1. These two connected revisions are directed against a decree passed by the learned Subordinate Judge of Saharanpur, ordering that an award be made a rule of the Court. The circumstances under which the award was made are as follows : The plaintiff, Inder Sen, brought a suit for partition, inter alia, of a certain going concern. Mitter Sen, defendant 1, is the brother of the plaintiff Hari Chanel, defendant 2 and Sumer Chand, defendant 3, belong to the same family. Sumer Chand died during the pendency of the suit in the lower Court. Sumer Ghand's interest survived to Hari Chand and therefore no proceedings for substitution of names were taken. It is not necessary to mention in detail the controversy which arose between the parties to the case. The plaintiff and the three defendants agreed to refer their differences to an arbitration by Babu Mela Ram, a vakil. The Court accordingly made a reference. The proceedings before the arbitrator were long and remained pending from 30th May to 11th October 1932 without any award being made. The Court extended the time for the award being filed several times. On the 11th October 1932 the Court granted an extension for the last time till 10th November 1932. The learned Subordinate Judge made the parties and the arbitrator to understand that they 'should expedite the matter and no request for further time be made.'
2. The defendants were dissatisfied with the arbitration and applied to the Court on 11th October 1932 for permission to revoke the reference. The Court however did not supersede the arbitration and directed the arbitrator to make his award and file it by 10th November 1932. On 9th November 1932 the defendant, Mitter Son, intimated to the arbitrator that he was not willing to have the case decided by the arbitrator. The defendant Hari Chand also joined Mitter Sen in asking the arbitrator to refrain from proceeding with the arbitration. Defendant 3, Sumer Chand, had died in the meantime. Mr. Mela Ram, who appears to have been prompted by the best of motives, told the plaintiff that the defendants were no longer willing to have the case decided by the arbitrator, and requested him (the plaintiff) to agree to a revocation of the reference. The plaintiff agreed. Thereupon Mr. Mela Ram drew up a report,. stating the facts mentioned above and asking the Court to supersede the arbitration. In conclusion he apologized for having taken a long time in bringing the arbitration proceedings to an end and expressed his thanks to the plaintiff who had, at his instance, agreed to revoke the reference. It is quite clear to us that Mr. Mela Ram who had agreed to act as the arbitrator as a friend of the parties found that one of them, if the award happened to be against him, was likely to impugn his impartiality. Accordingly he did not think it desirable to proceed with the arbitration. The plaintiff, who was not otherwise agreeable to the course suggested by the defendants, acceded to the request of Mr. Mela Ram and agreed to the arbitration being superseded. On receipt of the arbitrator's report, the learned Subordinate Judge recorded an order that the case should be put for 10th November 1932 which was the date fixed for the award being filed. It appears that shortly after the aforesaid order was passed, the plaintiff appeared through his counsel and insisted on the case being decided by the arbitrator. The learned Subordinate Judge noted a second order of 9th November 1932 which runs as follows:
The plaintiff does not want to resile from the arbitration and his vakil contests the defendants' right to resile from it at such a belated and almost complete stage of the arbitration. My attention is drawn to Kunji Lal v. Banwari Lal A.I.R. 1918 Pat. 83 also in support of the above contention. The arbitration is therefore not set aside and the matter will be put up again before me on the 10th, the date fixed for the return of the award.
3. It should be noticed that the defendant was not present on that data, nor does the learned Subordinate Judge seem to have considered the effect of the plaintiff's consent given before the arbitrator to the revocation of the reference. On 10th November 1932, when the case was taken up, Mr. Mela Ram was not present. He was said to have gone to Delhi. The case was adjourned to 11th November 1932 when Mr. Mala Ram was sent for by the learned Subordinate Judge. On, being persuaded by the learned Subordinate Judge, he agreed to resume the arbitration proceedings. He said he had no objection personally to decide the case. Time was granted to him till 17th November 1932 when he filed his award. Both the defendants objected to the award being given effect to. The learned Subordinate Judge however passed a decree in terms of the award. Civil Revision No. 39 of 1933 has been filed by the defendant, Hari Chand, and Civil Revision No. 218 of 1933 has been filed by defendant Mitter Sen.
4. The sole question argued by the learned advocates for the applicants is that all the parties and the arbitrator having agreed on 9th November 1932 to the arbitration being superseded, it was not open to the learned Subordinate Judge to refer back the case to the arbitrator nor was the arbitrator competent to deal with the matter after the events which had happened on 9th November 1932. We are of opinion that this contention is well-founded. It is no doubt true that after a reference has been made through Court, one of the parties cannot resile from it and that unless the Court passes an order superseding the arbitration the arbitrator's authority subsists. In the case before us the position is materially different. Both the parties and the arbitrator agreed that the reference be revoked. Clearly analysed the arrangement amounted to an agreement between the plaintiff and the defendants that the reference be revoked and to a refusal by the arbitrator to arbitrate. The fact that the plaintiff had to be persuaded by Mr. Mela Ram to agree to the course suggested by the defendants is wholly immaterial. Similarly the reasons which led Mr. Mela Ram to refuse to act as arbitrator are not material.
5. The learned advocate for the plaintiff-respondent strongly contended before us that the plaintiff's consent expressed on 9th November 1932 was not 'genuine' and that his subsequent action before the Court should not be lost sight of. We do not think that the plaintiff's consent given before the arbitrator can be termed otherwise than 'genuine.' It is not suggested that he was merely keeping up appearance or had any intention to deceive anybody, nor is it suggested that he was coerced into giving his consent by the arbitrator or by anybody else. It is however clear that the plaintiff, if left to himself, would have preferred the ease to be decided by Mr. Mela Ram, but the latter induced him, of course, by proper means, to agree to the revocation of the arbitration and the case being decided by the Court. The arbitrator himself: desired to wash his hands off the arbitration proceedings. He had accepted a somewhat onerous and thankless task of deciding a complicated case, but when he discovered that one of the parties openly impugned his impartiality, he decided to refuse to make an award.
6. The question of law which emerges from these facts is whether there was a subsisting reference after the arbitrator submitted his report of 9th November 1932, embodying the agreement of the parties and his own determination in the matter.
7. In our opinion, a reference to arbitration initially derives its force from the agreement of parties. Where the parties agree that any matter in difference between them be referred to arbitration, the Court has no option and must make a reference (Schedule 2, para. 3). It follows as a corollary that if the parties agree that a reference be withdrawn, at any rate, if the arbitrator also agrees, the Court should supersede the arbitration. In the case before us the parties and the arbitrator were of one mind on 9th November 1932 and but for the action which the Court subsequently took no question of a fresh submission could have arisen, and in the circumstances of the case the Court should have superseded the arbitration. An additional reason for that course was that the learned Subordinate Judge had, by a peremptory order, fixed 10th November 1932 for the award being filed. By that date there was no award before the Court and on the contrary he had the report of the arbitrator, containing a polite refusal to arbitrate. We think that the reference originally made by the parties and accepted by the arbitrator did not subsist on 10th November when the Court successfully persuaded Mr. Mela Ram to resume the arbitration proceedings and to make the award. The fact that subsequently the plaintiff and Mr. Mela Ram reconsidered their previous resolve in concurrence with the defendants could not revive the reference which had come to an end. In our opinion nothing short of a fresh agreement to refer could invest the arbitrator with power to decide the controversy between the parties.
8. The learned advocate for the plaintiff opposite party referred to the terms of para. 15, Schedule 2, Civil Procedure Code, and argued that no award can be set aside except for one of the reasons therein mentioned. As regards Clause (c) which provides that an award may be set aside on the ground that the same was made after the issue of an order by the Court superseding arbitration or that the award is 'otherwise invalid,' it was urged that the last ground should be taken ejusdem generis with the ground mentioned before, that is to say, it should be some ground akin to corruption or misconduct of the arbitrator. In our opinion, this contention is not sound. As already stated the agreement to refer was abrogated by the agreement of the parties and the refusal of the arbitrator on 9th November 1932 and that any award subsequently made in the teeth of opposition by one of the parties cannot be considered to be a valid award. We are clearly of opinion that the authority of the arbitrator having been revoked by both the parties with his consent could not be reconferred upon him by only one of the parties and the Court. Any award made in these circumstances cannot be upheld as a valid award. The learned Subordinate Judge acted illegally and at least with material irregularity in the exercise of his jurisdiction in returning the case to the arbitrator and subsequently passing a decree in terms of the award.
9. The result is that these revisions succeed. The decree passed in terms of the award is set aside and the award is declared to be invalid. The suit shall be disposed of according to law. The applicants shall have their costs from the plaintiff, opposite party.