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ishar Das and ors. Vs. Keshab Deo and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in7Ind.Cas.68
Appellantishar Das and ors.
RespondentKeshab Deo and ors.
Excerpt:
.....- parties interested--one defendant not appearing--reference to arbitration by the other parties--award--appeal. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established..........not joined in it, were overruled by the learned munsif who passed a decree in accordance with the award. on appeal the learned district judge held that no appeal lay.2. in second appeal to this court, it is contended that there was no valid reference to arbitration inasmuch as all the parties to the suit had not joined in the reference and that, therefore, the award was void ab initio and the defendants had -a right to appeal. the case has been argued at considerable length by the learned vakil for the appellants and the learned advocate for the respondents. numerous authorities have been quoted to us and the ruling of their lordships of the privy council reported in ghulam khan v. muhamad hassan 29 c. 167 : 6 c.w.n. 226 : 4 bom. l.r. 161 : 12 m.l.j. 77 : 29 i.a. 51, discussed at great.....
Judgment:

1. The suit out of which this appeal arises was one for recovery of money due from a firm to which the defendants are said to belong. There were four defendants in the suit, one of whom, named Bhagwan Das, was a minor at the date of the suit. By order of the Court an official of the Court was appointed his guardian ad litem. Written statements were filed by the defendants other than Bhagwan Das. No appearance was entered on behalf of Bhagwan Das. The plaintiffs and the defendants other than Bhagwan Das applied to the Court to refer the matters in dispute to arbitration. An order of reference was accordingly made and an award was given by the arbitrator. Numerous objections were taken to that award in the Court of first instance. These objections, one of which was that the reference was invalid by reason of the fact that all the defendants had not joined in it, were overruled by the learned Munsif who passed a decree in accordance with the award. On appeal the learned District Judge held that no appeal lay.

2. In second appeal to this Court, it is contended that there was no valid reference to arbitration inasmuch as all the parties to the suit had not joined in the reference and that, therefore, the award was void ab initio and the defendants had -a right to appeal. The case has been argued at considerable length by the learned Vakil for the appellants and the learned Advocate for the respondents. Numerous authorities have been quoted to us and the ruling of their Lordships of the Privy Council reported in Ghulam Khan v. Muhamad Hassan 29 C. 167 : 6 C.W.N. 226 : 4 Bom. L.R. 161 : 12 M.L.J. 77 : 29 I.A. 51, discussed at great length. We do not, however, consider it necessary to go into the question dealt with in that appeal in this case. In Pitam Mal v. Sadiq Ali 24 A. 229 : (1902) A.W.N. 19, it was held by a Bench of this Court that the words 'all the parties to a suit' in 506 of the Code of Civil Procedure referred to the succeeding words of the same section 'any matter in difference between them in the suit' and would not necessarily include parties who did not put in any appearance at all and between whom and the parties to the submission there was not in fact any matter in difference in the suit. This decision was passed when the Code of Civil Procedure of 1882 was in force. 506 was to the following effect: 'If all the parties to a suit desire that any matter in difference between them in the suit be referred to arbitration, they may, at any time before judgment is pronounced, apply in person or by their respective pleaders specially authorized in writing in this behalf to the Court for an order of reference'. There is what we consider a significant alteration in the wording of this section as reproduced in the Code now in force. Section (sic) of the second Schedule of the present Code is as follows: 'Where in any suit all the parties interested agree that any matter in difference between them shall be referred to arbitration they may, at any time before judgment is pronounced, apply to the Court for an order of reference.' The modification in the law now made in the present Code appears to bear out the interpretation which was put upon 506 of Act XIV of 1882 by this Court. In the present case Bhagwan Das never put in an appearance or contested the suit and in the events which happened he appears nothing whatever to do in its result inasmuch as by the award he was exempted from the plaintiff's claim. Under these circumstances the appellant, Bhagwan Das, does not appear to us to be a person interested in the matter, which was referred to arbitration between the plaintiffs and the remaining defendants. The conclusion at which we have arrived is that the award cannot be challenged by reason of the fact that Bhagwan Das was not a party to the reference. We dismiss the appeal with costs including fees in this Court on the higher scale.


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