1. This rule was granted in the following circumstances: The parties were three brothers who were in dispute with regard to certain land and by way of endeavouring to compose their differences they decided to submit them to a private arbitration. This was accordingly done by means of an agreement which was drawn up. But subsequently further disagreement arose which resulted in the petitioners before the Court now filing a suit for partition. The other side, however, and the arbitrators went on with the arbitration and the arbitrators made an award which was filed under para. 20, Sch. 2, Civil P.C. For some reason or another this award was not given effect to, but there was an order issued by the Court for a stay of the partition suit under para. 18, Sch. 2. The arbitrators were ordered by the Court to proceed fresh and then one of them declined to act. Whereupon cross-applications came before the Court, one on the part of the respondent to this petition asking the Court to appoint an arbitrator in place of the gentleman who had refused to act, and the other application on the part of the petitioners here to have the stay order, which had been issued by the Court in relation to the partition suit, set aside and to allow the suit to continue.
2. The learned Judge preferred the first application. He ordered a new arbitrator to be appointed, and it is on the question as to whether that order on the part of the learned Judge was legal that we granted the rule. The learned Judge, was, if I understand the position rightly, making use, when he took this course, of the provisions contained in para, 5, Sch. 2 to the Code and it falls to be determined as to whether it was possible for him to put this paragraph into operation in the circumstances of the case. Sch. 2, Civil P. C, is of course too well known for me to dilate upon its objects with great particularity; but I may say that it seems to me primarily to be intended to deal with that type of arbitration which comes into being after a suit had been filed, and when the parties come to the Court to ask its sanction for them to substitute arbitration proceedings for their original intention of having the Court to decide their dispute. But in the latter part of the Schedule there are paras which refer back to the earlier or main paras of the Schedule and make them operative in certain circumstances. The key paragraph in this regard is para. 19, and that paragraph is in the following terms:
The foregoing provisions, so far as they are consistent with any agreement filed under para. 17, shall be applicable to all proceedings under the order o reference made by the Court under that paragraph, and to the award and to the decree following thereon.
3. Of the important words in para. 19 are undoubtedly the words: 'So far as they are consistent with any agreement filed under para. 17.' To test whether the particular circumstances in this case warrant the action of the learned Judge in appointing a fresh arbitrator, it is necessary to consult the actual agreement come to between the parties. This agreement, the translation of which is before me, is a very short one and it recites that there is this dispute about land and that the three brothers having come to an agreement through the intervention of several (5) gentlemen, that:
Our rights and shares in respect of the aforesaid properties, etc., might be determined and partitioned by metes and bounds by taking evidence from us, we, this day, appoint you gentlemen as arbitrators and promise hereby that the decision arrived at by you in respect of our individual rights and Shares after partition by metes and bounds, or any judgment passed thereon relating to the aforesaid properties, etc, will be considered by us as the decision passed by the Hon'ble High Court, and against that we also will not raise any objection. If such an objection is raised, that will be rejected.
4. The language as can be seen is not very precise, but it seems to me to be, what I may describe, as somewhat archaic in form and precatory, and it indicates to me that it was the intention of these three brothers at the time the deed of agreement was entered upon, that their differences should be settled by three ascertained persons and no one else. If I am right in my reading of the agreement it also seems to me that the language of para. 19 is not applicable to this case because the expression 'so far as they are consistent with any agreement filed under para. 17' is not fulfilled.
5. It is evident that a number of cases were cited to the learned Subordinate Judge on this point one of which is a decision of the Allahabad High Court which is against the view that I hold. That is the case in Fazal Ilahi v. Prag Narain AIR 1922 All 133, but with all due respect to the learned Judges who decided that case and who gave a very short judgment therein, I can see no arguable reason which they adduced to support the view, that para. 5, Sch. 2, can be used in almost any circumstances which seem fit to the Judge dealing with the matter under dispute. To my mind a far more valuable decision which was cited to the learned Subordinate Judge was a decision of the Madras High Court in M. Narayanappa v. M. Ramchandrappa AIR 1931 Mad 28. There most of the cases dealing with this question are set out and discussed. It is noted by the learned Judges that there is no decision of the Calcutta High Court on the point, but they came to the conclusion that it is primarily the original intention of the parties which should be cherished by the Court and that another arbitrator in circumstances very similar to the circumstances of the case before us now, should not be forced upon any of the parties against their wish. No doubt, all questions of arbitration procedure are highly technical. Sch. 2, Civil P. C, which sets out a compendium of rules of procedure to control arbitration is not a very easy part of the Code to interpret. But the old principle that where it is at all possible, if parties desire arbitration, they should be as free as possible under the guidance of the Court to have their disputes settled by arbitrators they chose themselves, is, I think, to be respected. For these reasons, this rule must be made absolute. The order of the learned Subordinate Judge with regard to the appointment of a new arbitrator will be set aside, and it will be further directed that he should dispose of the case in accordance with law, namely, the partition suit which is in his file. The petitioners are entitled to the costs of this rule, the hearing fee is assessed at three gold mohurs.
6. I agree that this rule must be made absolute. An agreement to have a dispute settled by one or more individuals is one thing; an agreement to go to arbitration rather than to litigate in the Courts is quite another. It seems to me that the learned Judges, who decided the case upon which the learned Subordinate Judge relied, failed to observe this great distinction. I respectfully agree with the decision of the Madras High Court on the point. In the course of his argument, Mr. Ghose contended that inasmuch as the agreement is silent with regard to the replacement of any of the arbitrators, para. 19 automatically comes into play. It seems to me that this is to beg the question. The agreement was that the, dispute should be decided by three named gentlemen. There was therefore, nothing more to be said, and we cannot infer from that in the event of one of the arbitrators either being unable or unwilling to act, the Court should appoint another in his place.