1. The facts of this case, at least those which can engage the attention of this Court, are similar to the facts in Civil Revision No. 627 of 1934, and my decision in this case will govern my decision in the other revision as well.
2. It appears that Kunwar Jitwar Singh brought a suit for preemption against Ganga Singh; Sughar Singh, Deo Singh and Mt. Pariharin. The last defendant was the vendor and as such a proforma defendant. At one stage the plaintiff and Ganga Singh and Deo Singh referred their dispute to arbitration. Sughar Singh, defendant, 2, was a Sub-Inspector at a different place and proceedings against him were ex-parte and he neither filed a written statement nor engaged any counsel nor was he a signatory to the deed of reference. The Court however referred the matter to arbitration and the arbitral or decided that the plaintiff's suit ought to be dismissed.
3. On this it war Singh the plaintiff filed objections before the Court below and prayed that the award be set aside because the reference to arbitration was not by all the parties interested and because the arbitrator was guilty of misconduct. The Court below has held that the arbitrator took great pains in the matter and acted with perfect impartiality. It has however held that the order of reference was bad inasmuch as Sughar Singh was a person interested and be did not join in the agreement to refer. I agree with the Court below that Sughar Singh was a person interested and the reference to agree was in that sense perhaps bad, although it is contended before me that. Ganga Singh was the head of the family and his agreement should be deemed to be an agreement on behalf of the other two defendants who were his younger brothers. The fact however remains that Ganga Singh at first tried to defend the suit on behalf of his brothers, but ultimately the written statement was by him alone. It is not possible upon the materials on the record to hold that the agreement by Ganga Singh should be deemed to be an agreement by Sughar Singh as well who did not sign the agreement.
4. The question which has however been strongly argued before me is that the learned Munsif has set aside the award purporting to act under Clause 15, Second Schedule to the Civil P.C., and it is said that the Court below had no jurisdiction to set aside the award under Clause 15, inasmuch as the jurisdiction of the trial Court in a matter like this is confined to the conditions laid down therein. It is clear that the objection to the award in the shape in which it is made, namely on 'the ground of a bad order of reference, does not come within clauses (a) and (b) of Clause 15, nor even within Clause (c) except perhaps on the ground 'of being otherwise invalid.' So far as this Court is concerned the authorities are to the effect that it is not possible to hold that an objection which attacks the validity of the agreement to refer can come within the expression 'or being' otherwise invalid.' I might refer to the case of Kanhya Lal v. Jagannath 1921 All. 16, where Walsh, J. at p. 37, after having stated the facts of the case, observes:
The ground taken and adopted in the decision of this case is no ground affecting the validity of the award at all. It is merely a decision that the Court ought not to have referred. Is that a matter affecting the validity of the award once the dispute has been referred
5. This case was considered in the case of Gopal Das v. Baij Nath 1926 All. 238, where Sulaiman, J. says:
But in Kanhya Lal v. Jagannath 1921 All. 16 decided by a Bench of which the same learned Judge was a member it was remarked that objections as to the validity of a reference to arbitration was not an objection within the meaning of Rule 15.... With this last observation we agree.
6. In Mahadeo Prasad v. Badri Das Ram Sarup 1928 All. 740, Mukerji J. observes:
We are of opinion that on principle and on authority the four words quoted (or being otherwise invalid) do not and cannot cover an award where the reference itself is bad. The Court is required to consider whether an award is good or bad.... On principle therefore the words 'or being otherwise invalid' should not be taken as including the question whether there was a valid reference to the arbitration.
7. In Tej Singh v. Ghasi Ram 1927 All. 563, Ashworth, J. held that:
Paragraph 15 of the schedule does not apply to an award which has been made upon a reference to make which the Court had no jurisdiction.
8. It would thus appear that the force of authority in this Court is in favour of the view that the Court itself which made the reference is not competent to set aside the award under Clause 15 on the ground that the reference was bad. There is therefore considerable force in the contention of learned Counsel for the applicants that the Court below had no jurisdiction to set aside the award on the ground that the reference to arbitration was bad inasmuch as it had not the concurrence of all the parties interested, and I am asked to set aside the decision of the Court below under Section 115, Civil P.C., as being without jurisdiction.
9. On behalf of t he opposite party it is contended that I should not so act because after all the matter is before me and I should see for myself whether the reference was had and whether the award should be set aside on that ground. This contention is advanced on behalf of the plaintiff and to my mind it comes with a very bad grace from him. He signed the agreement to refer; he was present throughout the proceedings before the arbitrator and when be lost before the forum chosen by himself he comes to the Court and asks that Court to cancel its previous order to which he had given his full conference on the ground that it is defective by reason of the fact that one of the parties interested (that party not being himself) had not assented to the agreement to refer. I think it does not lie in the mouth of the plaintiff to pick holes in the award on this score.
10. I therefore am of the opinion that if the matter had come up before me in revision on the plaintiff's application if the Count below had passed a decree in accordance with the award, I would have been very loath to interfere. The last contention by Dr. Vaish was that although the trial Court may not have jurisdiction under Clause 15, Second Schedule, Civil P.C., to set aside an award under circumstances like the present, yet there is nothing to prevent the Court from acting under Section 151, Civil P.C., in a matter of this kind. The answer to this is that the Court below has not purported to act under section 151, but the entire trend of his judgment shows that he was of the opinion that he had jurisdiction under Clause 15 to interfere. If the Court below had acted under Section 151, Civil P.C., it might have been a question open to some doubt whether I in my revisional jurisdiction should have interfered with the Court below where he had acted in order to prevent any abuse of the process of the Court.
11. On the whole I am of the opinion that the order of the Court below should be set aside. I have been influenced to a great extent by the fact that if the order of the Court below is maintained the inviolability which attaches to an award where the arbitrator has taken great pains and has acted with perfect impartiality would vanish, and after all the plaintiff was a preemptor asserting a right which is not a very strong right and under the award all that happened was that the suit was dismissed.
12. For the reasons given above I allow this application, set aside the order of the Court below, and confirming the award pass a decree in terms of the award. Parties will bear their own costs subsequent to the filing of the award up till this Court. In the decree that will be passed on the basis of the award the suit of the plaintiff will be dismissed with costs.