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Smt. Dulari Devi Vs. Rajendra Prakash and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 326 of 1951 connected with F.A.F.O. No. 224 of 1951
Judge
Reported inAIR1959All711
ActsArbitration Act, 1940 - Sections 5, 13, 21 and 30
AppellantSmt. Dulari Devi
RespondentRajendra Prakash and ors.
Appellant AdvocateK.C. Saksena, Adv.
Respondent AdvocateS.B.L. Gaur, Adv.
DispositionAppeal dismissed
Excerpt:
(i) arbitration - section 5 of arbitration act, 1940 - no contrary intention expressed in the agreement - open to party to revoke the reference - agreement of reference is irrevocable unless the leave of the court was taken. (ii) award - direction to persons who are not parties is judicial misconduct - portion in award within the jurisdiction and beyond the jurisdiction and are separable - whole award is not invalid. (iii) umpire - section 30 of arbitration act, 1940 - even number of arbitrators and the arbitrators would themselves appoint him as an umpire. - - the plaintiff had become weak on account of illness for two years and his mental as well as physical condition had deteriorated. he further contended that he had, in any event, given notice well in time to the arbitrators that.....v.d. bhargava, j.1. these are two connected matters, one is a first appeal no. 326 of 1951 and the other is a first appeal from order no, 224 of 1951. since both arise out of the same matter they were connected in the court below and the appeals against the orders have also been connected.2. the facts of the case are that sheo shankar lal plaintiff in suit no. 41 of 1949, had three wives. out of his union with the second wife a daughter was born. she was smt. bitano. she was married to rajendra prakash, defendant no. 1 in suit no. 41 of 1949. his sons ramesh chandra, suresh chandra and mahesh chandra are defendants nos. 2 to 4. the dispute relates to a house situate in mohalla gudri janwaran alias ghamandi mathia in the city of farrukhabad. the case of the plaintiff in the suit was that.....
Judgment:

V.D. Bhargava, J.

1. These are two connected matters, one is a first appeal No. 326 of 1951 and the other is a first appeal from order No, 224 of 1951. Since both arise out of the same matter they were connected in the court below and the appeals against the orders have also been connected.

2. The facts of the case are that Sheo Shankar Lal plaintiff in suit No. 41 of 1949, had three wives. Out of his union with the second wife a daughter was born. She was Smt. Bitano. She was married to Rajendra Prakash, defendant No. 1 in suit No. 41 of 1949. His sons Ramesh Chandra, Suresh Chandra and Mahesh Chandra are defendants Nos. 2 to 4. The dispute relates to a house situate in Mohalla Gudri Janwaran alias Ghamandi Mathia in the city of Farrukhabad. The case of the plaintiff in the suit was that he had purchased this house on 2-9-1919 from his brother-in-law.

After the purchase, he obtained permission from the Municipal Board, Farrukhabad and made constructions. Six months after the execution of the sale deed the plaintiff had invested a considerable amount, and he started living in the house. He lived there for some time. About 8 or 9 years ago he had purchased another house to which he shifted. Smt. Bitano, the elder daughter of the plaintiff, was married to defendant No. 1 Rajendra Prakash. Since he was in trouble about the house, the plaintiff allowed Rajendra Prakash to occupy the house in dispute and his daughter and son-in-law continued to five in it. They were living with) the permission of the plaintiff.

The plaintiff had become weak on account of illness for two years and his mental as well as physical condition had deteriorated. He wanted to make arrangement for the disposal of this house. Therefore, he wanted defendant No. 1 to vacate the house, but he refused and put up the plea that the house belonged to his sons, defendants Nos. 2 to 4. Defendant No. 1 further made a false accusation against the plaintiff that he had borrowed a sum of Rs. 2000/- from defendant No. 1 which had not been paid. Since the defendant did not vacate the house, hence the suit. This suit was filed on 27-7-49.

3. On the same day another application, which was No. 42 of 1949, was filed under Section 14 of the Arbitration Act by Rajendra Prakash against Sheo Shankar Lal, his father-in-law and his three sons Ramesh Chandra, Suresh Chandra and Mahesh Chandra, with a prayer that the court may direct the arbitrators to file an award and a decree be passed in terms of the award.

4. The defence of Rajendra Prakash in the suit, in which he was the defendant, was that the house did not belong to Sheo Shankar Lal, but it had been purchased benami in his name, because it was purchased from the brother-in-law of Sheo Shankar Lal, who may have hesitated to transfer ill to Rajendra Prakash, who was the son-in-law of Sheo Shankar Lal. It was purchased with the Money contributed by Rajendra Prakash and it was he who had made the constructions and had all along been paying the house and water taxes. The house had been given by him to his sons and there was also a formal deed of gift by Sheo Shankar Lal in favour of his sons. A sum of Rs. 2000/- was advanced by Rajendra Prakash to his father-in-law which had not been paid and he laid a claim to that amount also.

5. Suit No. 42 of 1949 was based on the allegations that since there was dispute about the house and a sum of Rs. 2000/-, Sheo Shankar Lal and Rajendra Prakash both agreed to refer the matter in dispute to arbitration of three persons. That reference to arbitration was signed in writing on 28-4-49. The three arbitrators appointed were Suraj Narain (Sarpanch) Pursottam Narain and Mahesh Prasad. The arbitrators gave the award which was to the effect that the house had been purchased benami by Rajendra Prakash and had been constructed by him and thereafter with the consent of Sheo Shankar Lal and Rajendra Prakash the house was given to Ramesh Chandra, Suresh Chandra and Mahesh Chandra. It was, therefore, prayed that a decree in terms of the award be passed.

6. The defence of Sheo Shankar Lal to this suit was that he never agreed to refer the matter to arbitration, that he had signed only on a blank paper, that there was misconduct on the part of the arbitrators, who proceeded ex parte, that the arbitrators went beyond their jurisdiction in making the award in favour of defendants Nos. 2 to 4 who were no parties to the arbitration and that, therefore, he was not bound by the award. He further contended that he had, in any event, given notice well in time to the arbitrators that he had resiled from the arbitration.

7. Both the matters were heard by the Civil Judge of Farrukhabad who had accepted the award and passed a decree partly in terms of it and had dismissed the suit of Sheo Shankar Lal holding that after the acceptance of the award the plaintiff had no claim.

8. Before I discuss the points that have been argued before me, I may give certain facts and dates. The house, as I have already mentioned, was purchased in the year 1919. Thereafter we do not hear anything for thirty years. The first complaint of Sheo Shankar Lal about this is by means of a notice dated 17-3-49, in which he lays claim to this house, which was addressed to Raja Ram which is an alias for Rajendra Prakash. Therein he has mentioned that a house in Mohalla Gudri Tanwaran was purchased out of his funds and he had got the house constructed and was in proprietory possession and occupation of it. He allowed his daughter and Rajendra Prakash to live in it and the daughter had died and Rajendra Prakash had been living by way of concession, and since he did not want the house to be occupied by him, he asked it to be vacated.

A reply to this notice was sent by Rajendra Prakash on 15-4-49. Wherein he refuted the ownership of Sheo Shankar Lal and said that he was not at all the owner of the house or had invested any money in it, but, on the other hand it was owned and possessed by the sons of Rajendra Prakash, who all along with Rajendra Prakash had been living in it. In that reply Rajendra Prakash also claimed the sum of Rs. 2000/- which had been borrowed by Sheo Shankar Lal from Rajendra Prakash. He demanded that sum to be paid back within one month, otherwise, he said he would be forced to take legal action.

9. Thereafter another notice was sent by Sheo Shankar Lal on 23-4-1949 wherein he said that the contents of the notice of Rajendra Prakash were all wrong and the story of advancing Rs. 2000/- was a false one and he asserted that the sons of Rajendra Prakash could not be the owners of this house and that he was going to file a suit in court. On 28-4-49 a reference to arbitration was entered into between Rajendra Prakash and Sheo Shankar Lal, wherein they have alleged that since there was a dispute about the house and Rs. 2000/- and since there was likely to be a tension, they thought it fit to settle the dispute by means of arbitration. After understanding fully the advantages and disadvantages, they appointed Pt. Purshotam Narain and Pt. Mahesh Chandra as panches and Pt, Suraj Narain as the Sarpanch. In that agreement they agreed that they would be bound by the conclusion unanimously given by them and that their award would be final and they would have no right to object. It may be mention-fed that the arbitrators' first meeting was held on the same day,

10. On 23-5-49 the arbitrators sent a notice to both the parties fixing Sunday 29-5-1949 for recording evidence. Therein it was mentioned that both the parties were requested to attend the meeting of the arbitrators on 29-5-1949 and produce such evidence as they may be advised. The notice also mentioned that in case of default of any party the proceeding was to be ex parte against the defaulter. In reply to this notice on 29-5-49 Sheo Shankar Lal sent a telegram to the following effect:

'Don't proceed. Everything bogus. No arbitrators appointed.'

On the 29th May there appears to have been a sitting, but since Sheo Shankar Lal was not present it appears the arbitrators wanted to give time. They postponed the case and fixed 1-6-1949 and sent a telegram to both the parties which reads as follows:

'Attend with evidence 1st June 8 a.m. at my residence.'

This telegram was met with another reply dated 1-6-49 and this telegram reads as follows :

'Your telegram wrong. All nonsense. Don't persecute me. Busy arranging daughter's marriage.' It may be mentioned that his daughter's marriage was fixed near about 1-6-49. Since the parties were not present, yet another notice was sent to Sheo Shankar Lal wherein it was mentioned that as they wanted to give full opportunity to the parties for producing their respective evidence, the arbitrators had unanimously decided to fix 8-6-1949 as the 'next final date' for the arbitration proceedings to be held at the residence of Suraj Narain Misra at 10 a.m. The parties were informed to attend the meeting punctually at 10 a.m. with their evidence on 8-6-49. In reply to this notice Sheo Shankar LaV again sent a telegram saying

'I have not appointed you arbitrator. Don't proceed.' Thereafter the arbitrators heard and recorded evidence ex parte and gave their award on 30-6-49, a cony of which was also sent to both the parties. When this copy was sent, on 27-7-49, Sheo Shankar Lal filed a suit for possession wherein he mentioned that he had never entered into any agreement to arbitration and that the arbitration was invalid. Suit No. 42 of 1949 was filed by Rajendra Prakash for the enforcement of the award.

11. If it is decided that there had been no illegality or irregularity, or misconduct on the part of the arbitrators, and that that award is binding then the suit has practically no force. Therefore, the main question to be determined is whether that award has been properly accepted by the trial court or not.

12. Learned counsel for the appellant had argued that in fact there was no legal and valid reference of arbitration. He has relied on the oral evidence produced in this case. Sheo Shankar Lal (P. W. 1) had stated with reference to this document that he was going to file a suit for possession and purchase stamp for it. On 8-4-1949 Suraj Narain Misra, i. e., the Sarpanch, asked him not to file a suit and he promised to get the house vacated. Suraj Narain obtained his signature on a blank paper.

He had told Suraj Narain clearly that he would not like to have any panchayat. He did not execute any agreement of reference. He had been attacked by paralysis four or five years ago and since then he had been keeping bad health. Suraj Narain had asked him to appoint him as panch, and as he refused to appoint him as such he became angry with him. Thereafter he never went to Suraj Narain. But Suraj Narain had taken his signature after he had asked him to appoint him as a panch. The signature that he had made was on just a completely bank paper. He did not remember whether he had signed at one place or more than once place. He also does not know whether any thumb-mark was taken or not.

13. From the above evidence it was contended that I must come to the conclusion that that signature had been taken on a blank paper and that blank paper had later on been converted into an agreement of reference. The paper which has been produced is not a blank paper, but a stamp paper. There are signatures of both parties and also thumb impressions. When he says that he had signed an absolutely blank paper the plaintiff is not telling the truth. The ink of the signatures and the contents on the two pages of the document appears to be the same. Actually, one is a stamp paper of twelve annas and the other of two annas. There is a signature at one place on the one while on the latter there are signatures at two places.

14. Another witness relied upon by learned counsel for the appellant was Gopi Nath (P. W. 2). According to the respondent, he is the person responsible for this litigation. He is the grandfather of the second son-in-law of Sheo Shankar Lal. There was another daughter of Sheo Shankar Lal by his third wife. She is Smt. Ram Dulari, who was going to be married in June 1949, to the grandson of Gopi Nath. Till then the marriage had not been performed and it was contended by the respondent that it is this Gopi Nath who wanted that Sheo Shankar Lal should have the house back so that it might come to his grandson.

He deposed that Suraj Narain had told him in Phagun, that there was a dispute between the plaintiff and defendant No. 1, and had asked him to get it settled. He replied that he would not intervene as the marriage had not yet taken place, meaning thereby the marriage of his grandson with the daughter of Sheo Shankar Lal. He had further stated that Suraj Narain had told him in April, that he had obtained the signatures of defendant No. 1 and the plaintiff on a blank paper.

Gopi Nath had asked him to settle the matter amicably. He had asked Sheo Shankar Lal whether he had appointed any panch or not to which Sheo Shankar Lal replied that he had not appointed anyone. Suraj Narain had asked him not to marry his grandson to the plaintiff's daughter. But he had replied that he would marry her as the girl was very pretty. This witness has no direct knowledge of the transaction and does not in any way prove that the signature had been obtained on a blank paper.

15. Uma Shankar (P. W. 7) is another, witness, who at one time, was a vakil and, according to his evidence, had given up his practice. He is said to have been consulted by Pursottam Narain, one of the arbitrators, as to whether there should be one arbitrator or three and he deposed to the effect that Pursottam had told him that Shankar Lal and Rajendra Prakash had made signatures on a paper. This evidence is only a hearsay evidence and in his cross-examination he has said that the agreement of reference was not shown to him and no other talk took place in his presence. His evidence is not of much value.

16. Another person on whose evidence reliance has been placed is Chunni Lal (P. W. 6). He also, to my mind, does not help the appellant He has said that there was only one stamp paper and the plaintiff had given only one signature and that the plaintiff's thumb-mark was not taken. Suraj Narain had said that he would settle the dispute and would do the panchayat for the plaintiff. The plaintiff signed and left. He did not remember whether the plaintiff had said anything.

He had signed the paper, of that he was certain. So far as his certainty about the signature is concerned, it has not been denied by the plaintiff himself. But when he says that there was only one stamp paper and only one signature he is not correct. According to his evidence, when Suraj Narain had said that he would settle the dispute the plaintiff signed after that. Therefore, the plaintiff had signed the document after knowing that it was going to be a reference. In any case, this witness actually to a certain extent supports the respondents.

17. Suraj Narain in his evidence has denied the allegations made by the plaintiff. The plaintiff had appointed him, Mahesh Chandra and Pursottam Narain as arbitrators, and the agreement of reference was executed in his presence. He gave full opportunity to the parties to produce evidence. On the other evidence the court, which had the opportunity to see the witnesses and watch their demeanour, has come to the conclusion that the appellant failed to prove that he had made the signature on a blank paper. It has come to the conclusion that the deed of reference was signed by Sheo Shankar Lal knowing it to be such. I see no reason to differ from the findings of the court below on this matter and I hold that so far as the factum of the execution of the agreement to reference is concerned, it had been executed by Sheo Shankar Lal knowing it to be such.

18. The next question that arises is whether after the execution of the deed he could resile from it. Section 5 of the Arbitration Act provides the manner in which there could be revocation of that agreement. Section 5 reads:

'The authority of an appointed arbitrator or umpire shall not be revocable except with the leave of the Court, unless a contrary intention is expressed in the arbitration agreement.' I have already given the gist of the agreement to reference and there, there is no contrary intention expressed relying on which, it was open to the appellant to resile from or revoke the reference. Therefore, unless the leave of the court was taken the agreement was irrevocable. If for some reason the appellant thought that the agreement had been obtained either by fraud or the persons who had been appointed would not be very fair to him, or some matter had been suppressed from [his knowledge at the time of the execution of the agreement, or there were any other reasons on which he could contend that he could revoke the agreement, it was open to him to go to the court with an application under Section 5 and ask for a revocation. Admittedly this has not been done. Then I am bound by the mandatory nature of Section 5 to hold that the reference would be irrevocable, though he may have tried to resile from it.

19. If the agreement to reference is a binding agreement then in that case the award given by the arbitrators can be set aside on the ground of misconduct as mentioned in Section 30 of the Arbitration Act. Section 30 reads as follows:

'An award shall not be set aside except on one or more of the following grounds, namely:

(a) that an arbitrator or umpire has misconducted himself or the proceedings;

(b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under Section 35;

(c) that an award has been improperly procured or is otherwise invalid.'

20. It was contended that this case wouldcome under Clause (a) or (c) of the section because the award has been obtained improperly and the arbitrators had misconducted themselves. The grounds of misconduct on which the award is being challenged were; firstly, that no proper notice of ex parte proceedings had been given. Secondly, that the award has gone beyond the jurisdiction of the arbitrators, because it has decided matters between the persons who were no parties to the reference; and thi:dly, that Suraj Narain Misra who had been appointed as sarpanch, was in the position of an umpire and as such he could not take part at all in the award and since he has done it, the award would be invalid.

21. So far as the question that the award has gone beyond the jurisdiction of the arbitrators is concerned, reliance has been placed on Mahadeo Prasad v. Kamla Varma : AIR1956All51 where a learned single Judge of this Court in an original suit has held as follows:

'It is judicial misconduct on the part of the arbitrators when they give directions in their award touching the persons who are not parties before them or on a subject-matter not referred to them.' On the above observations it was argued that here, since the award had been given in favour of the sons of Rajendra Prakash, there was a judicial misconduct on the part of the arbitrators and the award should be set aside. The court below has not upheld that portion of the award and has made it clear that that portion was separate. In that very judgment the learned single Judge had said:

'But if that part of the award which deals with matters not referred to arbitration can be distinctly separated from the other part and does not in the slightest affect the decision on the matters referred, then the Court is fully justified under Section 15(a) in modifying the impugned award by cancelling its invalid part.' This is exactly what the learned Civil Judge in this case has done. He has not accepted that portion of the award which has gone beyond the jurisdiction of the arbitrators. In the circumstances I do not think that there can be said to be any judicial misconduct in the present case. The arbitrators in their award bad held as follows:

'We, the Panches and Sarpanch unanimously hold that the first party (Sheo Shankar Lal) has no interest in the property and it has no concern, whatsoever, with the house in dispute. The house in dispute is actually the self-acquired property built by the second party (Rajendra Prakash) itself and its sale-deed was simply a benami sale-deed in favour of the first party.' Thereafter they further added:

'The house in dispute has been given to the sons of the second party with the consent of both the parties and it is the property of the second party and its sons.' But the latter portion has not been incorporated in the decree, while the former portion which related to the dispute between Rajendra Prakash and Sheo Shankar Lal has been incorporated. I, therefore, think that the decision of the court below on this issue was correct, as both the portions were separable.

I respectfully agree with the observations of my brother James J., in the case cited above that if there are portions in the award which are within the jurisdiction and which are beyond its jurisdiction and they are separate, then the court can ignore the portion which was without jurisdiction and pass a decree in terms of the award which is within the jurisdiction of the arbitrators,

22. It was further contended that it was necessary that all the parties interested should have been made parties to the reference to arbitration. But here Ramesh Chandra and his brothers were interested in the dispute but they having not been made parties, the order of reference was bad. Reliance was placed on Section 21 of the Arbitration Act which says:

'Where in any suit all the parties interested agree that any matter in difference between them in the suit shall be referred to arbitration, they may at any time before judgment is pronounced apply in writing to the Court for an order of reference.' On this provision it was said that here all the parties interested having not agreed the reference was bad. Reliance was placed on Samand Khan v. Mohammad Ramzan Khan, AIR 1938 Lah 582, where a reference was rejected on the ground that some of the minors, who were parties to the reference, were not parties because the consent of the court had not been obtained for arbitration on their behalf as required by the Code of Civil Procedure.

Section 21 occurs in Chapter IV under the heading 'Arbitration in Suits.' It is only when a matter is referred to arbitration in a pending suit that all the parties interested in the suit should agree to the reference, because there is a likelihood that there might be two conflicting decrees in one suit filed in one Court, one between the parties, who have agreed to refer their dispute to arbitration and the other, which may be passed On taking evidence between the other parties and the parties which have not referred the dispute to arbitration.

But there does not appear to be any provision in the Arbitration Act which forbids arbitration being entered into otherwise if it is outside the court. The authority of the Lahore High Court: firstly, does not deal with this matter directly, and secondly, it was a reference in a suit and, therefore also it is distinguishable. In the circumstances I do not think that the validity of the reference can be challenged on that score.

The real dispute at that time was between Sheo Shankar Lal and Rajendra Prakash. Both of them had entered into arbitration agreement. So far as the sons of Rajendra Prakash are concerned, they were not claiming any direct right. They were only claiming through their father Rajendra Prakash. In the circumstances they were also not necessary parties.

23. The next question is whether the arbitrators were authorised to proceed ex parte or not. Russell on Arbitration (Fifteenth Edition) at page 144 observes:

'Every arbitrator is authorised, by nature of his office, to proceed ex parte for good cause. It is unnecessary, though not unusual, to give him the power in express terms in submission. No application to the court is necessary to warrant his so proceeding, but the arbitrator is to judge for himself of the discretion of the exercising of the power.' This appears to be an observation by Moulton L. J., in In re, Enoch and Zaretzky Bock and Co., (1910) 1 KB 227 at p. 333. There is no provision for issuing a notice also that the proceedings would be taken ex parte.

24. Learned counsel for the appellant has relied on a recent case of the Calcutta High Court, viz., Juggi Lal Kamlapat v. General Fiber Dealers Ltd. : AIR1955Cal354 . The learned Chief Justice there had observed:

'The procedural rule applicable to arbitration proceedings is more tolerant than the rule followed in Courts of law. Broadly stated, the principles governing the arbitrators' right to proceed ex parte are :

If a party to an arbitration agreement fails to appear at one of the sittings, the arbitrator cannot or, at least ought not to, proceed ex parte against him at that sitting. Where the non-appearance was accidental or casual, the arbitrator ought ordinarily to proceed in the ordinary way, fixing another date of hearing and awaiting the future behaviour of the defaulting party. If, on the other hand, it appears that the defaulting party had absented himself with a view to preventing justice or defeating the object of the reference, the arbitrator should issue a notice that he intends at specified time and place to proceed with the reference and that if the party concerned does not attend, he will proceed in his absence.

But, if after making such a peremptory appointment and issuing such a notice the arbitrator does not in fact proceed ex parte on the date fixed, but fixes another subsequent date, he cannot proceed ex parte on such subsequent date, unless he issues a similar notice in respect of that date as well.

If he issues a similar notice and the party concerned does not appear, an award made ex parte, will be in order. Rut if he does not issue such a notice on the second occasion, but nevertheless proceeds ex parte, the award will be liable to be set aside in spite of a notice of a peremptory hearing having been given in respect of the earlier date, subject, however, to the condition that prejudice was caused to the party against whom the ex parte order was made. But this duty to give notice of an intention to proceed ex parte is not an absolute duty.'

On the above observations in the above case it was contended by learned counsel for the appellant that here though in the notice dated 23-5-1949 it was mentioned that the proceedings would be taken ex parte, but in subsequent notice, since it was not mentioned that the proceedings will be taken ex parte, the arbitrator had no jurisdiction to proceed. Their Lordships themselves have said that if any prejudice has been caused to the party against whom the ex parte order was made, then and only then the proceedings would be set aside.

In the present case from the replies to the notice sent by Sheo Shankar Lal, it was quite clear that he was neither accepting the reference to arbitration nor accepting the arbitrators. Their Lordships in the Calcutta case had further observed that:

'If it appears from the circumstances of the case that a particular party is determined not to appear before the arbitrators in any event, as when, he has openly repudiated either the reference itself or the particular arbitrators and has shown no desire to recant, the arbitrators are not required to issue a notice of an intention to proceed ex parte against such recusant person and may proceed ex parte and make a valid award without issuing a notice. The better course, however, even in such a ease is to issue notice and give the party concerned a chance to change his mind.' Here, in the present case also, he had openly repudiated the reference as well as the arbitrators and had clearly shown that he had no desire to take any part in the proceedings. He had called these proceedings 'bogus' and 'nonsense'. Even according to the decision relied upon by learned counsel for the appellant there could be no case of misconduct.

I respectfully agree with most of the observations of the learned Judges of the Calcutta High Court, but I do not think it would be absolutely necessary that if one notice had been given that the proceedings would be ex parte, in the other notice it should be specifically mentioned that the proceedings would be ex parte also. Whether such an intention should be mentioned or not and what notice would be sufficient may vary in different circumstances in different cases.

In any event in the last notice, it was clearly mentioned that the 8th June was the 'next final date'; which should be enough to show that on that date case would proceed, whether the plaintiff presented himself or not. In my view, therefore, even that formality had been formally observed, though, as I have already said, in my opinion, it was not necessary.

25. In Subraya Prabhu v. Manjunath Bhakta, ILR,29 Mad 44, a Bench of the Madras High Court held:

'The omission to give notice of the meeting of the arbitrators to a party who had, prior to such meeting, notified to the arbitrators his withdrawal from the submission, does not invalidate an award.' Here from the very beginning the intention of the party was quite clear, and I think, in the circumstances of the case, the court had rightly come to the conclusion that the award given ex parte was a valid award.

26. Lastly the point urged by learned counsel for the appellant was that since Suraj Narain Misra was an umpire, he could not take part in the proceedings and reliance was placed on clauses 2, 4 and 5 of Schedule I of the Arbitration Act, Clause 2 provides :

'(2) If the reference is to an even number of arbitrators the arbitrators shall appoint an umpire not later than one month from the latest date of their respective appointments;'

Clause 4 says :

'(4) If the arbitrators have allowed their time to expire without making an award or have delivered to any party to the arbitration agreement or to the umpire a notice in writing stating that they cannot agree, the umpire shall forthwith enter on the reference in lieu of the arbitration.' Clause 5 says :

'(5) The umpire shall make an award within two months of entering on the reference or within such extended time as the Court may allow.' On these sections it was contended that he could only act when the other arbitrators did not decide the matter. If the other arbitrators decided the matter then the umpire should keep himself aloof. It is only when there is a difference of opinion or when they do not agree, that the umpire should come on the scene. Reliance was placed on Chouthmal Jivrajee v. Ramchandra Jivrajee' AIR 1955 Nag 126 where the word 'umpire' had been discussed.

There the person concerned was appointed as sarpanch and not 'umpire', A certain distinction was drawn, but ultimately they held that the person concerned was acting as umpire and therefore he could not have taken part. The presents Case is a different case from that one. Here there were three arbitrators actually appointed and one of them was called the Sarpanch, who was in the position of a chairman. He was not an umpire appointed under Clause 2 of Schedule I of the Arbitration Act.

Such umpire could only be appointed if there was even number of arbitrators and the arbitrators themselves would appoint him as an umpire. A person wbo is appointed not by the arbitrators but by the parties themselves would not be an umpire as contemplated under schedule I of the Arbitration Act.

27. Moreover, the present reference to arbitration 'required that there should be a unanimous award of the three, which could not be unless the Sarpanch had also taken part in the reference. If he was an umpire of the nature as contemplated in Schedule I then the award of the majority should have been binding and not an unanimous award. If the award was to be unanimous the opinion of the Sarpanch was necessary and therefore, on this ground also it cannot be said that the award was: bad.

28. Since no misconduct, legal or otherwise, on the part of the arbitrators has been proved nor has it been proved that there has been illegality in the proceedings, nor it has been established that the award had been procured improperly, I think the court below was correct in accepting the award to the extent it did. Accordingly the first appeal against the order accepting the award is dismissed with costs.

29. The first appeal which has been filedwould also have no strength to stand upon. Ifonce that award is accepted the plaintiff in the suithas no right in the house in question. The rightvests in Rajendra Prakash. I need not discuss theevidence in detail and after the acceptance of theaward it is not necessary. If the plaintiff has noright to the house his suit has rightly been dismissed. The first appeal is also dismissed with costs.


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