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Fateh Chand and ors. Vs. Moti Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 46 of 1951
Judge
Reported inAIR1953P& H105
ActsArbitration Act, 1940 - Sections 31(4)
AppellantFateh Chand and ors.
RespondentMoti Ram and ors.
Appellant Advocate Shamair Chand,; F.C. Mital and; P.C. Jain, Advs.
Respondent Advocate Roop Chand and; M.L. Saksena, Advs.
Cases ReferredMst. Chandra Wat v. Jagan Nath Singh
Excerpt:
.....for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in..........no. 88 of 1952 and first appeal from order no. 89 of 1952.2. on 13-10-1948, moti ram instituted civil suits nos. 241 and 242 of 1948. in civil suit no. 241 of 1948 moti ram claimed 1/24th share in the assets of. messrs har parshad tulsi ram and for reasons stated in the plaint claimed dissolution of partnership and rendition of accounts of that firm. in civil suit no. 242 of 1948 moti ram claimed 1/6th share in the assets of messrs tulsi ram zorawar singh and for reasons stated in the plaint claimed dissolution of partnership and rendition of accounts of that firm.3. on 4-5-1949, parties to civil suits nos. 241 and 242 of 1948 referred the disputes in these suits to the arbitration of babu jogi das and babu shambhu dial. by agreement, ex. p. 1, disputes between the parties with.....
Judgment:

Harnam Singh, J.

1. This order disposes of First Appeal from Order No. 46 of 1951, Civil Revn. No. 255 of 1951, First Appeal from Order No. 88 of 1952 and First Appeal from Order No. 89 of 1952.

2. On 13-10-1948, Moti Ram instituted civil suits Nos. 241 and 242 of 1948. In civil suit No. 241 of 1948 Moti Ram claimed 1/24th share in the assets of. Messrs Har Parshad Tulsi Ram and for reasons stated in the plaint claimed dissolution of partnership and rendition of accounts of that firm. In civil suit No. 242 of 1948 Moti Ram claimed 1/6th share in the assets of Messrs Tulsi Ram Zorawar Singh and for reasons stated in the plaint claimed dissolution of partnership and rendition of accounts of that firm.

3. On 4-5-1949, parties to civil suits Nos. 241 and 242 of 1948 referred the disputes in these suits to the arbitration of Babu Jogi Das and Babu Shambhu Dial. By agreement, Ex. P. 1, disputes between the parties with respect to properties extraneous to civil suits Nos. 241 and 242 of 1948 were also referred to the arbitration of Babu Jogi Das and Babu Shambhu Dial. On 4-5-1949, civil Suits Nos. 241 and 242 of 1943 were ponding in the Court of Lala Hira Lal, Subordinate Judge, 1st Class, Rohtak.

4. On 17-8-1949, Babu Jogi Das applied in the Court of Lala Hira Lal, Subordinate Judge, that the parties may be informed that the arbitrators will enquire into the disputes on 29-8-1949, and that the parties, if advised, may summon witnesses for 29-8-1949.

5. Parties appeared before the arbitrators on 29-8-1949. Enquiries were made by the arbitrators on the 29th, 30th and 31st of August 1949.

6. Finding that civil suit No. 241 of 1948 was barred by time the arbitrators ordered the dismissal of that suit leaving the parties to bear their own costs.

7. In civil suit No. 242 of 1943 the arbitrators awarded Moti Ram a decree for rupees 3,000/- leaving the parties to bear their own costs.

8. By award, Exhibit C. W. 1/1, the arbitrators decided the dispute between the parties in relation to properties which were not the subject-matter of civil suits Nos. 241 and 242 of 1948. In the three matters referred to above awards were given on 28-9-1949.

9. Moti Ham plaintiff objected to the awards in civil suits Nos. 241 and 242 of 1948. Defendants resisted the objections & on the pleadings of the parties the Court fixed the following issues:

'1. Are the arbitrators guilty of judicial misconduct as mentioned in the objections of the plaintiff? 2. Are the objections time barred?'

10. By orders passed on 20-6-1950, the Court has found that the objections were within time and that the arbitrators were not guilty of judicial misconduct.

11. In Civil suits Nos. 241 and 242 of 1948 awards were filed in the Court of Lala Hira Lal, Subordinate Judge 1st Class, Rohtak, whereas award, Exhibit C. W. 1/1, was filed in the Court of the Senior Subordinate Judge, Rohtak.

12. In the Court of the Senior Subordinate Judge, Moti Ram objected to the award on grounds detailed in para. 4 of the order under appeal. Finding that there was no proof that the award, Exhibit C. W. 1/1, was the award given by Babu Jogi Das and Babu Shambhu Dial, the Senior Subordinate Judge dismissed the application for filing the award leaving the parties to bear their own costs. That order was passed on 29-1-1951.

13. First Appeal from Order No. 46 of 1951 and Civil Revision No. 255 of 1951 are directed against the order passed by the Senior Subordinate Judge on 29-1-1951, whereas F. A. O. No. 88 of 1952 and F, A. O. No, 39 of 1952 are appeals from orders passed by the Court on 20-6-1950, in civil suits Nos. 241 and 242 of 1948.

14. In F. A. O. No. 46 of 1951 I found that the case comes within Rule 27 (1) (b) of Order XLI of the Code and examined Ram Rachhpal on the execution of the award, Exhibit C. W. 1/1.

15. Ram Rachhpal C. W. 1 produced his register wherein at serial No. 332 dated 28-9-1949, the award, Exhibit C. W. 1/1, is entered. Ram Rachhpal gave evidence that Babu Jogi Das and Babu Shambhu Dial signed the award Exhibit C. W. 1/1, in his presence and also put their signatures against the relevant entry in his register. Ram Rachhpal was not cross-examined.

16. On 18-4-1952, Chaudhry Roop Chand stated that Moti Ram plaintiff did not wish to adduce evidence to show that the award) Ex. C. W. 1/1, was not the award given by Babu Jogi Das ana Babu Shamonu Dial arbitrators. Indeed, Moti Ram does not dispute the factum of the award, exhibit C. W. 1/1, but maintains that the arbitrators misconducted themselves & the proceedings.

17. In these proceedings the correctness of the finding given by the Court in civil suits Nos. 241 and 242 of 1948 that the objections were within time is not disputed. That being so, the point that arises for decision in F. A. p. No. 88 of 1952 and F. A. O. No. 89 of 1952 is whether the arbitrators misconducted themselves or the proceedings.

18. In F. A. O. 46 of 1951 Chaudhry Roop Chand urges a double barrelled objection to the order under appeal. In the first place it is said that the Senior Subordinate Judge had no jurisdiction over the arbitration proceedings. In the second place, it is said that the rinding of the Court that the arbitrators did not misconduct themselves and the proceedings is erroneous.

19. In arguments it is said that inasmuch as Babu Jogi Das arbitrator made an application in the Court of Lala Hira Lal, Subordinate Judge, Ist Class, on 17-8-1949, that Court alone has jurisdiction over the arbitration proceed-ings. In my opinion, the objection as to jurisdiction does not come within Section 31 (4) of the Act. Section 31 (4) of the Act reads: 'Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, where in any reference 'any application under this Act' has been made in a Court competent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings & all subsequent applications arising out of that reference and the arbitration proceedings shall be made in that Court and in no other Court.'

20. In order to bring the case within Section 31 (4) of the Act it has to be shown that in the reference in question 'an application under the Act' was made in the Court of Lala Hira Lal Jain. On 17-8-1949, Babu Jogi Das applied in the Court of Lala Hira Lal Jain that the parties may be informed that the arbitrators will enquire into the disputes between the parties on 29-8-1949, and that the parties, if advised, may summon witnesses for 29-8-1949. The question that arises for decision is whether the application made on 17-8-1949, was an application under the Act.

21. Section 43 (1) of the Act provides that the Court shall issue the same processes to tho parties and the witnesses whom the arbitrator or umpire desires to examine as the Court may issue in suits tried before it. In my judgment Section 31(4) of the Act refers to applications made under the 'express' provisions of the Act and does not refer to application made under the Code of Civil Procedure read with Section 43 (1) of the Act. The point under consideration is untouched by direct authority but falls within the principle underlying the decision given in --'Ramesh Chand v. Dr. Shyam Lal', AIR 1946 All 34 (FB). In this connection reference may also be made to -- Sri Krishen v. Radha Ki-shen', AIR 1952 All 652 (D.B.).

22. Section 41 of the Act read with Sch. 2 provides that the Court shall have power to appoint receiver. Section 39 of the Act provides that appeals shall lie from orders specified in that section and from no other orders. Notwithstanding the provisions of Section 39 when a Court appoints a receiver in arbitration proceedings an appeal is competent from that order under Order XLIII, Rule 1 (s), Civil P. C. For authority -- 'Mst. Chandra Wat v. Jagan Nath Singh', AIR 1925 Lah 489, may be seen.

23. For the foregoing reasons, I find that the application made by Babu Jogi Das on 17-8-1949, was 'not an application under the Act.' (The rest of the judgment is not material for purposes of reporting--Ed.).


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