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Balumal and anr. Vs. J.P. Chandani and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1120 of 1972
Judge
Reported inAIR1973Raj153; 1972()WLN901
ActsArbitration Act, 1940 - Sections 31
AppellantBalumal and anr.
RespondentJ.P. Chandani and ors.
Appellant Advocate M.B.L. Bhargava and; S.R. Bhandari, Advs.
Respondent Advocate L.R. Mehta and; U.C. Mehta, Advs. for Respondents Nos. 3 and 4
DispositionPetition allowed
Cases Referred and Manshoor Ullah v. Bashir Uddin.
Excerpt:
.....does not include a revenue court--matter referred to arbitration privately by parties--held, application for award cannot be filed in revenue court.;it is difficult for me to hold that application under section 31 to make award a rule of the court can be made to the revenue court when the matter was referred to arbitration privately by the parties without the intervention of the revenue court.;i am definitely of the opinion that an application could be filed by the arbitrators seeking to make their award a rule of the court only in a civil court having jurisdiction to entertain such an application.;(b) words & phrases - 'civil court' in section 31 of the arbitration act--held, it does not include a 'revenue court'.;the word 'court' which shall be read as a civil court as used..........by the parties, then it is only the civil court that can pass a decree on the basis of such an award. the revenue court, according to the petitioners, has no jurisdiction to entertain any such application filed under section 31 of the act.3. mr. lekh raj, appearing on behalf of the respondents, however, contested this petition and the ground advanced by him is that for the purpose of deciding an application under section 31 of the arbitration act the revenue court should be treated as a civil court and in support of this argument he placed reliance on rajah nilmoni singh deo bahadoor v. taranath mookerjee, (1881-82) 9 ind app 174 (pc); narayan nagappa hegde v. shankar narasimha bhatta. air 1966 mys 5 and rajah of venkatagiri v. shaik mahaboob saheb, air 1944 mad 139. mr. bhargava.....
Judgment:
ORDER

V.P. Tyagi, J.

1. Balumal and Suresh Kumar have filed this writ petition under Article 226 of the Constitution challenging the order of the Sub-Divisional Officer, Jodhpur, dated 1st of May, 1972, whereby a preliminary objection of the petitioners to challenge the jurisdiction of that Court to entertain the prayer of the arbitrators to make their award the rule of the Court was rejected.

2. The facts giving rise to this litigation are, in a nutshell, as follows:

Petitioners entered into a partnership agreement with respondent No. 3 Dr. Khetlakhani in an agricultural pursuit and it is alleged that as a result of that partnership certain lands in village Manaklao were purchased by the partners and some machinery, including the pumping set, was installed on the well in the said lands. The partners also took loan from the bank and made certain constructions on the lands for the purpose of carrying on their agricultural operations. After some time, serious controversies arose between the partners, and the dispute arising amongst them was referred to three arbitrators, namely. Shri J.P. Chandani, Swami Chandangir and Shri Daulatram. Reference was, however, made to the arbitrators out of Court. It is alleged that out of the three arbitrators only two arbitrators proceeded to resolve the dispute and an award was given by them which was submitted in the Court of the Sub-Divisional Officer, Jodhpur under Section 31 of the Arbitration Act of 1940, to make the award a rule of the Court. The petitioners raised a preliminary objection that the revenue Court had no jurisdiction to entertain any application made by the arbitrators to pass a decree on the basis of the award as, according to the petitioners, such proceedings can be entertained only by the Civil Court and not by a revenue Court. This preliminary objection was disposed of by the learned Sub-Divisional Officer by his order dated 1st of May. 1972. The learned Sub-Divisional Officer was of the view that as the dispute related to the agricultural lands the revenue Court had jurisdiction to entertain an application under Section 31 of the Arbitration Act. This order of the Sub-Divisional Officer has been impugned by the petitioners, mainly, on the ground that if an award is given by the arbitrators on a reference made privately by the parties, then it is only the Civil Court that can pass a decree on the basis of such an award. The revenue Court, according to the petitioners, has no jurisdiction to entertain any such application filed under Section 31 of the Act.

3. Mr. Lekh Raj, appearing on behalf of the respondents, however, contested this petition and the ground advanced by him is that for the purpose of deciding an application under Section 31 of the Arbitration Act the revenue Court should be treated as a Civil Court and in support of this argument he placed reliance on Rajah Nilmoni Singh Deo Bahadoor v. Taranath Mookerjee, (1881-82) 9 Ind App 174 (PC); Narayan Nagappa Hegde v. Shankar Narasimha Bhatta. AIR 1966 Mys 5 and Rajah of Venkatagiri v. Shaik Mahaboob Saheb, AIR 1944 Mad 139. Mr. Bhargava appearing on behalf of the petitioners, on the other hand, cited Bithal Das Khanna v. Shri Nath Das Khanna, AIR 1949 All 360; M. I. Shahdad v. Mohd. Abdullah Mir, AIR 1967 J & K 120; Jai Singh v. Mangtoo. AIR 1962 Him Pra 10 and Manshoor Ullah v. Bashir Uddin. 1962 All LJ 918 to canvass the point that the revenue Court cannot take any proceedings under the Arbitration Act unless the dispute is referred to arbitration under Section 69 of the Rajasthan Land Revenue Act of 1956, and since this dispute was referred to the arbitration by a private understanding between the partners, the award if at all it is a valid award, cannot be made the rule of the Court by a revenue Court.

4. Section 31(1) of the Arbitration Act lays down that subject to the provisions of this Act. an award may be filed in any Court having jurisdiction in the matter to which the reference relates. The word 'Court' has also been defined by this Act in Section 2(c) and the definition reads as follows:

'2 (c) 'Court' means a Civil Court having jurisdiction to decide the questions forming the subject-matter of the reference if the same had been the subject-matter of a suit, but does not except for the purpose of arbitration proceedings under Section 21, include a Small Cause Court.'

5. The argument of Mr. Bhargava is that if Section 31(1) of the Arbitration Act is read with the definition of a 'Court' then it is only the Civil Court that has a jurisdiction to entertain an application under Section 31 and to make the award a rule of the Court. A similar question was agitated before the Allahabad High Court in AIR 1949 All 360 and the learned Judge made the following observations while deciding the controversy raised before him:

'I have no hesitation to say that the expression 'Civil Court' as used in Section 2(c), Arbitration Act, 1940 does not include the revenue Court. The position thus is that the revenue Courts cannot deal with awards made without the intervention of the Court or arbitrations with the intervention of a Court as regards matters not before them in, any pending case. By virtue of the saving provisions contained in Sections 46 and 47. Arbitration Act, 1940 they can, however, deal with awards made through their intervention in cases pending before them. There are provisions in the U. P. Land Revenue Act, 1901, which indicate that where an award has been made without the intervention of the Court, revenue Courts will act upon it although they may not go through the procedure of passing a decree in terms of it.'

6. This very question came for the consideration of that very High Court in the year 1962 and the learned Judge who decided that case in 1962 All LJ 918 concurred with the view expressed by the learned Judge in AIR 1949 All 360. In that case the dispute related to the zamindari property and there the dispute was referred to the arbitrators who gave their award. The dispute was between two brothers. One of the brothers filed the award in the Civil Court but the other brother raised an objection that the Court had no jurisdiction to pass a decree in terms of the award as the matter related to zamindari property which was within the exclusive jurisdiction of the revenue Court. The matter ultimately came to the High Court which held that the Civil Court had jurisdiction. The High Court distinguished between a case where a dispute between the parties is already pending in a Court and one where no such dispute exists. The learned Judge held that in the latter case the parties have a right to refer any matter to arbitration but the power to enforce the award vests in the Civil Court alone. This view was overruled by the Court that the jurisdiction to enforce the award depended upon the subject-matter of the dispute. While upholding the view expressed by the learned Judge in AIR 1949 All 360 one more argument was advanced by the learned Judge in this latter case and he expressed his reasoning as follows:

'I respectfully agree, and may add a reason in support of the principle enunciated by the Bench. The right to enforce an award passed by an arbitrator on an agreed reference between the parties is a civil right which can be granted only by the Civil Court. As pointed out by the Division Bench, the Revenue. Court has no jurisdiction to enforce such a right. But the position is quite different where a dispute is actually pending before the Revenue Court. In such a case, that Court alone has the jurisdiction under Section 31 of the Arbitration Act to enforce an award made on a reference to arbitration with or without the intervention of the Court'

7. The view expressed by the Allahabad High Court has been followed by the Himachal Pradesh in AIR 1962 Him Pra 10.

8. A similar dispute had come be-fore this Court also but the learned Judge while deciding that dispute and after taking into consideration the pro-visions of the definition of 'Court' and Section 31(1), directed himself to a little different aspect of the question and held that if the property is a composite property, then in that event it is only the Civil Court that can take cognizance of an application under Section 31 of the Arbitration Act. 1940. The revenue Court according to that judgment was not competent to grant any relief as the properties involved were non-agricultural. This decision of this Court does not directly reasolve the controversy raised in the present case and, therefore, is of little avail to learned counsel for the respondents.

9. This controversy can be looked at from other angle also. The revenue Courts exercise their jurisdiction in respect of matters falling within the provisions of Chapter XV of the Rajasthan Tenancy Act of 1955. Section 207 is a relevant provision of law which deals with the jurisdiction of the revenue Courts and it lays down that all suits and applications of the nature specified in the Third Schedule shall be heard end determined by a revenue Court which means that only those suits and applications which have been enumerated in the Third Schedule of the Act shall be entertained and decided by the revenue Court. Part 2 of Schedule III which deals with the applications does not make a mention of any application which may be filed before the revenue Court under the provisions of the Arbitration Act. 1940. There is however, one exception to this question of jurisdiction of the revenue Court and it is dealt with by the law-makers in Section 69 of the Rajasthan Land Revenue Act, 1956 read with Section 47 of the Arbitration Act, 1940. If some dispute is pending before a revenue Court and if that dispute is referred through the intervention of the revenue Court to arbitration, then in that event the application under Section 31 of the Arbitration Act relating to that dispute shall be made in the revenue Court. Section 207 of the Rajasthan Tenancy Act does not confer any jurisdiction on the revenue Court to entertain and determine an application made under Section 31 of the Arbitration Act and as such it is difficult for me to hold that application under Section 31 to make the award a rule of the Court can be made to the revenue Court when the matter was referred to arbitration privately by the parties without the intervention of the revenue Court.

10. Learned counsel for the respondents referred to the Privy Council decision in (1881-82) 9 Ind App 174 (PC) and the decisions of the Mysore High Court in AIR 1966 Mys 5 and Madras High Court in AIR 1944 Mad 139. These decisions do not relate to the disputes arising out of the Arbitration Act. The Privy Council ruling was referred before the Allahabad High Court in AIR 1949 All 360 but the learned Judge after discussing the facts of that case, rightly distinguished it. I agree with the view taken by the learned Judge of the Allahabad High Court that this judgment has no direct bearing on the question to be decided by that Court. The word 'Court' which shall be read as a Civil Court, as used in Section 31 of the Arbitration Act, shall be read in contradistinction with the revenue Court or the military Court or criminal Court. 'Revenue Court' has been defined in Section 5 of the Code of Civil Procedure. According to this definition 'revenue Court' means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent revenue or profits of land used for agricultural purposes but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a Civil nature.

11. The Rajasthan Tenancy Act also defines 'Revenue Court' in Section 5 (35). This definition is little wider than the definition of 'Revenue Court' given in the Code of Civil Procedure and it says that 'Revenue Court' shall mean' a Court or an officer having jurisdiction to entertain suits or other proceedings relating to agricultural tenancies, profits and other matters connected with land or any right or interest in land wherein such Court or officer is required to act judicially; it shall include the Board and every member thereof a revenue appellate authority, a Collector, a Sub-Divisional Officer, an Assistant Collector a Tehsildar or any other revenue officer while so acting.

12. According to this definition, a Court established as a revenue Court under the Revenue Laws can entertain suits or proceedings relating to agricultural tenancies, profits and other matters connected with land or any right or interest in land but this definition shall have to be read subject to the provisions of Section 207 of the Rajasthan Tenancy Act which specifies the matters which can be taken cognizance of by the revenue Courts and such matters have been specified in the Third Schedule. Therefore, in order to see whether revenue Court which comes within the definition of this term as given in the Rajasthan Tenancy Act or in the Code of Civil Procedure can entertain an application about making an award of an arbitrator a rule of the Court though that dispute which has been adjudicated by the arbitrators may relate to agricultural land we shall have to refer to the provisions of Schedule III and if that matters does not fall in any of the items mentioned therein then I very much doubt about the competence of the revenue Court to take cognizance of such a matter. In this view of the state of law, I am definitely of the opinion that an application could be filed by the arbitrators seeking to make their award a rule of the Court only in a Civil Court having jurisdiction to entertain such an application.

13. The writ petition is, therefore, allowed. The impugned order passed by the Sub-Divisional Officer, Jodhpur dated 1st May. 1972 is (hereby quashed. No order as to costs.


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