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Balu Mal Vs. J.P. Chandani and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. Nos. 1573 and 1574 of 1972
Judge
Reported inAIR1977Raj14
ActsArbitration Act, 1940 - Sections 13, 14, 15, 16 and 41; Code of Civil Procedure (CPC) - Order 13, Rule 9; Registration Act, 1908 - Sections 23, 25, 30 and 87; Limitation Act; Constitution of India - Articles 226 and 227
AppellantBalu Mal
RespondentJ.P. Chandani and ors.
Appellant Advocate M.B.L. Bhargava and; S.N. Bhargava, Advs.
Respondent Advocate L.R. Mehta, Adv. for Respondents Nos. 3 and 4 in Civil Writ Petition No. 1574 of 1972
DispositionPetitions dismissed
Cases ReferredManindra Land and Building Corporation Ltd. v. Bhutnath Banerjee
Excerpt:
- industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time employees. the ex abundante cautela use of the words either whole time or part time by the legislature in the definition of working journalist in the working journalists and other newspaper employees (conditions of service and miscellaneous provisions) act, 1955, does not mean that the definition of workman in the prior act i.e. industrial disputes act, 1947 intended to exclude part-time employees from the definition of workman. the expression part time has nothing to do with the nature of appointment, but it only regulates the.....orderd.p. gupta, j.1. these two writ petitions arise out of the same set of facts and, therefore, it would be convenient to dispose them of by a common order. the case of the petitioner is that he and his son suresh kumar had some dealings in partnership with dr. khet lakhani and his son suresh kumar (respondents nos. 3 and 4 in s. b. civil writ petition no, 1574 of 1972). in order to resolve the disputes which arose between the aforesaid parties relating to their partnership business, three persons, namely shri j. p. chandani, shri chandan gir and shri daulat ram were appointed as arbitrators for effecting dissolution of partnership, rendition of accounts and division of assets, including moveable and immovable properties, alleged to be belonging to the partnership. two of the aforesaid.....
Judgment:
ORDER

D.P. Gupta, J.

1. These two writ petitions arise out of the same set of facts and, therefore, it would be convenient to dispose them of by a common order. The case of the petitioner is that he and his son Suresh Kumar had some dealings in partnership with Dr. Khet Lakhani and his son Suresh Kumar (respondents Nos. 3 and 4 in S. B. Civil Writ Petition No, 1574 of 1972). In order to resolve the disputes which arose between the aforesaid parties relating to their partnership business, three persons, namely Shri J. P. Chandani, Shri Chandan Gir and Shri Daulat Ram were appointed as Arbitrators for effecting dissolution of partnership, rendition of accounts and division of assets, including moveable and immovable properties, alleged to be belonging to the partnership. Two of the aforesaid three Arbitrators, namely Shri J. P. Chandani and Shri Chandan Gir are alleged to have given an ex parte award on March 29, 1972.

The aforesaid two Arbitrators are further alleged to have submitted an application on March 29, 1972 Itself in the court of the Sub-divisional Officer, Jodhpur praying that the so-called award be made a Rule of the court and a decree be passed in accordance therewith. The original award was also produced by the two Arbitrators before the Sub-divisional Officer, Jodhpur along with their application dated March 29, 1972, The above mentioned application was apparently made under Section 14 of the Arbitration Act, although no specific provision was referred to in the application itself. The petitioner's case further is that on coming to know that the so-called award was presented by the aforesaid two Arbitrators in the court of the Sub-divisional Officer, Jodhpur, he appeared before the Sub-divisional Officer and raised a preliminary objection in respect of the jurisdiction of that court to entertain the application under Section 14 of the Arbitration Act or to proceed to pass a decree in accordance with it, on the ground that the same could be done only by a Civil Court.

The Sub-divisional Officer, Jodhpur by his order dated May 1, 1972 rejected the aforesaid preliminary objection raised by the petitioner before it in respect of the jurisdiction of that Court to entertain the application of the two Arbitrators. The petitioner felt aggrieved against the aforesaid order of the Sub-Divisional Officer and filed a writ petition in this court (being S. D. Civil Writ Petition No. 1120 of 1972) challenging the said order on the ground that the Sub-divisional Officer had no jurisdiction to take any proceedings in the matter, being a revenue court. In that writ petition this Court passed an ad interim order of June 12, 1972, staying further proceedings before the Sub-divisional Officer.

By an order dated August 7, 1972, this court further directed that the writ petition itself be listed for hearing and also ordered that the ad interim stay order passed on June 12. 1972, would continue. Ultimately by its order dated October 31, 1972, this court allowed the writ petition No. 1120 of 1972 filed by the petitioner and held that an application could be filed by the Arbitrators, seeking to make their award a rule of the Court, only in a court having civil jurisdiction and the Sub-divisional Officer, Jodhpur being a revenue court had no jurisdiction to entertain such an application. Consequently the order passed by the Sub-divisional Officer, Jodhpur on May 1, 1972, holding that he had jurisdiction to entertain the application filed by the two Arbitrators to make their award the rule of the Court was quashed.

2. During the pendency of the aforesaid writ petition No. 1120 of 1972 in this court, it appears that the two Arbitrators, who had filed the award in the court of the Sub-divisional Officer on March 29, 1972, along with an application for making it a rule of the court, submitting another application before the Sub-divisional Officer, Jodhpur on August 23, 1972, stating that the award was required to be registered under S. 17(2) of the Indian Registration Act and that the original award may as such be returned to them for getting the same registered. The Sub-divisional Officer, on the very same day, it appears, returned the award to the two Arbitrators. Shri J. P. Chandani and Shri Chandan Gir, and a receipt in token of having obtained the original award was obtained from them on the application dated August 23, 1972.

The aforesaid two Arbitrators thereafter on that very day produced the original award before the District Registrar, Jodhpur along with an application under Section 25 of the Registration Act praying that the delay in producing the original award for registration be condoned and that the same may be registered. The District Registrar on August 23, 1972. itself condoned the delay under Section 25 of the Registration Act, imposing a fine of Rs. 40/- for late presentation of the award and directed that further proceedings regarding registration be taken after payment of the aforesaid amount of fine.

3. The application submitted by the two Arbitrators before the District Registrar, Jodhpur under Section 25 of the Registration Act on August 23, 1972 along with the order passed thereon is reproduced hereafter, as considerable arguments have been advanced by the learned counsel for the parties in respect of this application and the order passed on it:--

'Before the District Registrar, Jodhpur. Application u/s. 25 of the Registration Act. Award was filed in court of S. D. O.. Jodhpur on 29-3-1972. Immediately after filing the award one of the Arbitrators was out of Jodhpur hence it could not be presented for registration.

It is submitted that the delay of about 25 days may kindly be condoned and it be registered.

Jodhpur Sd/- J. P. Chandani23-8-72. Arbitrator. Sd/- Goswami Chandan Gir

Dt. 23-8-1972.'

(In Hindi)

Registration

Presented by Shri J. P. Chandani. Report be submitted.

Sd/- Daya Shanker

23-8-72.

Sir,

This award was executed on 29-3-72 and should have been presented by 28-7-72 according to Section 23, but it has been submitted today i.e. after a delay of 25 days. The document can be registered after condonation of delay and payment of fine not exceeding ten times of the Registration fees as per Section 25. The Registration fees in this case will be Rs. 20/-.

Submitted.

Sd/-

Rs. 40/- fine is imposed. After payment of fine of Rs. 40/- (Rupees forty only) delay be condoned, u/s. 25 of the Registration Act and then action be taken for registration.

Sd/- Daya Shanker

23-8-72.'

4. The petitioner felt aggrieved by the order passed by the Sub-divisional Officer, Jodhpur returning the original Award to the two Arbitrators and the order passed by the District Registrar, Jodhpur under Section 25 of the Registration Act. condoning the delay in presentation of the original Award for registration and has filed the two writ petitions in this Court. Writ Petition No. 1574 of 1972 is directed against the order passed by the Sub-divisional Officer, Jodhpur dated August 23, 1972, returning the original Award to the two Arbitrators, while the Writ Petition No. 1573 of 1972 has been submitted against the order passed by the District Registrar, Jodhpur on August 23, 1972, accepting the original Award for registration and condoning the delay in the presentation thereof for registration and it has also been prayed that the District Registrar be restrained from taking further steps in connection with the registration of the Award, in pursuance of his order dated August 23, 1972.

However, it appears that during the pendency of the aforesaid writ petitions the Award was registered and the petitioner thereafter submitted an application seeking to amend the relief prayed for in his Writ Petition No. 1573 of 1972 by adding a further prayer to the effect that the Award which was later on registered on the basis of the order of the District Registrar dated August 23, 1972, may be declared as void and incapable of operating as a registered document. This application for amendment was allowed by this Court by its order dated September 24. 1973.

5. Now the first submission, which has been made by the learned counsel for the petitioner in these two writ petitions is that the two Arbitrators, Shri J. P. Chandani and Shri Chandan Gir, became functus officio as soon as they signed the Award or at least soon after presenting the Award in the court of the Sub-Divisional Officer along with an application, purporting to be under Section 14 of the Arbitration Act, for making the award the Rule of the court. Learned counsel argued that the two Arbitrators having thus become functus officio, could thereafter neither take away the Award from the court of the Sub-divisional Officer, Jodhpur, nor the Sub-Divisional Officer could return the original award to the aforesaid two Arbitrators, nor the two Arbitrators could subsequently present the original award for registration before the District Registrar, along with an application under Section 25 of the Registration Act. Learned counsel for the petitioner placed reliance in support of his aforesaid submission on the decision of their Lordships of the Supreme Court in Rikhabdass v. Bal-labhdas, AIR 1962 SC 551 and the decisions in Mt. Parbati v. Mt. Durga Devi, AIR 1928 Lah 170 and Srinivasa Rao v. Venkata Narasimha Rao, AIR 1963 Andh Pra 193.

6. Tek Chand J. in Mst. Parbati's case, AIR 1928 Lah 170 observed that the proposition of law was firmly established that an arbitrator became functus officio as soon as he delivered the award. It was also observed by the learned Judge that after the delivery of the award, the reference made to the arbitrator was exhausted and the authority of the arbitrator was at an end and he was not at liberty to exercise his mind afresh in the case and to deliver another award. In the aforesaid case it was held that when the Arbitrator at a private arbitration had delivered an award, the court could not make another reference to the arbitrator, as the arbitrator had entered upon his duties and had already delivered the award, though not through the agency of the court.

7. In Srinivasa Rao's case (AIR 1963 Andh Pra 193) it was held, following the decision of their Lordships of the Supreme Court in Rikhabdas's case, (AIR 1962 SC 551), that the Arbitrators became functus officio as soon as they signed the award. In that case the question arose as to whether the Arbitrators were entitled to rewrite the award, which was unstamped, subsequently on a duly stamped paper. In Rikhab Dass's case the question which arose for consideration was as to whether the award which was unstamped and unregistered could be remitted to the Arbitrator by the court with a direction to rewrite the same on a stamped paper and resubmit to the court. In that case, their Lordships of the Supreme Court were pleased to observe that the award having already been made, the arbitrator had become functus officio and that in case an award is remitted to him for rewriting the same on a stamped paper, it would involve the preparation of a fresh award on a stamped paper. Their Lordships held that under Section 16 of the Arbitration Act an award could be remitted to the arbitrator by the court for purposes of reconsideration but want of stamp or registration were defects de hors the award or the decision of the arbitrator.

It was, therefore, held that Sec. 16 was not applicable and an award could not be remitted to the arbitrator under the aforesaid provisions. It was also held by their Lordships in the aforesaid case that neither Section 13(d) nor clauses (b) and (c) of Section 15 of the Arbitration Act were applicable in such a case, as there was no question of correction of any clerical mistake or accidental slip in the award, nor the Court could compel the arbitrator to exercise the powers under Section 13 (d). Moreover, the omission to submit the award for registration or get the same registered could not be termed as clerical mistake or accidental slip in the award itself. Their Lordships also observed that if the award required to be stamped, Section 151 C.P.C. did not give the court any power to direct the arbitrator to make a fresh award. Their Lordships consequently set aside the order passed by the Division Bench of the High Court remitting the award to the arbitrator under Section 16(c) of the Arbitration Act with the direction to get the same stamped and registered. However, their Lordships were pleased to make the following observations:

'We, therefore, think that the Division Bench was in error in thinking that an order could be made remitting the award to the arbitrator with a direction to rewrite it on a stamped paper and re-submit it to court. That is the only point that we decide in this case.'

8. Thus from the aforesaid decision it is firmly established that the arbitrator, having made and signed the award, becomes functus officio in the sense that he could not make any change in the substance of the award and that the court could not remit the award to the arbitrator, if the same is unstamped, to rewrite it on a stamped paper, either under the provisions of Section 13(d) or Section 16(c) or Section 15(b) or (c) of the Arbitration Act or even under Section 151 of the Code of Civil Procedure, as rewriting the award on a stamped paper would result in the preparation of another award and the arbitrator could not as such be permitted to make a fresh award.

9. In Juggilal Kamlapat v. General Fibre Dealers Ltd., AIR 1962 SC 1123, their Lordships of the Supreme Court were pleased to further examine the matter and made the following observations:

'It is true that generally speaking, an arbitrator is functus officio after he has made the award; but this only means that no power is left in the arbitrator to make any change of substance in the award that he had made (except in certain circumstances which have been provided in the law).-----We have already said that generally speaking, the arbitrator becomes functus officio after he has given the award; but that does not in our opinion mean that in no circumstances can there be further arbitration proceedings where an award is set aside or that the same arbitrator can never have anything to do with the award with respect to the same dispute. Section 13(d), for example, gives power to the arbitrator for reconsideration. Therefore, when it is said that the arbitrator is generally functus officio after he has made the award, it only means that he cannot change that award in any matter of substance himself.'

10. I may observe here that the view taken by Tek Chand J. in Mst. Par-bati's case, (AIR 1028 Lah 170) has not been accepted by their Lordships of the Supreme Court in Juggilal's case (AIR 1962 SC 1123) to the extent it was held in the earlier case that even if an award is set aside, the arbitrator becomes fun-ctus officio and consequently he could not enter into a further reference in respect of the dispute decided by the award.

11. In Puthiyapurayil Pocker v. V Khalid, AIR 1974 Ker 121 a Division Bench of the Kerala High Court, following the decision of their Lordships of the Supreme Court in Juggilal's case (AIR 1962 SC 1123), held that after the award was made and signed by the arbitrator, he became functus officio to the extent the dispute was decided by him and that decision was final so far as he was concerned. But in case of an award relating to partition of immoveable properties, it is for the arbitrator to get the award registered so as to make his decision effective and binding upon the parties. It was observed in that case that registration must necessarily always be a subsequent act to the making of the award and was unlike the preparation of an award on stamped paper, which should precede the making and signing of the award itself. It was, therefore, held that the arbitrator after making and signing the award did not become functus officio for the purposes of getting the award registered. In the Kerala case, referred to above, it was held that the act of getting the award registered was a ministerial act and could be done by the arbitrator after he had made and signed the award. 12. In Champalal v. Mst. Samra-thbai. AIR 1960 SC 629 the award was filed in the Court cf First Additional District Judge, but as the same was unregistered, the Court handed over the award, on the request of the parties, to an attorney of the arbitrators for getting the same registered. A submission was made before their Lordships of the Supreme Court in the aforesaid case that the award which required registration but was not registered when it was presented in Court under Section 14 of the Arbitration Act could not be clothed with legality by the fact that it was subsequently returned and was registered thereafter. Thetr Lordships repelled this contention and held that in case the unregistered award was filed by the arbitrators before the Court, its subsequent registration was not invalid as the filing of an unregistered award under Sec. 49 of (he Registration Act is not prohibited, but what was provided by that provision was that such an award could not be taken into evidence so as to affect immovable properties, falling under Section 17 of the Registration Act.

The subsequent registration of the award did not affect the legality of registration. It must be observed here that in the aforesaid case the procedure adopted was almost similar to the one adopted in the present case, namely that after the award was filed in the Court, the same was returned to the attorney of the Arbitrators to get it registered and the attorney of the arbitrators presented the said award for registration before the Sub-Registrar and after due registration the award so registered was re-presented in the Court. No illegality in the registration of the award registered in the above manner was held to have been caused by their Lordships of the Supreme Court in ChampalaPs case, (AIR 1960 SC 629). Of course, no specific objection to the course adopted in that case, of returning the award to the arbitrators for getting the same registered, was expressly taken before their Lordships.

13. In Aditya Kumar v. Narayan-das, AIR 1971 Cal 65, an unregistered award was filed in Court and on an objection being taken that the award required registration, the subordinate Judge returned the same to the arbitrator with an undertaking that he would refile the same in that Court after getting the award registered. A revision was filed before the Calcutta High Court against the aforesaid order and it was held by the High Court that the trial Court should have first decided as to whether the award required compulsory registration and on that ground the order passed by the subordinate Judge was set aside and he was directed to decide the objection as to whether the award required registration and 'then decide what course it should adopt in finally disposing of the matter.' The Subordinate Judge thereafter held that the award was com-pulsorily registrable and no decree could be passed in accordance therewith.

In an appeal against the final order passed in that case, it was argued that even if the award was compulsorily registrable and as such the unregistered award could not be taken into evidence for passing a judgment and decree in accordance therewith, the same could be returned to the arbitrator for getting it registered, as was done in Champalal's case, (AIR 1960 SC 629). This contention was not accepted by their Lordships of the Calcutta High Court on the ground that a period of more than four months had elapsed then, from the date on which the award was signed by the arbitrator and thus the award could not be registered at that time under the provisions of the Registration Act in view of Section 25 of the Registration Act. It cannot be said from the aforesaid decision that their Lordships of the Calcutta High Court expressly decided either way, as to whether the award could be returned to the arbitrator for getting the same registered, after it had once been filed in court under Section 14 of the Registration Act.

14. In Hemraj v. Surajmal, AIR 1972 Raj 155 an award was submitted by the arbitrator in the Court of the Additional District Judge, Ajmer, but later on one of the arbitrators made an application to the Court praying that the award required registration and may be handed over back to him to get it registered or may be got registered through an officer of the Court. The learned Additional District Judge, after hearing the parties, allowed the application and returned the award to one of the arbitrators for getting the same registered. Thereafter one of the parties submitted an application before the Additional District Judge, under Section 151 C.P.C. urging that the award could not be returned for registration.

This application was rejected by the Additional District Judge, and a revision petition was preferred before this Court under Section 115 C.P.C. against the last mentioned order. It was argued before this Court that there was no provision in the Arbitration Act authorising the Court to return the award to the arbitrator. The learned Single Judge of this Court, who decided the revision petition held that while under Sections 13 and 16 of the Arbitration Act the award could not be returned to the arbitrators for the purpose of getting the same registered, there was no provision in the Arbitration Act prohibiting the return of the award for registration and as such the course adopted by the learned Additional District Judge was not without jurisdiction.

15. On a thoughtful consideration of all the cases referred to above, I am of the view that the proposition that the arbitrator became functus officio after making and signing of the award only refers to the power of the arbitrator to vary the award or its contents. The arbitrator has no power left, after he has made and signed the award, to make any change of substance in the award that he has made, subject to the provisions of Sections 13, 15 and 16 of the Arbitration Act. Similarly, the arbitrator could not substitute a new award in place of the original award made and signed by him by preparing another award on a stamped paper subsequent to the making and signing of an unstamped award. But the arbitrator has undisputed power to do ministerial acts in furtherance of the award. One such act is the presentation of the award under Section 14 of the Arbitration Act, either on the request of one of the parties to the dispute or on a direction by the Court or even suo motu.

The presentation of the award in a Court under Section 14 of the Arbitration Act by an arbitrator must be an act subsequent to the making and signing of the award and it is the arbitrator alone who is empowered under Section 14 of the Arbitration Act to do such an act. Similarly the act of presenting the award for registration and getting the same registered is an act which can be performed by the arbitrator only subsequent to the making and signing of the award. If the award relates to immoveable property or affects rights in immoveable property then an unregistered award would not be admissible in evidence and coulc not be made a rule of the court in proceedings under S. 14 of the Arbitration Act. In presenting the award for registration the arbitrator, in my view, only performs a ministerial function, as he neither changes the substance of the award nor even the original award is varied in any respect.

I am in respectful agreement with the view taken by the Division Bench of the Kerala High Court in Puthiya-pureyil Pocker's case, (AIR 1974 Ker 121) and held that in the present case the arbitrators acted within their authority in presenting the Award for registration, after making and signing the same.

16. The further question that requires consideration in this case is as to whether the Arbitrators became functus officio after they had presented the Award in the Court of the Sub-divisional Officer along with an application purporting to be under Section 14 of the Arbitration Act. In the case of an award which is compulsorily registrable, as it creates or affects rights or interests in immoveable property, and which cannot be received in evidence without registration on account of the provisions of Section 17 of the Registration Act, the arbitrator is empowered to get the same registered, subsequent to the making and signing of the same. In such a case no valid exception could be taken if the unregistered award is presented in Court under Section 14 of the Arbitration Act and on an objection being taken by any one of the parties or on subsequent realisation, the Arbitrator requests the Court to return the award so as to allow him to get the same registered with an undertaking to, re-present the said award in the court after due registration. Learned counsel for the petitioner argued that once the award was submitted by the Arbitrator under Section 14 of the Registration Act, he became functus officio and thereafter he had nothing to do with the award. I am unable to accept this broad contention because in relation to the matter of registration of the award, it cannot be held that the Arbitrator became functus officio merely because of an erroneous presentation of the unregistered award, under Section 14 of the Arbitration Act. The fact as to whether the award was presented by the Arbitrator for registration prior to the filing of the same in court under S. 14 of the Arbitration Act or the same is taken back by him from the Court in which it is presented under S. 14 of the Arbitration Act within an undertaking to represent the same after it was registered, cannot make any difference, so far as the power of the Arbitrator of getting the award registered is concerned. If in a case, an award which is compulsorily registrable is presented by the Arbitrator under Section 14 of the Arbitration Act before the Court then, as hold by their Lordships of the Supreme Court in Champa Lal's case, (AIR 1960 SC 629), the filing of such an award is not prohibited, but such an award could not be taken into consideration or given effect to for the purpose of affecting the rights of parties in immovable property and it could not be made a rule of the court. But if such an award could be got registered then no illegality could be attached to the act of registration of that award. The contention of the learned counsel for the petitioner is that there is no provision in the Arbitration Act permitting the return of the award to the Arbitrator for the purposes of getting the same registered. Section 41 of the Registration Act makes the provisions of the Civil Procedure Code applicable to the proceedings under the Arbitration Act, subject to the provisions of that Act. In the absence of any specific provision in this respect in the Arbitration Act, the provisions of Civil Procedure Code will, therefore, apply by virtue of Section 41 of the Arbitration Act, Order 13 Rule 9 C.P.C. authorises the return of a document to any person whether a party to the suit or not, who has produced the document in the Court, after the decision of the suit or even at any time earlier, on the condition that the person applying for the return of the document would deliver a certified copy thereof to be substituted for the original, to the officer with the undertaking to produce the original if required to do so. It is for the court passing an order under Order 13 Rule 9 C.P.C. to exercise its discretion and decide as to whether in a given case and in what circumstances it would permit the return of a document to the person producing the same. But nevertheless the Court has the jurisdic-tion, in a proper case, to return the document produced before it, to the person producing the same, subject to the ful-filment of the conditions prescribed under Order 13 Rule 9 C.P.C. I, therefore, hold that the Sub-Divisional Officer was com-petent to pass an order returning the document, namely the award, to the Arbitrators, who had earlier produced the same before him for the purposes of getting the said award duly registered.

17. There is another aspect of the matter which requires consideration in the present case. The award was admittedly presented in the Court of the Sub-Divisional Officer, Jodhpur by the two arbitrators purporting to act under Section 14 of the Arbitration Act, but the petitioner from the beginning objected to the jurisdiction of the Sub-Divisional Officer to receive the award or to make the same a rule of the Court on the ground that the Sub-Divisional Officer, being a revenue court, was not competent to take proceedings under S. 14 of the Arbitration Act. The preliminary objection raised by the petitioner on this ground was although not accepted by the Sub-Divisional Officer, but the same was ultimately allowed by this Court in the earlier writ petition No. 1120 of 1972 and it was held by this Court that the proceedings before the Sub-Divisional Officer were without jurisdiction. Section 14 of the Arbitration Act contemplates presentation of the award by the Arbitrators in a court of competent jurisdiction and a presentation by the Arbitrators in the present case before the Sub-Divisional Officer, Jodhpur was incompetent as the said officer had no jurisdiction in the matter and it could not be considered to be a valid presentation of the award by the Arbitrators under S. 14 of the Arbitration Act. The argument of the learned counsel for the petitioner that after the presentation of the award in a Court under Section 14 of the Arbitration Act, the arbitrator ceased to be a party to those proceedings and the award could be returned only to the parties affected thereby, cannot apply to the present case, as the presentation of the award by the arbitrators to a Court of incompetent jurisdiction was in law nopresentation at all for the purposes of Section 14 of the Arbitration Act. Learned counsel for the petitioner was asked that in case the award would not have been taken back by the arbitrators from the Court of the Sub-Divisional Officer on August 23, 1972, but it would have been allowed to remain there till October 31, 1972 when the decision of this Court was pronounced in writ petition No. 1120 of 1972. then who would have been entitled to take back the award from the Court of the Sub-Divisional Officer. Learned counsel was unable to give a satisfactory answer. In my view ordinarily the person who has produced a document before a Court, Tribunal or Authority is entitled to obtain the same back, even if the document is held to be inadmissible in evidence or for some other reason could not be received by that Court, Tribunal or Authority. As held by this Court in the earlier writ petition, the Sub-Divisional Officer had no authority to receive the award under Section 14 of the Arbitration Act and as such the arbitrators, who had presented the award before the said officer were entitled to get the award back from the Court of the Sub-Divisional Officer, because it was the duty of the Arbitrators to preserve the award for the benefit of the parties, so long as it was not presented by them in a Court of competent jurisdiction under Section 14 of the Arbitration Act. The Arbitrators thus had the responsibility to maintain the award in safe custody until they handed it over to a Court of competent jurisdiction for being made a rule of the Court. Even in the case of documents which are not admitted in evidence, Order 13 Rule 7 C. P. C. provides that they shall be returned to the persons respectively producing them. I am, therefore, firmly of the view that in the present case, the arbitrators alone were entitled to take back the award from the Court of the Sub-Divisional Officer, Jodhpur, once it was held that he had no jurisdiction to entertain their application under Section 14 of the Arbitration Act. Now, even if it was to be held that the return of the award to the arbitrators by the Sub-Divisional Officer on August 23, 1972 was not authorised by law and as such the Sub-Divisional Officer should be directed to recall the award from the arbitrators, yet as I find that the very same arbitrators are now entitled to the return of the award, after this Court has held that the Court of the Sub-Divisional Officer had no jurisdiction in the matter, then in my opinion, it would be absolutely futile for this Court to pass an order directing the arbitrators to return the award to the Sub-Divisional Officer. The arbitrators would, if they are called upon to produce the said award in the office of the Sub-Divisional Officer, be entitled to the return thereof at once and it would not be proper for this Court to pass such a futile order.

18. I may now consider another question which has been raised in this case. The argument of the learned counsel for the petitioner is that as this Court stayed further proceedings before the Sub-Divisional Officer by its order dated June 12, 1972, passed in the earlier writ petition, neither the Sub-Divisional Officer could have returned the award to the arbitrators on August 23, 1972, nor the arbitrators were competent to take away the award from the Court of the Sub-Divisional Officer at that time, as the said stay order was then in force and in such circumstances the return of award to the arbitrators was wholly void. It was argued by the other side that the handing over of the award by the Sub-Divisional Officer to the arbitrators for the purposes of getting the same registered was only a ministerial act and the same could not be said to be in violation of the stay order passed by this Court. 1 consider it unnecessary to enter into the aforesaid controversy in the present case, because even if it is assumed that the act of handing over of the award by the Sub-Divisional Officer to the arbitrators on their request, for the purposes of getting the same registered, was done in contravention of the stay order passed by this Court and such an act constituted 'proceedings' in the case which was pending before the Sub-Divisional Officer, and if on that basis it is held that the order passed by the Sub-Divisional Officer in returning the award to the arbitrators was illegal, then this Court can pass an order in the nature of a writ of mandamus directing the Sub-Divisional Officer to call upon the arbitrators to re-submit the award which they had taken away from the Court of the Sub-Divisional Officer on August 23, 1972. However, as I have observed above, in view of the subsequent events which have taken place, namely that this Court in writ petition No. 1120 of 1972 has held that the Sub-Divisional Officer has no jurisdiction in the matter and being a Revenue Court he was not authorised to entertain an application under Section 14 of the Arbitration Act, then the said arbitrators were entitled to take the award back from the Court of the Sub-Divisional Officer as soon as they represent the same, even if an order to that effect is passed by this Court and thus it would only result in meaningless proceedings. Even if the Sub-Divisional Officer was to call upon the arbitrators to resubmit the award in his Court, then the arbitrators, while resubmitting the award may apply again that the same may be given back to them, as the proceedings in the Court of the Sub-Divisional Officer proved to be abortive. This Court would not, in these circumstances, issue a futile direction. Of course, it must be observed that Shri Chandani and Shri Chandan Gir, who had applied to the Sub-Divisional Officer for return of the award, for purposes of registration, on August 23, 1972 were made parties to the earlier proceedings in this Court in writ petition No. 1120 of 1972 and they must be well aware of the order of this Court dated June 12, 1972 staying further proceedings before the Sub-Divisional Officer, which was continued by the order dated August 7, 1972 and it was the duty of the aforesaid arbitrators to bring it to the notice of the Sub-Divisional Officer, while making the application for the return of the award, that further proceedings in that Court were stayed and the conduct of the aforesaid two persons in this respect must be deprecated. However, it is unnecessary in the aforesaid circumstances to decide as to whether the return of the award for the purposes of getting the same registered amounted to taking of further proceedings by the Sub-Divisional Officer.

19. The next submission of the learned counsel for the petitioner was that in the present case there was no urgent necessity or unavoidable accident and as none of the aforesaid two conditions was found to exist by the District Registrar while passing the order dated August 23, 1972 condoning the delay in the presentation of the award under Section 25 of the Registration Act, there was total lack of jurisdiction for the exercise of power by the District Registrar under Section 25 of the Registration Act. It was argued that as the preliminary or the jurisdictional fact was erroneously decided by the District Registrar, the order passed by him under Section 25 was invalid and this Court should set aside the order passed by the District Registrar. It was further argued by the learned counsel that this Court had supervisory jurisdiction under Article 227 of the Constitution, which should be exercised in the present case as the order passed by the District Registrar condoning the delay was in utter disregard of the provisions of law. It is necessary to refer to the provisions of the Registration Act in order to appreciate the submission of the learned counsel in this respect. Section 23 of the Registration Act provides that no document, other than a will, shall be accepted for registration unless it is presented for that purpose to a proper officer within four months from the date of its execution. But the provisions of Section 23 are subject to the provisions of Sections 24, 25 and 26. Section 25 authorises the Registrar to direct registration of such document after payment of fine, not exceeding ten times the amount of proper registration fee, in case the document is presented for registration after the prescribed period of four months, owing to urgent necessity or unavoidable accident, provided the delay in such presentation does not exceed a period of four months. Thus the provisions of Section 25 empower the District Registrar to condone the delay in the presentation of a document for registra-tion, for a period of four months, after the expiry of the period of four months from the date of the execution of the said document and he is authorised to exercise his discretion in this matter by imposing a fine not exceeding ten times the amount of proper registration fee. The guidelines for the exercise of the discretion of the District Registrar have also been laid down in Section 25. namely that he may exercise his discretion if the document could not be presented for registration within the initial period of four months from the date of its execution owing to urgent necessity or unavoidable accident. The first question which arises in this respect is as to whether the presence of urgent necessity or unavoidable accident are jurisdictional facts, on the existence of which alone the District Registrar was authorised to entertain an application under Section 25 and condone the delay or they are matters which fall to be decided by the District Registrar within his jurisdiction. It is apparent that the jurisdiction of the Registrar to act under Section 25 of the Registration Act is attracted in case an application is lodged with the Sub-Registrar and the same is forwarded to him within the period of four months after the expiration of the time prescribed in Section 23 of the Registration Act. Thereafter it is discretionary with the Registrar to direct or refuse to direct that such a document, presented for registration after the expiry of the period of four months from the date of its execution, should be accepted for regis-tration. In my view as to whether an urgent necessity or unavoidable accident existed or not in a particular case are matters which entirely fall for decision within the jurisdiction of the District Registrar and they merely provide guidelines for the purposes of exercise of discretion by the District Registrar under Section 25 of the Registration Act. It is only the Registrar who can exercise the power under Section 25 and that power could be exercised by him only if an application for condonation of such delay in the presentation of a document is lodged within the period of four months, after the expiration of the time prescribed under Section 23 of the Registration Act. Once these conditions are fulfilled, then the Registrar has the jurisdiction to decide as to whether in the facts and circumstances of a particular case, the delay in the presentation of the document for registration should be condoned or not. If the Registrar commits a mistake in deciding such a matter, which undoubtedly lies within his jurisdiction, then it cannot be characterised as an error relating to lack of jurisdiction, but it would only amount to an error in the exercise of his jurisdiction or a defect of procedure, which is curable under Section 87 of the Registration Act and would not render the registration of the document invalid. Learned counsel for the petitioner also pointed out that in the present case the application purporting to be under Section 25 of the Registration Act was not lodged with the Sub-Registrar and it was not forwarded by him to the Registrar but it was directly presented by the arbitrators before the District Registrar, along with the award which was sought to be registered and on this ground also it was argued that the conditions specified in Section 25 of the Registration Act were not complied with. In this respect. I may refer to the provisions of Section 30 of the Registration Act, which authorises the Registrar, in his discretion, to receive and register any document which might be registered by any Sub-Registrar subordinate to him.

Thus in case a document is presented for registration before the Sub-Registrar, along with an application under 3. 25 of the Registration Act, after the expiration of the period of four months prescribed in Section 23 of the Registration Act, then the Sub-Registrar is not at all authorised to register such a document, but it is his duty to forward the application for such registration to the District Registrar and it is the Registrar alone who is empowered to pass orders under Section 25 of the Registrat'on Act condoning the delay in the presentation of such a document and directing registration thereof. The same purpose could be achieved if the application under Sec. 25, along with the document sought to be registered, was presented before the District Registrar, to whom the competent Sub-Registrar was subordinate. The provisions of Section 30 would then come into play and there is no illegality on that score in the presentation of the application under Section 25.

20. Learned counsel for the petitioner relied upon certain decisions in support of his contention that the conditions regarding presentation of a document for registration, includ'ng the condition of presentation within time, are matters of jurisdiction and the imperative provisions of the Registration Act were mandatory and must be followed. There could be no quarrel with the aforesaid proposition. In Jambu Prasad v. Muhammed Nawab Aftab Ali Khan, AIR 1914 PC 16 it was observed by their Lordships of the Privy Council that the provisions of Section 32 of the Registration Act relating to the presentation of a document for registration by an agent were imperative and that strict compliance of the imperative provisions of the Registration Act could not be overlooked, as the Sub-Registrar's jurisdiction to register a document arose only in case a document was presented before him for registration in accordance with law. The same principle was enunciated in Chottey Lal v. The Collector of Mora-dabad, AIR 1922 PC 279, wherein their Lordships were pleased to observe:

'The Registration Act has imposed several conditions regulating the presentation of documents for registration, and it is of great importance that these conditions, framed with a view to meet local circumstances, should not be weakened or strained on the ground that they may appear to be exacting and strict.'

21. In that case also the question which arose for consideration related to the presentation of a document for registration by a duly authorised person under Section 32 of the Registration Act.

22. In Ma Pwa May v. Chettiar Firm, AIR 1929 PC 279 their Lordships of the Privy Council while considering the effect of Section 87 on matters relating to registration of documents, made the following observations:

'In seeking to apply this section (section 87 of the Registration Act) it is important to distinguish between defects in the procedure of the registrar and lack of jurisdiction. Where the registrar has no jurisdiction to register, as where a person not entitled to do so presents for registration, or where 'there is lack of territorial jurisdiction, or where the presentation is out of time, the section is inoperative: see Mujibunnissa v. Abdul Ra-him, (1900) ILR 23 All 233 (PC). On the other hand, if the registrar having jurisdiction has made a mistake in the exercise of it, the section takes effect. Their Lordships have no doubt that the mistake is an error in procedure.'

In the case before their Lordships, a document which was not duly stamped was admitted for registration and the question arose as to whether the Registrar has no jurisdiction to register such a document. Their Lordships of the Privy Council treated the aforesaid mistake in respect of the inadequacy of stamp as one of procedure, which was condonable under Section 87 of the Registration Act It was observed by their Lordships that it was no doubt the duty of the registering officer to scrutinise the stamp and pass an order relating to its adequacy, but if a mistake was made in respect of the amount of stamp required and the document was admitted for registration, it should not be treated as having no effect years afterwards. From the aforesaid decision, it not doubt appears that the presentation of a document for registration out of time is a defect relating to the lack of jurisdiction of the sub-registrar to register the document and it is similar to cases where a person not entitled to do so presents a document for registration or where there is lack of territorial jurisdiction in the Sub-Registrar to register the document. The cases cited by the learned counsel for the petitioner are similar to those referred to by their Lordships of the Privy Council in Ma Pwa May's case wherein the document was presented for registration before a Sub-Registrar after the period of four months prescribed for the purpose under Section 23 of the Registration Act.

23. Learned counsel for the petitioner relied upon the undermentioned observations made in Ramaswami Chettiar v. Sriniwasa Pillai, AIR 1934 Mad 113:

'This cannot be considered as urgent necessity or unavoidable accident. It is only when one of these two conditions is alleged and made out that the Registrar can exercise his discretion at all.'

From the aforesaid observations ii cannot be concluded that the existence of urgent necessity or unavoidable accident are matters relating to the jurisdiction of the Registrar for exercise of his power under Section 25. In my opinion, these are matters which the Registrar is required to decide, while exercising the discretion vested in him under S. 25, in the exercise of his jurisdiction under the aforesaid provisions. It may be pointed out here that in Rama Swami Chettiar's case, AIR 1934 Mad 113, even the aforesaid observations are obiter as their Lordships of the Madras High Court observed in that case that it was unnecessary for them to consider whether any suit would lie under Section 77 against the discretion exercised by the Registrar under Sec. 25 in condoning or refusing to excuse the delay in the presentation of a document.

24. In U. Aung Din v. Maung Aung Myint, AIR 1933 Rang 194 it was found from the certificate of registration that the document in question was presented for registration after the expiry of the time prescribed under Section 23 of the Registration Act and in these circumstances it was held that the registration of the document which was presented out of time was invalid. It was observed in that case by the learned Judge of the Rangoon High Court that:--

'No attempt was made at the hearing of the suit, pursuant to Section 25 to account for the delay in presentation on the ground of urgent necessity or unavoidable accident and there was no evidence that U. Chitty, the agent of Aung Din, the mortgagee, who presented the document for registration on 5th February 1923, was justified in presenting it more than four months after it was executed.'

Thus recourse to proceedings under Section 25 did not take place in the aforesaid case.

25. A similar situation also arose in Nandeswar Chakravarty v. Mahendra Nath Sarina, AIR 1956 Assam 123 as in that case also there was no material to show that the procedure laid down in Section 25 of the Registration Act was complied with. It was held, in these circumstances, that in the absence of evidence that the mandatory procedure under Section 25 of the Registration Act was followed, the registration of the document in question was void.

26. Thus in each one of the above cases, relied upon by the learned counsel for the petitioner, the procedure prescribed under Section 25 of the Registration Act was not at all followed and as the document in question was presented for registration after the period of four months prescribed in Section 23 of the Registration Act, it was held that there was lack of jurisdiction and the registration was void. In my view, the cases cited by the learned counsel for the petitioner are clearly distinguishable inasmuch as in the present case recourse was taken to proceedings under Section 25 of the Registration Act. The two arbitrators presented an application before the District Registrar purporting to be under Section 25 of the Registration Act and the District Registrar passed an order thereon condoning the delay in the presentation of the award after imposition of fine and ordered that proceedings for registration be taken on payment of the amount of fine. Learned counsel for the petitioner then submitted that if either urgent necessity or unavoidable delay was not established, then the order purporting to have been passed by the District Registrar under Section 25, was a nullity and it should be considered as if no order under Section 25 of the Registration Act was at all in existence in the case. In the facts and circumstances of the present case, I am unable to agree with the aforesaid contention of the learned counsel, inasmuch as whether sufficient cause for condonation of delay in the presentation of the doucument for registration was made out or not was a matter entirely within the discretion of the District Registrar. It was for him to decide in his discretion as to whether urgent necessity or unavoidable accident was proved to exist or not and even if it is assumed that he came to an errone-ous conclusion in respect of the exist-ence of one of the aforesaid circumstances, it would only amount to an error in the exercise of jurisdiction and not a matter of lack of jurisdiction. Learned counsel for the petitioner vehemently urged that the District Registrar did not give reasons in his order as to whether the urgent necessity or unavoidable accident was found proved by him. It was for the Registrar to decide as to whether the delay was properly explained and there was reason to direct the registration of the document which was presented to him within the period permissible under Section 25 of the Registration Act and if any error was committed by the District Registrar in the exercise of his discretion in that matter then the same would amount merely to a defect of procedure, which is curable under S. 87 of the Registration Act. Such a decision condoning the delay under Section 25 of the Registration Act, even if erroneous, cannot invalidate the registration of the document.

27. In Durga Singh v. Mathura Das, (1884) ILR 6 All 460 an application for registration was presented before the Sub-Registrar after the expiry of the period allowed by law for registration, who forwarded the same to the Registrar. The Registrar passed an order directing that the document should be accepted for registration on the payment of the prescribed fine. The fine was paid and thereafter the successor Registrar held that the document could not be registered inasmuch as it was not presented for registration within the time allowed by law and overruled his predecessor's order. In a suit filed under Section 77 of the Registration Act praying for a decree directing registration, it was held by their Lordships of the Allahabad High Court that an order, given under Section 24 of the Registration Act. 1877 which was analogous to Section 25 of the Indian Registration Act, 1908 and in pursuance of the discretionary power allowed to the Registrar to accept documents for registration after the prescribed time, was a valid order and the successor of the Registrar was not competent to go behind the same.

28. In Tullockchand Harnath v. Gokulbhoy Mulchand, (1897) ILR 21 Bom 724 it was held that the direction of the Registrar under Section 24 of the Registration Act of 1877 that a document be accepted for registration was a valid order and the propriety of that direction could not be inquired into by a Court in a suit under Section 77 of the Registration Act. It was observed by their Lordships of the Bombay High Court that it it is found that the direction has been given by the Registrar it will be assumed that the Registrar made the direction on the grounds that appeared to him to be sufficient. Once the direction is given and the fine has been paid, the requirement of the law of registration will be considered to have been complied with. It was observed in the aforesaid case that if the Registrar was willing to direct a document for registration without any enquiry, it was not incumbent on the applicant to assign the reasons foi delay.

29. In my view, the provisions of Section 25 of the Registration Act are similar in nature to the provisions of Section 5 of the Limitation Act, whereby the delay in presentation could be condoned by the Registrar in the case of Section 25 of the Registration Act and by a Court under Section 5 of the Limitation Act and the existence of urgent necessity or unavoidable delay under one provision or the existence of sufficient cause under the other provision are matters which are discretionary for the exercise of the powers under the afore-said provisions and cannot be termed as jurisdictional facts.

30. The question of condonation of delay under Section 5 of the Limitation Act on the basis of the existence of sufficient cause came up before their Lordships of the Supreme Court in Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee, AIR 1964 SC 1336, and it was canvassed before their Lordships that a finding recorded by a lower Court on an application under Section 5 of the Limitation Act or under Order 22 Rule 9 (2), C.P.C. involved the question of jurisdiction and was revisable under Section 115, C.P.C. by the High Court. Their Lordships of the Supreme Court made a distinction in cases of erroneous decision on the question of limitation and an erroneous decision on the question of sufficient cause under Section 5 of the Limitation Act. It wag pointed out by their Lordships in the aforesaid case that under Section 3 of the Limitation Act it was the duty of the Court not to proceed with a suit or an appeal or application, if it was filed or made beyond the period of limitation prescribed by law and the Court had no choice in the matter and if the necessary provisions of the Limitation Act were erroneously construed then a question of jurisdiction necessarily arose. However, their Lordships observed that in cases where it is left to the Court itself to determine certain matters as a result of which the Court has to pass a certain order, then it is not a case where the Court decides a question pertaining to its jurisdiction, but it decides that question within its jurisdiction. The distinction between matters pertaining to the jurisdiction of a court and those which the Court is called upon to decide within its jurisdiction has been clearly brought out by their Lordships of the Supreme Court in Manindra Land and Building Corporation's case (AIR 1964 SC 1336) wherein it was observed that while an erroneous decision on the question of limitation under Section 3 of the Limitation Act leads the Court to assume or not to assume jurisdiction in that matter, yet under Section 5 of the Limitation Act the Court is empowered to admit an application, to which its provisions are applicable, even when presented after the expiry of the specified period of limitation, if it is satisfied that the applicant had sufficient cause for not presenting it within time. Thus the question whether there was sufficient cause or not for making the application within time is one which the Court has jurisdiction to determine and an erroneous determination of such a question is not a matter pertaining to the lack of jurisdiction of the Court, but only relates to the exercise of its discretion. In my humble opinion, the provisions of Sections 23 and 25 of the Registration Act, in so far as they make a provision of limitation for presenting a document for registration and another provision allowing a discretion to the District Registrar to accept a document for registration even if the same is filed after the expiration of the time limit prescribed in Section 23 but within a further period of four months, are of the nature of Section 3 and Section 5 of the Limitation Act respectively. Thus the decision of the question as to whether the delay in presenting the document could be condoned by the District Registrar under Section 25 of course, if the delay is not for a period of more than four months from the State of the expiry of the time limit prescribed in Section 23 of the Registration Act, is one which is entirely within the jurisdiction of the District Registrar and even an erroneous decision in that matter will not oust the jurisdiction of the District Registrar from passing an order directing the registration of the document. In these circumstances, it cannot be held that the order passed by the District Registrar under Section 25 of the Registration Act in the present case was a nullity or suffered from lack of jurisdiction on the ground that the question of condonation of delay was erroneously decided by him.

31. Learned counsel for the petitioner argued that even in the application submitted by the Arbitrators it was not stated that there was any unavoidable cause or urgent necessity and the absence of one of the Arbitrators from Jodhpur should not have been considered as a matter of unavoidable accident. As I have already observed above, it was a matter to be taken into consideration by the District Registrar and even if his decision on that point was erroneous, it is not for this Court to interfere with the order passed in the exercsise of his urisdiction, in these proceedings under Article 226 of the Constitution. Moreover, Section 87 of the Registration Act made such a defect of procedure curable and the registration of the document is not rendered invalid because of the application of the provisions of Section 87. In that view of the matter, even the supervisory jurisdiction of this Court under Article 227 of the Constitution cannot be invoked for setting aside the order of the District Registrar, condoning the delay and admitting the document for registration, on payment of fine imposed by him.

32. Learned counsel for the petitioner cited some cases relating to the supervisory jurisdiction of this Court under Article 227 of the Constitution, but in my view, in the circumstances of the present case, such a supervisory jurisdiction is not attracted when the matter was discretionary in nature and was to be decided by the District Registrar under Section 25 of the Registration Act, within his jurisdiction.

33. No other point was argued before me in these two writ petitions.

34. As a result of the aforesaid discussion, I find no substance in these writ petitions and they are, therefore, dismissed. The parties are left to bear their own costs.


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