1. This is an application in revision under Section 115, Civil P.C., against a decree paused by the learned Civil Judge of Jaunpur on the basis of an award in the following circumstances : It appears that, during the Muharram in the year 1935, a dispute arose between some Hindu residents of the town of Kheta Sarai and the Muslim population about the route by which the tazia procession had to pass. One Ram Bux owned three houses which lay on that route. All those houses had balconies projecting on the lane underneath. The procession had to pass through that lane, but it appears that the balcony of one of the houses owned by Ram Bux caused an obstruction and the Muslim residents insisted upon that obstruction being removed for the purpose of giving a free passage to the tazias. An apprehension of a breach of the peace arose inconsequence of this dispute and a Police Officer was called to settle it. Ho eventually decided to remove a small portion of the balcony of Ram Bux's house in order to enable the Muslim residents to take the tazias through the lane. Ram Bux thereupon filed a suit in the Court of the Munsif, Shahganj, in which he claimed a declaration of his right to maintain the balcony of his house in its original form and also for damages and an injunction. These reliefs were claimed against the Secretary of State for India, the Police Officer, who had removed a portion of the balcony, as stated above and four Mahomedans at whose instance the Police Officer was alleged to have acted. There was one more defendant in the suit described as 'the Muslim residents of the town of Kheta Sarai' through the four Muslim defendants already referred to.
2. Having instituted the suit in this form Ram Bux proceeded to make an application under Order 1, Rule 8, asking the Court's permission to implead all the Muslim residents of Kheta Sarai as defendants in the suit through the four Muslim defendants as their representatives. It was clearly stated in this application that he wanted a decree to be passed against all the Muslim residents of Kheta Sarai who were consequently very necessary parties to the suit. The suit was resisted on various grounds with which we are not concerned here. The fact remains that it was almost wholly decreed by the first Court. Being aggrieved by that decree, two out of the four Mahomedans, who had been impleaded in the suit not only in their personal capacity but also as the representatives of the Muslim community of Kheta Sarai in general filed an appeal. They are the two applicants in this Court, namely Abdul Waheed Khan alias Munnu Khan and Qazi Nazirul Hasan. The plaintiff and all the other defendants in the suit, including defendant 7, the Muslim residents of Kheta Sarai, were impleaded as respondents in the appeal. During the pendency of the appeal on 4th November 1936, the counsel of the parties made a statement before the Court which amounted to an application for a reference to arbitration. The last portion of that statement raises an important question for consideration in this case and runs as follows:
Let all the parties, on whose behalf no vakalatnama has been filed in any one of the two appeals be exempted from the appeals.
3. It may be mentioned here that, in answer to the suit filed by Ram Bux, which has been referred to above, a Muslim zamindar of Kheta Sarai, named Ashfaq Ahmad, brought a suit against Ram Bux and other members of his family in which it was claimed that the balconies of the three houses, owned by Ram Bux, constituted an encroachment upon the plaintiff's land, and were liable to be removed along with certain other constructions made by Ram Bux. That suit was for the most part, dismissed, by the first Court, and Ashfaq Ahmad had appealed from that decree.
4. Thus, there were two appeals for hearing before the learned Civil Judge of Jaunpur and the statement referred to above was made by the counsel for parties in both the appeals. It is admitted however, that no of the counsel, who made that state, went, represented the Muslim community of Kheta Sarai or the two other Mahomedans, who were defendants in the suit filed by Ram Bux along with the present applicants. It is thus clear that the agreement to refer the dispute to arbitration, which was made through the statement of the counsel referred to above, was only on behalf of the present two applicants and the plaintiff Ram Bux. The Secretary of State for India and the police officer were also exempted in the statement made by the counsel. In consequence of that statement the learned Civil Judge proceeded to pass an order to the effect that the case should be submitted for decision to the arbitrators, named by the parties. It may ho noted hero that there is nothing in the order passed by the Court to show that the parties to the appeals, who were said to have been exempted, were really discharged from the array of parties. It is admitted that the memorandum of appeal was not amended in accordance with the statement made by counsel. The arbitrators delivered their award in due course to the effect that the appeal should be dis. missed. The present applicants then raised several, objections to the validity of that award and the principal one with which we arc concerned is that all the parties to the suit who were interested in the subject-matter of the dispute not having agreed to refer the matter to arbitration, the order of reference passed by the learned Civil Judge upon the basis of the counsel's statement referred to above, was without jurisdiction and consequently the whole proceeding resulting in the award made by the arbitrators was void ab initio. The learned Civil Judge dismissed all the objections by a very brief order the relevant portion of which runs as follows:
Two objections have been urged and rest abandoned, namely (1) that the reference application is not in writing, (2) that the arbitrators should have recorded findings and not decided the case. Both these objections are frivolous and as conceded by the learned pleader for the objector not sustainable. The objections argued are therefore repelled.
5. Having thus disposed of the objections-made by the applicants, the learned Civil Judge ordered a decree to be prepared in. terms of the award, hence the present application in revision.
6. The main contention on behalf of the applicants is that the whole proceeding which resulted in the award was void ab initio in as much as the Muslim residents of Kheta Sarai who were a party to the suit and were highly interested in the subject-matter of dispute, were no parties to the agreement to refer the case to arbitration embodied in the statement made by the party's counsel. This objection was taken by the applicants in the lower Courts' also, but in view of the observations made by the learned Civil Judge, it would appear that it was abandoned. When the case first came up before me for hearing I directed-the learned Counsel for applicants who contended that the objection had never been, abandoned in the lower Court to file an affidavit in support of that allegation. An, affidavit has accordingly been filed today which has been sworn by one of the applicants, Abdul Waheed Khan. He has stated in that affidavit that he was present in the lower Court on the date on which the objections made by the applicants came up for hearing and followed the arguments of his counsel and that no objections were abandoned, as stated by the learned Civil Judge. A similar affidavit has been put in by the opposite party, Ram Bux, in which he supports the statement made by the learned Civil Judge as to the objections being all abandoned except the two mentioned by, him in his order which were subsequently. admitted by the learned Counsel for the objectors to be absolutely frivolous. I do not consider it necessary to decide whether the statement contained in the order of the lower Court regarding the abandonment of the objections, is or is not correct though I cannot help feeling that there was no reason why the applicants should have raised any objection at all if they never, intended to press any one of them as would appear from the judgment of the learned Civil Judge. The point remains that the objection which is now urged before me on behalf of the applicants relates to the jurisdiction of the lower Court and it raises a point which can be raised and considered at any stage. The point is obviously of considerable importance and I shall therefore proceed to consider and decide it.
7. Now it is in my opinion a well established proposition that an agreement to refer a dispute to arbitration to which all the parties interested in dispute are not parties is an invalid reference which does not give any jurisdiction to the Court to refer the matter to arbitration. In the present case it is admitted that the counsel who made the statement embodying the agreement to refer the dispute to arbitration, did not represent either the Muslim residents of Kheta Sarai who had been specially impleaded by the plaintiff as necessary parties to the suit, nor two of the other Muslim defendants who had not put in any appeals in the lower Court. It can hardly be denied that those two defendants as well as the Muslim community of Kheta Sarai were interested in the subject-matter of the dispute. It is evident therefore that the agreement to refer the matter to arbitration, which is embodied in the statement made by the parties' counsel, referred to above, was not supported by the consent of several parties, who were interested in the subject-matter of the dispute and was consequently invalid and could not give the lower Court jurisdiction to refer the matter to arbitration. In this view of the case the decree passed by the lower Court in terms of the award, which was based upon a void reference, must be set aside, in support of this view it would be enough to refer to two cases, namely Venkata Subbayya v. Venkataramanayya : AIR1930Mad646 and Chhanga Mal v. Ram Dulare Lal : AIR1933All388 .
8. The learned Counsel for the opposite parties strenuously contended that the decree, passed by the lower Court in this case being based, upon an award after hearing and disposing of all objections taken to it, cannot be challenged either in appeal or in revision. In support of this contention he relied upon the case in Ajaz Ali v. Mt. Zohara : AIR1932All76 That case is however clearly distinguishable from the present case because there was no objection taken in that case to the effect that the order of reference was ab initio void and therefore the whole proceeding based upon it was without jurisdiction. It was no doubt argued in that case that the lower Court had acted beyond its jurisdiction in passing a decree upon the opinion of the umpire which was not the opinion of the majority, but that was not an objection to the jurisdiction of the Court to make a reference at all and the learned Judge who decided that case held that it was within the jurisdiction of the lower Court to entertain and decide the point and his jurisdiction extended to deciding the point either rightly or wrongly.
9. The learned Counsel has not been able to cite any authority directly in support of his contention and the two cases to which I have referred clearly support my view. In both cases a decree in terms of an award based upon a void agreement to refer was set aside in revision. Another argument on behalf of the respondents is that it was open to the two applicants who were the appellants in the Court below, to exempt the Muslim community of Kheta Sarai and other defendants, and to discharge them from the array of parties and then to refer the dispute to arbitration. This contention, is supported by Chhanga Mal v. Ram Dulare Lal : AIR1933All388 , which has been referred to above. The question therefore is whether, as a matter of fact, the Muslim community of Kheta Sarai and other defendants in the case, who did not join in the reference to arbitration, were exempted and discharged from the array of parties. As I have already stated, there is nothing in the order of reference passed by the Court to show that they were so exempted and discharged and the memorandum of appeal was not amended in accordance with the statement made by counsel in which it was said that all those parties to the case, on whose behalf no vakalatnama had been filed, may be exempted. What is still more important is that in the decree, which was eventually passed by the lower Court, the Muslim community of Kheta Sarai as well as the other two defendants, who did not join the reference, are arrayed as parties and the decree has been passed against them all. It is also to be borne in mind that, according to the award, the appeal was dismissed and the decree of the original Court was restored. It is thus evident that there is an executable decree in existence against the Mahomodan residents of Kheta Sarai as well as the other defendants in the case who wore no parties to the reference.
10. In these circumstances, I do not think that it can be reasonably argued that the defendants, who did not join the reference, had boon exempted and hence there was no defect in the agreement to refer the dispute in arbitration. The result therefore is that I allow thin application and, setting aside the decree passed by the Court below, direct that the appeals filed by the applicants Abdul Waheed Khan and Qazi Naziul Hasan shall be heard and decided upon the merits.