt withdrawal from the agreement and lack of insistence by the appellant on the reference.
The Court further considered the authority of the vakil, concluding that the vakalatnama conferred sufficient power on the vakil to bind the plaintiff, aligning with precedent. Ultimately, the Court found no illegality or lack of jurisdiction in the lower Appellate Court's disposal of the appeal on merits and refused to disturb its decree.
Holding and Implications
The appeal is dismissed with costs.
The Court upheld the decision of the lower Appellate Court, confirming its jurisdiction to dispose of the appeal on merits despite the prior informal agreement to abide by the statement of Muhammad Hadi Hasan, Mukhtar. The ruling clarifies that informal agreements to abide by a statement do not amount to arbitration agreements unless formal procedures under the Civil Procedure Code are complied with. The Court also affirmed the discretionary power under Section 9 of the Oaths Act to refuse references in certain circumstances. No new precedent was established beyond the direct effect of affirming the lower court's decision in this case.
1. This is a plaintiff's appeal arising out of a suit for possession of some land by demolition of certain constructions made by the defendant. The defendant had denied the plaintiff's title and the main issues raised in the case were questions of fact. Both the Courts below have dismissed the plaintiff's claim. So far as the decision on the merits is concerned, it is not challenged in second appeal before me and ground No. 3, taken in respect to the vague decision to which the finding has been arrived at, has not been pressed. The only point that has been strongly contended before me was that, in view of the agreement arrived at between the parties on the 14th of September, 1920, under which they had agreed to abide by the statement of one Muhammad Hadi Hasan, the lower Appellate Court was not justified in going behind that agreement and disposing of the appeal on the merits.
2. It appears that, on the 14th of September 1920, when the learned Judge of the Small Cause Court went to make a local inspection, a statement was made before him by the defendant-respondent on the one side and by the vakil as well as the husband of the plaintiff-appellant on the other, to the effect that the ease should be decided in accordance with what Muhammad Hadi Hasan, Mukhtar, had stated. On that date, however, no proceeding was recorded by the learned Judge of the small Cause Court. Next day on the 15th of September, 1920, an application was presented by the defendant to the Court to the effect that, although he had agreed to the decision of the case being left on the statement of Mahammad Hadi Hasan, Mukhtar, the day before, yet inasmuch as he had come to know that the said witness was under the influence and in collusion with the plaintiff he withdrew from the agreement. On this application the learned Judge of the Small Cause Court passed an order that, inasmuch as the defendant-respondent was not willing to abide by the statement of Muhammad Hadi Hasan, Mukhtar, the case should be put up for disposal. After this, the appeal was argued on both sides and disposed of on the merits.
3. The point raised on behalf of the plaintiff-appellant is that the lower Appellate Court should not have allowed the defendant to withdraw from his previous agreement. It is first contended this agreement amounted to an agreement to refer the matter in dispute to an arbitration. This, in my opinion, is not correct. In the first place, from the way in which the agreement is entered in the Robkar of the Court and the application of the defendant dated the 15th of September 1920, it appears that the parties had agreed to abide by the statement of Muhammad Hadi Hasan, Mukhtar, and not that they had agreed to refer the matter in dispute for decision by Muhammad Hadi Hasan, Mukhtar. Further more, no application in writing showing the agreement to refer the matter in dispute was ever filed in Court, nor did the defendant ever apply to the Court to refer the matter to Muhammad Hadi Hasan, Mukhtar. The provisions of Section 1 Sub-clauses (1) and (2) of Schedule II of the Civil Procedure Code were, therefore, not complied with. I am, therefore of opinion that there was not a reference to arbitiation by Muhammad Hadi Hasan, Mukhtar, and accordingly the Court was not deprived of its jurisdiction to hear the appeal. It is next contended that, even if it be not a reference to arbitration, the case fell under Section 9 of the Oaths Act and strong reliance was placed on the case of Chhiddu v. Kuar Sen 29 A. 49 : 3 A.L.J. 654 : A.W.N. (1906) 280, where it was pointed out by Aikman, J., that when a party to a suit has made a reference of this kind he should not be allowed arbitrarily to withdraw himself from the reference, specially when that party produced no evidence whatsoever to support the allegation that the referee had colluded with the opposite party.
4. There are, it appears to me, many difficulties in the way of the appellant. First of all, it is not clear that the agreement between the parties was that they would abide by Muhammad Hadi Hasan's statement on oath or solemn affirmation." Neither the Robkar nor the application of the defendant mentions this. If they agreed merely to abide by the statement of this referee even though not on oath or solemn affirmation then neither Section 8, nor Section 9, of the Oaths Act would be applicable. Section 9 is by no means mandatory and it seems that, under certain special circumstances, the Court may have discretion to refuse to refer the matter to the referee. The way in which Section 9 is worded is significant, and it says that if any party offers to be bound by any such oath or solemn affirmation the Court may if it thinks fit ask such party or witness, etc. It seems to me, therefore, that it was open to the lower Appellate Court, if it was satisfied that there was sufficient reason for it, to refuse to refer the matter to the referee. In the present case, inasmuch as no judicial proceeding had been recorded, it might very well have been that the so-called agreement was an informal talk not reduced to writing, and, in any case, from the fact that the respondent had the very next day withdrawn from the agreement and revoked it, I am unable to say that the Court was wrong in exercising its discretion and in ordering that the appeal should be disposed of on the merits. The conduct of the appellant herself also shows that she did not insist that the matter should necessarily be referred to a referee. No application was made on her behalf pressing the Court to refer the matter to the witness, nor is there any reference in the judgment which would go to show that any objection was taken on her behalf at the time of the argument.
5. The case of Chhiddu v. Kuar Sen 29 A. 49 : 3 A.L.J. 654 : A.W.N. (1906) 280, and the previous cases referred to therein, are all oases in which the Court had got the statement of the referee actually recorded and disposed of the case in accordance with it. The present case, however, stands on a different footing. Here the Court itself did not get the statement recorded but has disposed of the appeal on the merits. The question, therefore, is whether the Court had jurisdiction to proceed in the way in which it has done, or whether its procedure was illegal or improper. I am unable to say that the Court either had no jurisdiction or that it had acted in an improper manner.
6. On behalf of the respondent it was also urged that there was no person duly authorised who could agree to this reference on behalf of the plaintiff and that it is only the party and not her agent who can agree to a reference under Section 9 of the Oaths Act. I am, however, of opinion that the vakalatnama executed by the plaintiff gave sufficient authority to the vakil to proceed with the case in any way he liked, and that, whatever he did in the case, was accepted as binding on the plaintiff. The case is similar to that of Wasi-ul-Zaman Khan v, Faiza Bibi 32 Ind. Cas. 348 : 38 A. 131 : 14 A.L.J. 88 which is also an authority for the contention that a party's agent may bind the party by an agreement under Section 9 as much as a party herself. For the reasons given, however, I am of opinion that the decree of the lower Appellate Court cannot be disturbed in second appeal.
7. The result is that this appeal fails and is hereby dismissed with costs including in this Court fees on the higher scale.
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