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Kanhya Lal Vs. Firm Jagannath Pershad, Hanuman Pershad Through Jagannath Pershad - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All16; 60Ind.Cas.857
AppellantKanhya Lal
RespondentFirm Jagannath Pershad, Hanuman Pershad Through Jagannath Pershad
Cases ReferredLutawan v. Lachiya
Excerpt:
.....has been so directed by collector of the district. [1996 aihc 3628 overruled]. - (2) failure by the defendant to file a written statement of his own after the decision against him as to his age, and (3) further trumpery complaints of the nature of misconduct against the arbitrator not necessary to particularize here. 4. the decision of the subordinate judge is clearly indefensible. but reasoning mainly from that expression the members of the fail bunch in lutawan v. for these reasons, subject only to their reservation, that i do net stand committed to the proposition that an order like the one here complained of could not be challenged in a petition of appeal under section 105, i concur in the order which has been passed......and dismissing the suit.2. on the 25th june the plaintiff filed objections in the court of the subordinate judge praying that the award be set aside. these objections alleged, (1) fraud and collusion between the deferent and the arbitrator, and necessarily, therefore, mis-conducted the arbitrator; (2) failure by the defendant to file a written statement of his own after the decision against him as to his age, and (3) further trumpery complaints of the nature of misconduct against the arbitrator not necessary to particularize here.3. on the 16th of september, in spite of the fact that the defendant had adopted the written statement of laonmi narain, and that the issues originally settled had been expressly referred to the arbitrator by the court, the subordinate judge held that the.....
Judgment:

Walsh, J.

1. In this case a suit was brought in the Court of the Subordinate Judge of Cawnpore by a firm named Jagannath Prasad, etc., against one Kanhya Lal, who was alleged to be 22 years of age, for damages for non-delivery of goods. The defendant alleged infancy, and a written statement was filed upon his behalf by one Laobmi Narain in which the contract was denied, and the defences of infancy, and wagering were set up. Issues were settled by the Judge on the 9th January 1919. The question of the defendant's minority was separately tried, and was decided against him in Marsh, When the day for the trial, in May, arrived the parties decided to refer their dispute to arbitration, and the issues: which had been struck were, by order of Court, referred to an arbitrator, who made an award on the 23rd June in favour of the defendant, holding that, although the defendant was of age, there had been no contract, and dismissing the suit.

2. On the 25th June the plaintiff filed objections in the Court of the Subordinate Judge praying that the award be set aside. These objections alleged, (1) Fraud and collusion between the deferent and the arbitrator, and necessarily, therefore, mis-conducted the arbitrator; (2) Failure by the defendant to file a written statement of his own after the decision against him as to his age, and (3) Further trumpery complaints of the nature of misconduct against the arbitrator not necessary to particularize here.

3. On the 16th of September, in spite of the fact that the defendant had adopted the written statement of Laonmi Narain, and that the issues originally settled had been expressly referred to the arbitrator by the Court, the Subordinate Judge held that the absence of a further written statement by the defendant invalidated the reference and the arbitration, and that therefore, the award was invalid, and he set it aside. The defendant now applies to this Court in revision to quash the order, and an objection is raised to the jurisdiction of this Court to interfere. This objection gives rise to a technical question o% some difficulty.

4. The decision of the Subordinate Judge is clearly indefensible. The ground upon which he has interfered is no ground at all for questioning either the arbitration proceedings, or the award. Both parties wore hound by the order of reference as to all matters covered by it, including the pleadings as they then stood and the issues as settled. After the order of reference, it was too late for either party to object to the form of the proceedings anterior to the reference, or to the form of the issres. The defendant could not have done BO himself, and the plaintiff hid less ground, if possible, than the defendant for objecting to the abmnoa of a fresh writ'en statement as the prejudice, if any, would affect the defendant alone. The ground upon which the learned Judge has acted in fact, an objection to the decision of the arbitrator in the gure of an objection to the proceedings of the Trial Court, and the decision of the Subordinate Judge amounts to a reversal of the order of reference paused by the same Court, without any change in the circumstances, except the execution of the order by the holding of the arbitration and the making of the award. In other words, it is equivalent to an order refusing to stay the suit where there bus been not only for agreement, but an order to refer to arbitration. It is not EO in terms, otherwise it would be appleable under Section 104.

5. In the course of the argument, we were referred to the case of Qhulam Khan v. Mohammad Hassan c, the leading authority in the Privy Council on Arbitration Law as laid down in the Civil Procedure Code, and to that of Lutawan v. Lachiya 21 Ind. Cas. 989 : 12 A.L.J. 57 : 36 A. 69, a Full Bench decision of this High Court reported in 12 Allahabad Law Journal 57. In both cases a decree had been passed in accordance with, and not in exuesn of, an award, to that the point to be decided differed from the question BOW raised. It is necessary, therefore, to examine the principles established by those cases, which are, of course, binding upon us.

6. Their Lordships point out that the Code deals with arbitrations under three heads. Only the first of these need concern us, namely, where the parties to a litigation refer to arbitration any matter in the suit, so that all proceedings are under the supervision of the Trial Court. Subject to that, an arbitrator has a free hand. If he proceeds regularly, and decides the matters referred to him and no others, he may make any error of law or fact with reference to the matters actually in dispute without power of redress to any party, and if the award is duly made and an. application to set it aside is refused by the Trial Court, that Court has no option but to pronoun is a decree in accordance with it Against such decree there is no appeal. Turning to Schedule II of the Code, paragraph 15 provides the grounds upon which an award may be set aside. Since the case of Qhulam Khan v. Muhammad Hussan 29 C. 167 (P.C.) : 6 C.W.N. 226 : 29 I.A. 51 : 12 M.L.T. 77 : 4 Bnom. L.R. 161 : 8 Sar. P.C.J. 154 : 25 P.R. 1902 (supra) was decided, the words or being otherwise invalid' have been added, without in any way affecting the decision or the reasons given by their Lordships of the Privy Council. But reasoning mainly from that expression the Members of the Fail Bunch in Lutawan v. Lachiya 21 Ind. Cas. 989 : 12 A.L.J. 57 : 36 A. 69 were unanimous in saying that the original Court, and no other, should decide any objections to the award on the ground of invalidity from any cause whatever. That is to say, the 'otherwise invalid' must not be construed as e'tisdem generis with what has gone before it. Accepting to the full that construction, it is necessary to point out that some limitation must be placed upon the words so construed. They cannot mean that a decision merely adopting an idle or wanton objection, however absurd and irrelevant would be a decision of invalidity from any cause whatever.' We think the meaning to be put upon the language of the Full Bench is, that the decision must be a real decision of some ground, no matter what, which if it existed, would invalidate an award. In fact, paragraph 15 prescribes and delimits the jurisdiction of the cyrigina'! Court; 'No award,' it says, shall be set aside except, etc.' The ground taken and adopted in the decision of this case is no ground affecting the validity of the award at all application by reason of any doubts I might entertain as to the applicability of this Court's revisional jurisdiction and later on be deprived of his remedy by way of appeal on account of any judicial opinion regarding the operation of Section 105 of the same Code. For these reasons, subject only to their reservation, that I do net stand committed to the proposition that an order like the one here complained of could not be challenged in a petition of appeal under Section 105, I concur in the order which has been passed.


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