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Abdul Ghani Vs. DIn Dayal - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All219; 50Ind.Cas.655
AppellantAbdul Ghani
RespondentDIn Dayal
Excerpt:
.....is called upon to correct. but this authority to appoint does not arise unless the necessary conditions precedent have been fulfilled and it is clear to me that inasmuch as the plaintiff failed in this case to serve the notice required by paragraph 5, sub-paragraph 1, and to apply to the court in the manner laid down in paragraph 5, sub paragraph 2, the court had no authority to proceed to appoint babu kuar sen as an arbitrator even if it could be assumed in the munsif's favour that he was acting within his jurisdiction, it is certain that he acted at least with irregularity which in the circumstances was material, for the result of his action was that an arbitrator was thrust upon the defendant against his will and without his being given any opportunity of showing cause against the..........days, and that the defendant had no opportunity of showing cause against the appointment of babu kuar sen. the munsif passed no order on this application. he merely ordered it to be filed with the record and to be put up on the date fixed. in the meantime bibu kuar sen had issued notions to the parties to appear before him and produce their evidence on a certain date before the date for taking evidence, the defendant presented a petition to the arbitrator reiterating the objection he had already made in the court of the munsif; the result was that the defend, ant, refusing to recognise the appointment of babu kuar sen, declined to attend the enquiry and to produce any evidence the plaintiff's evidence was taken and an ex parte award was drawn up which was sent to the court. notice then.....
Judgment:

Lindsay, J.

1. This is an application in revision directed against an order of the Munsif of Bijnore passed in the course of a salt in which the parties originally went to arbitration. It appears that after the first arbitrator had been appointed and after he had been called upon to enter upon his duties, he informed the Court that he was not willing to act and returned the papers which had been sent to him. The date on which the papers were returned to the Court with this intimation was the 8th of December 1916. The Munsif thereupon directed that the parties should be given notice of the refusal of the arbitrator to act. On the 12th of December 1916 it is made to appear that an application was made on behalf of the plaintiff direct to the Court asking for the appointment of another arbitrator. The defendant was present on that occasion and from the order sheet it appears that the parties could not come to any agreement in the matter of nominating a fresh arbitrator In these circumstances the Munsif recorded an order saying that he considered one Babu Kuar Sen to be a suitable person to act as arbitrator and made an order appointing him accordingly. The defendant to k objection on the 18th of December 1916 to his appointment and took his stand on the provisions of Schedule II to the Code of Civil Procedure, paragraph 5. It was pointed out that no written notice had been served upon him by the plaintiff as required by that paragraph, that the appointment was made before the expiry of seven clear days, and that the defendant had no opportunity of showing cause against the appointment of Babu Kuar Sen. The Munsif passed no order on this application. He merely ordered it to be filed with the record and to be put up on the date fixed. In the meantime Bibu Kuar Sen had issued notions to the parties to appear before him and produce their evidence on a certain date Before the date for taking evidence, the defendant presented a petition to the arbitrator reiterating the objection he had already made in the Court of the Munsif; the result was that the defend, ant, refusing to recognise the appointment of Babu Kuar Sen, declined to attend the enquiry and to produce any evidence The plaintiff's evidence was taken and an ex parte award was drawn up which was sent to the Court. Notice then issued to the defendant 1 to show cause why the award should not be made a rule of Court. Again the defendant took objection to the appointment and pleaded that in the circumstances no decree should be made on the ex parte award. The Court overruled the objection and after expressing an opinion that the arbitrator had not been guilty of any misconduct gave a decree in terms of the award.

2. It is argued here that the proceedings of the Munsif from the time the first arbitrator refused to act have been without jurisdiction and that even if they were not without jurisdiction they were at least tainted with illegality or material irregularity. On the other hand, it is argued that this is not a case for revision. It is pleaded that the provisions of the law regarding the appointment of the second arbitrator were substantially, if not literally, complied with. It is said that the Court bad jurisdiction to appoint a second arbitrator and that if there were any irregularities they were not material irregularities which this Court is called upon to correct. It is not to be doubted that in certain circumstances the Court is vested with jurisdiction to appoint a fresh arbitrator. But this authority to appoint does not arise unless the necessary conditions precedent have been fulfilled and it is clear to me that inasmuch as the plaintiff failed in this case to serve the notice required by paragraph 5, sub-paragraph 1, and to apply to the Court in the manner laid down in paragraph 5, sub paragraph 2, the Court had no authority to proceed to appoint Babu Kuar Sen as an arbitrator Even if it could be assumed in the Munsif's favour that he was acting within his jurisdiction, it is certain that he acted at least with irregularity which in the circumstances was material, for the result of his action was that an arbitrator was thrust upon the defendant against his will and without his being given any opportunity of showing cause against the appointment. I am satisfied, therefore, that the applicant has succeeded in making out the case sought to be established in revision. The proceedings were most irregular and must be set aside. The order is, therefore, that the application is allowed, the decree of the Munsif's Courtis set aside and the case is sent back for disposal in accordance with law. The petitioner is entitled to his costs in this Court, including fees on the higher scale.


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