John Edge, Kt., C.J.
1. The question which we have had to consider in this reference to the Full Bench is--when an application is made to a Court under Section 525 of Act No XIY of 1882, that an award be filed in Court, does an objection by the other party, defendant, that he had not agreed to refer any matter to arbitration oust the jurisdiction of the Court to which the application, is made to proceed farther in the matter, or has that Court jurisdiction to proceed, and should it proceed to try the issue as to whether the parties had referred to arbitration the matter as to which the award purports to have bees made
2. In support of the contention that such an objection deprives the Court of jurisdiction, Bijadhur Bhugut v. Monohur Bhugut I.L.R. 10 Cal. 11, and the judgments of Prinsep, Pigot and Macpherson, JJ., in Surjan Raot v. Bhikari Raot I.L.R. 21 Cal. 213, were relied upon. In support of a contention raised before us that when such an objection is not obviously frivolous the jurisdiction of the Court to proceed is ousted, Samal Nathu v. Jaishankar Dalsukram I.L.R. 9 Bom. 254, and Venkatesh Khando v. Chanapgavda I.L.R. 17 Bom. 674, were relied upon. In further support of those contentions it was argued that we ought to conclude that the Legislature, in order to give effect to the views expressed in the judgment of Lock, Kemp, and Paul, JJ., in Lalla Ishri Parshad v. Har Bhanjan Tewaree 15 W.R. (F.B.) 9, and in the judgment of Spankie, J., in Hussaini Bibi v. Mohsin Khan I.L.R. 1 All. 156, which were that a Court had no jurisdiction under Section 327 of Act No. VIII of 1859 to file an award where one of the parties denied or did not admit that he had referred any dispute to arbitration or that an award had been made, had introduced Section 526 into Act No. X of 1877, and had re-enacted that section in Act No. XIV of 1882. As to the latter contention, it was much more probable that the Legislature in enacting Section 526 of Act No. X of 1877 had acted on the suggestion thrown out by their Lordships of the Privy Council in Chowdhri Murtaza Hossein v. Mussumat Bibi Bechunnissa L.R. 3 I.A. 209 at p. 213, and that the intention was to widen the scope of the inquiry upon which a court could enter on an application to file an award when the reference to arbitration had been made without the intervention of a Court of justice. Their Lordships in that case, referring to Act No. VIII of 1859, had said: 'Their Lordships are of opinion that upon the construction of the Act the earlier sections are not incorporated into the Section 327, as they are expressly incorporated into the Section 326, and that the words 'sufficient cause' should be taken to comprehend any substantial objection which appears upon the face of the award or is founded on the misconduct of the arbitrator or on any miscarriage in the course of the proceedings, or upon any other ground which would be considered fatal to an award on an application to the Courts in this country ' It may be noticed that Norman, C.J., and Jackson, J., in Lall Isharee Parshad v. Har Bhanjan Tewaree 15 W.R. (F.B.) 9, apparently considered that a Court could, under Section 327 of Act No. VIII of 1859, go into the question and decide, but subject to a right of appeal, that the parties had referred the matter in dispute to arbitration and that an award on such matter had been made. As the decision of their Lordships of the Privy Council in Chowdhri Murtaza Hossein v. Mussumat Bibi Bechunnissa L.R. 3 I.A. 209, was reported in the volume of the Law Reports, Indian Appeals, which was published in 1876, and as Sections 525 and 526 of Act No. X of 1877 apparently give substantial, although possibly not full, effect by legislation to the suggestion of their Lordships at page 213 of the Report, it certainly seems probable that Sections 525 and 526 of Act No. X of 1877 were enacted with the intention of giving effect to the suggestion of their Lordships and not with the intention of affirming by legislative enactment the views of Lock, Kemp and Paul, JJ., as to the scope of Section 327 of Act NQ.VIII of 1859. However that may have been, we must decide the question before us upon the construction of Sections 525 and 526 of Act No. XIV of 1882.
3. Before proceeding to consider Sections 525 and 526 of Act No. XIV of 1882 it may be observed that West and Nanabhai Haridas, JJ., in Samal Nathu v. Jaishankar Dalsukram I.L.R. 9 Bom. 254, and Sir Charles Sarjent, C.J., and Candy, J., in Venkatesh Khando v. Chanapgavda I.L.R. 17 Bom. 674, apparently considered that an objection to an application under Section 525 to file an award that the parties had not agreed to a reference to arbitration did not oust the jurisdiction of the Court in the matter, if the objection was obviously unfounded, which, as it appears to us, involved the proposition that the Court has jurisdiction to consider to a limited extent the evidence for and against such an objection. Even that limited jurisdiction a Court would not have if the opinions on this subject expressed in the judgment of Prinsep, Pigot and Macpherson, JJ., in Surjan Raot v. Bhikari Raot I.L.R. 21 Cal. 213, are correct, according to which the denial or non-admission that the parties had agreed to a reference to arbitration deprives a court of jurisdiction to do otherwise than refuse to file the award.
4. There can be no doubt that Section 525 of Act No. XIV of 1882 applies only when a matter has been referred to arbitration without the intervention of a Court of justice and an award has been made thereon. There must have been-a matter referred to arbitration, there must have been an award on the matter referred, and the reference must have been made without the intervention of a Court of justice. These facts must exist as the foundation of the jurisdiction of a Court under Sections 525 and 526 to order the award to be filed. In other cases, when a question as to the jurisdiction of a Court arises, the Court has to hear and determine the question of jurisdiction, and for that purpose when the question of jurisdiction depends on questions of fact upon which the parties are not agreed, the Court has to take and consider evidence. In our opinion when a Court is in certain events given by statute a jurisdiction, and it is not expressly provided that it shall not exercise that jurisdiction except on the mutual admission of the parties or with their consent, the Court, if its jurisdiction is disputed by a party, must ascertain and determine whether the facts do or do not exist upon which the question of its jurisdiction in the particular matter depends. That we consider to be a matter of general principle. Is that general principle curtailed or made inapplicable by anything contained in Section 525 or Section 526 of Act No. XIV of 1882, or is it by either of those sections recognised
5. The application under Section 525 is to be numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants, and the Court shall direct notice to be given to the parties to the arbitration other than the applicant requiring them to show cause within a time specified why the award should not be filed. It has been held, notwithstanding some decisions to the contrary, in Dandekar v. Dandekars I.L.R. 6 Bom. 663; In the matter of the petition of Dutto Singh I.L.R. 9 Cal. 575; Jones v. Ledgard I.L.R. 8 All. 340; Surjan Raot v. Bhikari Raot I.L.R. 21 Cal. 213, and in Jagan Nath v. Mannu Lal I.L.R. 16 All. 231, and in our opinion rightly, that the term 'to show cause' does not merely mean to allege cause, nor even to make out that there is room for argument, but both to allege cause and to prove it to the satisfaction of the Court.
6. By Section 526 it is enacted: 'If no ground such as is mentioned or referred to in Section 520 or Section 521 be shown against the award, the Court shall order it to be filed and such award shall then take effect as an award made under the provisions pf this chapter.' It appears to us that if the Legislature had intended by Section 526 to confine the grounds which might be shown to the riling of the award to the precise grounds mentioned or referred to in Section 520 or Section 521, it would have said so, and not used the words 'such as is mentioned or referred to.' It appears to us from the use of the words 'such as' that the Legislature intended that the grounds which might be shown should be those mentioned or referred to, or grounds ejusdem generis with those mentioned or 'referred to, in Section 520 and in Section 521.' One of the grounds mentioned in Section 520 is--'(a) when the award has left undetermined any of the matters referred to arbitration, or when it determines any matter not referred to arbitration.' Section 525 applies as well to a parole or oral agreement referring matters in dispute to arbitration as to an agreement in writing referring matters in dispute to arbitration. For the purpose of illustrating what in our opinion is the construction and an application of Section 526 we take the case of a person coming into Court with three documents. One of them he alleges to be an agreement in writing made between him, A., and another person, B., by which questions a, b, and c, purport to have been referred to arbitration; another of those documents he alleges to be an award made under that agreement of reference which purports to decide the questions a, b and c; the third document being his application to the Court under Section 525. Notice under Section 525 having been given to B. to show cause why the award shall not be filed, he, B., alleges that be did not agree to refer questions a, b and c, or that he did not agree to refer any question to arbitration. It appears to us that that is the same as if B. had said in other words--'the matters determined by the award ware not referred to arbitration,' or--' the award determines a, b and c, matters sot referred to arbitration.' That objection, however it was expressed, would not only be ejusdem generis with, but would be one of the precise grounds mentioned and referred to in Clause (a) of Section 520, and consequently would be a ground which, if taken, a Court would have to consider and adjudicate upon under Section 526, whether the decision of the Court would depend merely upon the construction of the agreement, or upon evidence on the one side that the agreement in writing was in fact the agreement of the parties, and upon evidence on the other side that the defendant never had entered into the agreement and that it was a forged document, or that the acceptance of the agreement by the defendant had been obtained by a fraud of the plaintiff which would avoid the agreement. In a similar case defendant might say: 'I agreed to refer questions a and b, but I never agreed to refer question a. The plaintiff, after I executed the agreement of reference, fraudulently inserted in it without my knowledge or consent question c, and the award has determined question c, which was a matter which was never referred to arbitration, and has left undetermined questions a and b, which were matters referred to arbitration.' Those two grounds of objection would in our opinion clearly be within Clause (a) of Section 520. Assume again that the alleged award determined only one matter. We can see no distinction, except in phraseology, between a defendant saying, in showing cause to the application to file the award,--'the award sought to be filed determines a matter not referred to arbitration,' and his saying, so far as it was pertinent to the issue,--'I never agreed to refer any matter to arbitration.' The issue would be the same, namely, 'did the parties agree to refer to arbitration the matter determined by. this award,' and, unless the objection depended solely upon the construction of an admitted agreement of reference in writing, the Court would, under Clause (a) of Section 520 as applied by Section 526, have to determine whether any and what agreement of reference was made orally or in writing as the case might be between the parties.
7. An appeal would lie from the decree which followed the judgment given on the award, even if the decree was in accordance with and not in excels of the award, if the appeal was on the ground that there was no agreement to refer, or on the ground that the award was, not the award of the persons to whom the matter was referred. Either of those grounds would question the validity of the award, and, if sustained, would show that the Court which ordered the award to be filed had no jurisdiction under Sections 525 and 526 to make the order to file the award. Our answer to this reference is that an objection to an application made under Section 525 that the parties had pot agreed to refer to arbitration any matter, or had agreed to refer some only of the matters determined by the award, or that the document alleged to be an award was not an award of the arbitrators, is an objection which must be considered and determined under Section 526 upon evidence by the Court to which the application is made. How far and under what circumstances a decision upon such an application might operate as res judicata may be gathered from the judgment of their Lordships of the Privy Council in Muhammad Nawab Khan v. Alam Khan L.R. 18 I.A. 73.