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Bhola Nath Vs. Raghunath Das Mithan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All743; 122Ind.Cas.685
AppellantBhola Nath
RespondentRaghunath Das Mithan Lal and ors.
Cases ReferredChatarbhuj v. Raghubar Dayal
Excerpt:
.....related to the plaintiff but considered that defendants 1 and 2 might very well apprehend that the umpire would not treat them fairly. 1. in our opinion this objection is not well founded. 354. but as pointed out in the latter case this inherent jurisdiction of the court, if it can be called into play, should be cautiously and sparingly exercised and only when it is obvious that the ends of justice would not be met by requiring the dissatisfied party to wait and see what the award might be and then to assail it on the ground of corruption or misconduct and the court should be satisfied that the applicant would suffer some irreparable injury if prompt action is not taken (p. it can intervene only if it is satisfied that the ends of justice urgently require its intervention or that without.....1. this is an application in revision from an order superseding a reference to arbitration before the award was delivered. defendants 1 and 2 applied to the court that the reference should be superseded on the ground that the umpire was related to the plaintiff and that the uncle of the umpire's son-in-law had sued the defendants at kasganj and the plaintiff had an apprehension that the fact might influence the mind of the umpire in deciding the case. the learned munsif after taking evidence came to the conclusion that it was not proved that the umpire was in any way related to the plaintiff but considered that defendants 1 and 2 might very well apprehend that the umpire would not treat them fairly. he himself did not record any finding that in his own opinion there was an apprehension.....
Judgment:

1. This is an application in revision from an order superseding a reference to arbitration before the award was delivered. Defendants 1 and 2 applied to the Court that the reference should be superseded on the ground that the umpire was related to the plaintiff and that the uncle of the umpire's son-in-law had sued the defendants at Kasganj and the plaintiff had an apprehension that the fact might influence the mind of the umpire in deciding the case. The learned Munsif after taking evidence came to the conclusion that it was not proved that the umpire was in any way related to the plaintiff but considered that defendants 1 and 2 might very well apprehend that the umpire would not treat them fairly. He himself did not record any finding that in his own opinion there was an apprehension that justice would not be done and that his immediate intervention was called for. He superseded the reference and fixed a date for the disposal of the suit. Defendant 3 has applied in revision from this order and has impleaded the other parties as respondents.

2. A preliminary objection is taken on behalf of defendants 1 and 2 that no revision lies and reliance is placed on the Full Bench case of Buddhu Lal v. Mewa Ram A.I.R. 1921 All. 1. In our opinion this objection is not well founded. In the Full Bench case the trial Court had recorded its finding on one of the issues relating to the question of jurisdiction. The learned Judges thought that the word 'case' in Section 115 was wide enough to include any particular question in issue between the parties to the suit, but two other learned Judges took the view that the expression 'case decided' meant 'suit decided' and that no revision could lie from an interlocutory order. The fifth Judge, viz., Ryves, J. confined his judgment to the question whether the decision on a single issue by a Subordinate Court while the suit was still pending in that Court was a case decided within the meaning of Section 115, and came to the conclusion that it was not. It therefore seems to us that the Full Bench case is an authority only for the proposition that no revision lies from a finding recorded by the trial Court on one or more issues out of several that are before it for disposal. There was no majority in favour of the broad proposition that no revision lies from an interlocutory order. We may note that a revision from an order restoring a case has been held by another Full Bench to be open to revision, Ram Sarup v. Gaya Prasad : AIR1925All610 .

3. It seems to us that the word 'case' does not necessarily mean 'suit' but can mean a proceeding. If any proceeding in a suit has terminated it is certainly a case decided within the meaning of Section 115, although the suit itself has not been finally disposed of. In the present case there was a reference to arbitration then there was an application for supersession which has been finally disposed of and the reference has come to an end. That proceeding has terminated and the case is now restored on its original number and is ordered to be disposed of by the Court. The order superseding the reference to arbitration in our opinion, amounts to an order deciding a case and as no appeal lies from it, it is open to revision. This was the view taken by a Bench of this Court in the case of Chaturbhuj v. Raghubar Dayal [1911] 36 All. 354, in which the revision from an order superseding an arbitration was actually entertained and allowed. We therefore think that there is no force in the preliminary objection.

4. On the merits we would have no jurisdiction to interfere under Section 115, unless the Court below acted without jurisdiction or acted with material irregularity in the exercise of its jurisdiction. Sch. 2, Civil P.C., provides for several contingencies in which a reference to arbitration may be superseded by the Court. We may refer to Rules 5, 8 and 15 of that schedule. There is no express provision which empowers a Court to supersede an arbitration on grounds other than those mentioned in it. It may, however, be said in favour of the respondent that there is an inherent jurisdiction in a Court to intervene and supersede the arbitration if the case fell under Section 151 of the Code, viz., where such an order is necessary for the ends of justice or to prevent the abuse of the process of the Court. That such an inherent jurisdiction exists has been laid down by the Bombay High Court and by a single Judge of the Patna High Court, and has also been assumed by the learned Judges in the case of Chatarbhuj v. Raghubar Dayal [1911] 36 All. 354. But as pointed out in the latter case this inherent jurisdiction of the Court, if it can be called into play, should be cautiously and sparingly exercised and only when it is obvious that the ends of justice would not be met by requiring the dissatisfied party to wait and see what the award might be and then to assail it on the ground of corruption or misconduct and the Court should be satisfied that the applicant would suffer some irreparable injury if prompt action is not taken (p. 360). The Court has not an absolute power and discretion to supersede all references to arbitration. It can intervene only if it is satisfied that the ends of justice urgently require its intervention or that without such intervention there would be an abuse of the process of the Court. Beyond that narrow scope the Court has no general power of setting aside arbitrations. The mere fact that the aggrieved party might have a right to challenge this order under Section 105, Sub-clause 1, subsequently in an appeal from the decree finally passed, does not debar us from interfering at this stage so as to prevent an unnecessary waste of time of the Court in recording evidence and the additional expenses to which the parties would be subjected.

5. If the Court has not applied its mind to the extent of its own jurisdiction and has not recorded any finding that the ends of justice requires its intervention or that the process of the Court is likely to be abused, but has merely superseded the reference on the ground that one of the parties thereto has an apprehension that he would not be fairly treated, the Court, if it has not actually acted without jurisdiction, has certainly acted with material irregularity in the exercise of its jurisdiction The case of Chatarbhaj was also very similar to the present case where the trial Court had superseded the reference on the ground that the applicant had lost confidence in the fairness and impartiality of the arbitrator.

6. If any fraud has been practise on the defendant and knowledge was deliberately concealed from him or any bias or prejudice is established after the award is delivered that may be a ground for setting aside the award when objection is taken to it. It is too early to presume that the umpire would act with a prejudice against the defendant merely because an uncle of his son-in-law has sued the defendant. We accordingly allow this revision, set aside the order of the Court below dated 31st January 1928 which superseded the arbitration and send the case back to that Court with directions to refer the matter again to the arbitrators in pursuance of the agreement entered into by the parties. The applicant should have the costs of this proceeding from defendants 1 and 2.


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