1. This is an application for revision from an order, dated 6th June 1932, appointing a third arbitrator when the parties after due notice failed to agree to the appointment by the Court of any particular person. A preliminary objection is taken to the hearing of this revision that it does not lie. Unfortunately there appears to be some apparent conflict of authority. There are several cases relied on by the learned Counsel for the respondent, some of which are mentioned in Risal Singh v. Faqir Singh : AIR1932All452 , which would go to suggest that such a matter cannot be treated as a case decided. On the other hand, the learned advocate for the applicant has strongly relied on the case of Puran Lal v. Rup Chand : AIR1931All761 , which followed an earlier ruling in Jagannath Sahu v. Chhedi Sahu : AIR1929All144 . These cases would suggest that a revision would lie from an order, appointing an arbitrator. Had it been necessary for us to decide this point we would have been compelled to refer this case to a larger Bench in order to set the conflict at rest, but we may point out that in the casa of Puran Lal v. Rup Chand : AIR1931All761 although the application in revision was from an order appointing a new arbitrator, the award had actually been delivered by the time the revision came up for hearing and it would obviously have involved a waste of time, labour and money, if that particular application had been dismissed and the applicant had been asked to file a fresh application in revision from an order passed in the subsequent proceeding. Under Section 115, Civil P.C., the High Court can interfere of its own accord when the fact of material irregularity is brought to its notice. As remarked above it is not necessary in this case to reconsider the decisions. The learned advocate for the applicant contends that when the parties agreed that the case should be decided by a named arbitrator and in the event of his refusing to act, by another named arbitrator, they necessarily implied that no other person should be appointed as arbitrator by the Court. It is also argued that there was, in fact, no agreement to refer the matter to arbitration in general, but that there was a mere agreement to have the case decided by two specifically named arbitrators.
2. In our opinion when the parties agreed that the matter should be decided by arbitration and counsel for the parties made a statement before the Court and signed it, there was an application made to the Court for an order of reference. The names of the two arbitrators were given because it was intended that as the parties had agreed as regards them, the Court should appoint them in the first instance. The statement of the counsel was silent as to what was to happen in case the second arbitrator also refused to act. There was no express provision that the Court would have no power to appoint a third arbitrator and that the suit must be decided on the original side. Accordingly the power conferred upon the Court under Rule 5, Sub-rule 2, Schedule 2, existed and was not contrary to any agreement between the parties. By leaving the question open, the parties obviously intended that the ordinary statutory power would be enforced in the case of a dead-look. We are unable to interpret the statement of the counsel to mean that there was by necessary implication, an agreement that the Court would have no power to appoint a third arbitrator. It is not contended before us that the formalities required by Rule 5, Sub-rule 2, Civil P.C., were not complied with. There has been no material irregularity in the appointment of the third arbitrator. If the Court has misinterpreted the statements of the counsel for the parties it may utmost be an erroneous view on a point of law and not necessarily a material irregularity. The last point urged is that the Court had no jurisdiction to allow a reference to arbitration when the dispute re-later to the Mahantship of the muth in question. Strong reliance is placed on the case of Mohammad Ibrahim Khan v. Ahmad Saeed Khan (1910) 32 All. 503. That was a somewhat peculiar case which has certain special features. The trust had expressly created a wakf of certain immoveable property
to defray the expenses of the poor, the faqirs, the orphans, the needy and the indigent; and to defray the expenses of other good deeds.
3. The Bench thought that the question before them was which of the descendants of the wakif was qualified to become the trustee. As they had not come to an agreement as to who should be the trustee, they had referred their dispute to a private arbitration and the award delivered by the arbitrator was sought to be filed in Court, that as regards the trust of the nature of public charity there is prerogative of the Crown to protect such charities and that it is the duty of the King and therefore of the Court to see that it is properly administered. The learned Judges accordingly held that the office of the trustee to a public charity was not a right about which the disputes can be settled by arbitration and that the right of succession to the trusteeship of a public charity if attempted to be settled by an award should not be accepted by a Court. In the present case the plaintiff merely admitted that the muth belonged to an order of Gir Sanyasis. There is nothing on the record to show the strength of this order and no indication whether the members of the order can be regarded as any large section of a community. Furthermore, there is nothing to suggest that he muth was of the nature of the public charity and that the income was to be spent on public purposes and was neither mere religious order nor confined for the benefit of a group of persons belonging to that order. Both the parties were litigating in their own rights and were claiming that each of them was of right entitled to the muth. They did not ask the Court to appoint a trustee on the supposition that the office was vacant, In these circumstances the Court -could not possibly have investigated the rights and interests of a third party outside the litigation and even if satisfied that such a third party is the real trustee, could not have appointed him as trustee. The sole question was whether the plaintiff was entitled to possession of the property or whether it should remain in the possession of the defendant and the claim should be dismissed. The dispute therefore was clearly of a private nature and there is nothing on the face of if on the record which would suggest that a reference to arbitration of such a dispute was in any way illegal or forbidden by law or contrary to any well-known rule of public policy. In these circumstances the case of Mohammad Ibrahim Khan v. Ahmad Saeed Khan (1910) 32 All. 503, is at least distinguishable and it is not necessary for us to consider that decision. We may point out that the decision of the rights of the parties will be only inter se and will in no way prejudice any other person who may have a better right to be the trustee. The application is accordingly dismissed with costs.