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Shmt. Uti Widow of Bali Vs. Shmt. Ati Widow of Bhithu and anr. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 82 of 1957
Judge
Reported inAIR1963P& H32
ActsArbitration Act, 1940 - Sections 14, 17, 30 and 39; Code of Civil Procedure (CPC) - Sections 96
AppellantShmt. Uti Widow of Bali
RespondentShmt. Ati Widow of Bhithu and anr.
Appellant Advocate S.L. Puri, Adv.
Respondent Advocate P.C. Jain, Adv.
DispositionAppeal dismissed
Cases ReferredLachhmi Narain v. Sheonath Pandey
Excerpt:
.....of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind..........was filed and a notice about the filing of the award was given to the respondents. the respondents filed objections to the award praying that it be set aside inter alia on the ground that the arbitrators had imported their personal knowledge while giving the award and had illegally drawn an adverse inference against the respondents for their refusal to take special oath. it was also stated that the award was compulsorily registerable and having not been registered could not be made a rule of the court, the objections were resisted, by uti. following issues were framed : 1. whether the arbitrators or the members of the executive committee hearing the appeal have misconducted asalleged? if so, what is its effect? 2. whether the award of the arbitrators is illegal for want of.....
Judgment:

H.R. Khanna, J.

1. This second appeal filed by Mst. Uti has arisen in the following circumstances.

2. Uti complained to the Co-operative Arbitration Society, Phati Halan,' Tehsil Kulu, that Mst. Ati and her son Dyal, respondents had forcibly dispossessed her (Mst. Uti) of a house on 28-12-1953. According to Uti, she was in possession of that house as a tenant of Devta Basil Nag and the respondents destroyed her goods lying therein. On accordingly claimed possession of the house and also sought Rs. 70/- on account of damages caused for the destruction of her goods. Before the aforesaid Society, the parties entered into an agreement and referred the dispute to arbitration. According to the bye-laws of the society, of whichthe parties were members, one Arbitrator was appointed by Uti, one by Ati and her sort and the third by the Society. The Arbitrators gave their award on 2-4-1954 and held that Uti was entitled to possession of the property in dispute and Rs. 70/- on account of damages. Uti was also held entitled to recover cosls of the arbitration proceedings. An appeal was filed by the respondents to the Executive committee of the Society against the aforesaid award but the appeal was dismissed.

Uti thereupon made an application in the Court of learned Sub-Judge, Kulu, under Section 14 Of the Arbitra-tion Act for the filing of the award and making it a rule of the Court. The award was filed and a notice about the filing of the award was given to the respondents. The respondents filed objections to the award praying that it be set aside inter alia on the ground that the Arbitrators had imported their personal knowledge while giving the award and had illegally drawn an adverse inference against the respondents for their refusal to take special oath. It was also stated that the award was compulsorily registerable and having not been registered could not be made a rule of the Court, The objections were resisted, by Uti. following issues were framed :

1. Whether the arbitrators or the members of the executive Committee hearing the appeal have misconducted asalleged? If so, what is its effect?

2. Whether the award of the arbitrators is illegal for want of registration?.

3. Whether the findings of the executive committee hearing appeal is otherwise invalid as alleged? If so, to what effect?

All the issues were decided against the respondents and the award was ordered to be made a rule of the Court. The respondents feeling aggrieved filed an appeal.

The learned Senior Sub-Judge in appeal held that the Arbitrators were guilty of misconduct inasmuch as they had imported their personal knowledge while giving the award. The award was consequently held to be liable to be set aside. It was also held that the award was vitiated on account of the Arbitrators having drawn an adverse inference because of the refusal of the respondents to take special oath. The award was also held to be invalid for want of registration, as the property involved was of the value of more than Rs. 100/-. The appeal of the respondents and their objections to the award were accepted end the award was set aside.

3. in second appeal, the learned counsel for the appellant has argued in the first instance that the appeal before the lower appellate Court was not maintainable. It is con-tended that appeal under Section 39 of the Arbitration Act was maintainable only against the order of the trial Court refusing to set aside the award and not against the decree passed by the trial Court in pursuance of the award. The learned counsel has in this; context referred to Section 17of the Arbitration Act which provides that no appeal shall lie from a decree passed on an award except on the ground that the decree is in exsess of or not otherwise in accordance with the award.

In my opinion, the above argument of the learned counsel for the appellant is without any basis. Reference to the memorandum of appeal, which was filed in the lowerappellate Court, makes it clear that the appeal was directed against the order dated 17-5-1956 of the trial Court whereby the objections of Ati and her son had been dismisses, it is no doubt true that it was stated in the memorandum of appeal that the appeal was under Section 96 of the Cede of Civil Procedure and there was no reference in the memorandum to Section 39 of the Arbitration Act. In my opinion, mere wrong citation of the law under which the appeal was filed would not affect the rights of the parties because the appeal was essentially directed against the order of the trial Court whereby the objections of the appellant had been dismissed.

The learned counsel for the appellant has also pointed out that on the memorandum of appeal in the lower appellate Court a court-fee of Rs. 10/- was paid and along with the memorandum a certified copy of the decree which had been prepared by the trial Court in accordance with the award was also filed. In this respect, I am of the view that the fact of the respondents having paid excess court-fee in the lower appellate Court on the memorandum of appeal cannot operate to their prejudice.

So far as the filing of the copy of the decree-sheet is concerned, it appears to have been done as a matter of abundant precaution. At the best the copy of the decree-sheet, which was filed in the lower Court, can be treated as a surplusage and the appeal filed by the respondents in the lower Court cannot be held to be not maintainable because of the filing of the copy of the decree-sheet. The certified copy of the order, by which the objections had been dismissed, was admittedly filed along with the memorandum of appeal though it was entitled by the trial Court as a judgment. In case Jagat Pande v. Sarawan Pande, AIR 1925 All 404, 'the head note reads as under :

'Where an order directing an award to be filed and a decree in accordance with the award were not separately passed but the Court disposed of the whole case by a single Order,Held: that the appeal was in substance an appeal from an order directing the award to be filed, and as such was competent.'

The observations made by Kapur, J., as he then was, in case Swastika Scientific Engineering Co. v. union of India, reported in (1953) 55 Pun LR 137 : (AIR 1953 Punj 129), have also a bearing in the matter. These observations are incorporated in the head note of that case and read as under :

'Whatever may be the reason for the Court for not setting aside the award, namely, whether objections to the award are dismissed on the merits or on the ground that they are barred by time or for any other reason, tha order remains an order refusing to set aside an award, and an appeal lies under Section 39.

The mere fact that by the same order, objections to the filing of an award are overruled and a decree is directed to be passed, does not take away the right of an aggrieved party to file an appeal.'

In view of the above, I hold that the appeal in the lower appellate Court by the respondents was maintainable.

4. The learned counsel for the appellant has next argued that the award was not liable to be set aside because the Arbitrators were not guilty of any misconduct. In this respect, I find that it is stated by the Arbitrators in the award itself that they had personal knowledge about Mst. Uti being in possession of the property in dispute and about the respondents having forcibly taken possession of that property on 28-12-1953 and about their having damaged the goods of Uti. The Arbitrators Imported their personal knowledge into the making of the award and, in my opinion, the award is liable to be set asida on that account, in a case Lachhmi Narain v. Sheonath Pandey, ILR 43 All 185 : (AIR 1919 All 98), it was held that an arbitrator cannot decide the case submitted to him on his own knowledge and without taking evidence unless fhe terms of thereference especially permit him to do so. I have not been referred to any material on the record to show that the Arbitrators were permitted by the terms of reference to import their personal knowledge into the case. The award given by the Arbitrators in the present case cannot consequently be sustained.

5. The learned counsel for the appellant has alsochallenged the finding of the lower appellate Court aboutthe award requiring compulsory registration and about theinference drawn from the refusal of the respondents to takeoath. In view of my finding that the award is liable tobe set aside on the ground that the Arbitrators had imported their personal knowledge into the matter, it is not necessary to go into those questions. The appeal consequentlyfails and is dismissed. Considering all the circumstancesI leave the parties to bear their own costs in this appeal.


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