Francis W. Maclean, K.C.I.E., C.J.
1. In this case the plaintiff instituted a suit in the Court of the Recorder of Rangoon against the defendant claiming that he was entitled to a piece of land some 50ft. by 40ft. in respect of which the plaintiff alleged that the defendant was obstructing him in building upon it. The real contest was as to a narrow strip some 2ft. by 40 ft. The defendant said that the plaintiff was not entitled to this strip; that it belonged to the defendant; and that the plaintiff was in fact encroaching upon the defendant's land. It will thus be seen that the question was substantially one of boundaries. The matter came before the Recorder, and on the 25th of August 1897, the Recorder, upon the application of the plaintiff and the defendant, made through counsel or advocates, the following order: 'By consent let the case be referred to Mr. A.V. DeSouza as arbitrator. Award to be returned in a week.' It is not very clear how far the arbitration had proceeded, but apparently nothing much bad been done before an application by petition to the Court was made by the plaintiff for an extension of time for the arbitrator to make his award. This application was granted; the matter was gone into before the arbitrator, and the arbitrator duly made his award, dated the 7th September 1897, which was adverse to the plaintiff. The plaintiff then filed a petition before the Recorder on the 15th September 1897, impugning the award, and on the 16th September 1897 the Recorder gave judgment confirming it, and a decree was made upon the footing of the award.
2. Then comes the present appeal to this Court, and for the first time we are told by the appellant that inasmuch as the original application to refer the case to arbitration was not made in writing, the arbitration proceedings, the award and the decree of the Recorder are each and all invalid. The objection is a technical one, and it is not for us to say whether this is a very straightforward method of conducting litigation; the plaintiff is entitled to raise the point, and we can only decide whether or not it is well founded.
3. The question depends upon whether or not the second paragraph of Section 306 of the Code of Civil Procedure, which says that every application for an order of reference shall be in writing, is directory only, or whether the Court has no jurisdiction to make such an order unless and until the application is (sic) made. It is perhaps, doubtful whether the point really arises, seeing that (sic) application of the plaintiff for further time was undoubtedly in writing, (sic) whether that application might not, under the circumstances of this case, be treated as tantamount to a compliance with the requirements of the (sic) section. The object of having the application made in writing is, one would urmise, to avoid subsequent controversy as to whether or not there was any such application; but that there was such an application in this case is not disputed.
4. We have been referred to two or three cases and especially to the case of Nusserwaniee Pestonjee v. Mynoodeen Khan (1855) 6 Moore's I.A., 134. That case was decided upon the principle that if the Court has not jurisdiction to deal with a matter, the parties by consent cannot give such jurisdiction--a proposition I have no desire to impugn. And there it was held that the Court had no jurisdiction except upon the fulfillment of the requirements of a certain Regulation; that these requirements were not directory only; and that as they had not been complied with, the jurisdiction did not arise. The cases of Gazee v. Hameed Buksh (1871) 16 W.R., 160, and Bhrigoo Boy v. Bhagruth Upadhya (1864) Gap. No., W.R., 41, when examined have really no bearing upon the case before us.
5. In my opinion the jurisdiction is created by the first paragraph of Section 506, and the second paragraph is directory only, as to the form in which the application should be made. It is clear both parties consented to the reference, and that the order of reference was made by the Court in the presence of their counsel or advocates, and if the section be, as I think, directory only, there has only been an irregularity not affecting the merits or the jurisdiction, and the case falls within Section 578 of the Code of Civil Procedure.
6. There is no evidence that the application was not in writing, but as no such application is recorded, we must take it that no such application was made.
7. As to the second point, viz., whether we can go into the merits, inasmuch as the award was confirmed by a decree of the Recorder's Court, no appeal lies from that decree under Section 522 of the Code.
8. I would add for the guidance of the lower Courts in dealing with applications under Section 506 of the Code that to avoid contests of the present description, the Judges in those Courts should be careful to see that such applications are made in writing.
9. The appeal must be dismissed with costs.
10. I am of the same opinion.
11. The appeal in this case is against the decree made by the Recorder of Rangoon, in accordance with an award made by an arbitrator, to whom the case was referred for determination. That being so, Section 522 of the Code of Civil Procedure bars an appeal, unless it can be shown that for some reason or other, the award itself was a nullity--See Joy Prokash Lall v. Sheo Golam Singh (1884) I.L.R., 11 Cal, 37.
12. The way in which the learned Vakil for the appellant seeks to make out this position is by contending that as Section 506 of the Code of Civil Procedure requires that an application for reference to arbitration shall be in writing and as the application for reference to arbitration in this case was not made in writing, the reference to arbitration was void ab initio, and if the reference to arbitration were void, the award made by the arbitrator must be treated as a nullity.
13. It is quite true that Section 506 of the Code enacts the every application for reference to arbitration shall be in writing, but does it follow, where reference is made by an application not in writing, that the arbitration aware that is made upon such reference is a nullity
14. In order that there may be a valid reference to arbitration the essential conditions required by law are, that the parties, or their pleaders duly authorized, shall apply to the Court, at any time before judgment is pronounced, that the matters in difference between them in the suit be referred to arbitration. There is no question here that these conditions were satisfied; no objection is taken to the authority of the pleaders, or advocates, of the parties who made the application; the only objection raised is that the application to the Court for referring the case to arbitration was not made in writing.
15. Then the law further provides that the application for referring the case to arbitration shall be in writing. But that in my opinion touches only the form of the application, the mode in which it is to be made, and if that provision of the law is not complied with, though the other provisions of the law have been, the defect, in my opinion, would be an irregularity only such as would be cured by Section 578 of the Code of Civil Procedure. It was contended by the learned Vakil for the appellant that the omission in this case to make the application in writing was not a mere irregularity, but was a matter that affected the jurisdiction of the Court to refer the case to arbitration; for he contended that the Court acquired jurisdiction to refer a case to arbitration only upon an application being made to it in writing and not otherwise. I do not consider this contention sound. The Court acquired jurisdiction to refer the case to arbitration upon an application being made to it by the parties, or their duly authorized pleaders or advocates. That was done in this case, and the only defect in the application was that the manner of applying was not in strict conformity with the law; that is to say, instead of the application being in writing, it was a verbal application. That, as I have already said above, affects only the form of the application, and nothing more. It was, therefore, a mere irregularity, which could not be said to have affected the jurisdiction of the Court.
16. I may add that in this case, an application in writing was made by the learned Counsel for the plaintiff on the 31st of August 1897, stating that the arbitrator was ordered to file his award on the 1 st of September 1897; that the arbitrator could not do so, as the witnesses for the plaintiff had not yet been examined; and that both parties had agreed to an extension of time being granted; and accordingly, the Court extended the time for filing the award to the 8th September 1897, and the award was filed on the 7th September. So that it may well be said that even if there was a defect in the manner in which the original application for reference to arbitration was made, that defect was cured by this written application, in accordance with which the witnesses for the plaintiff were examined, nothing apparently having been done before the making of this written application on behalf of the plaintiff.
17. In regard to the cases cited by the learned Vakil for the appellant in support of his argument, which are all distinguishable from the present, I need only make one observation, in addition to what has been said by the learned Chief Justice in his judgment, namely, that in the case of Nusserwanjee Pestonjee v. Mynoodeen Khan (1855) 6 Moore's I.A., 134, the submission to arbitration was a private one and not one made in the course of any suit, and the defects in the submission could not, therefore, be cured by any principle of law similar to that embodied in Section 578 of the present Code of Civil Procedure. In my opinion, therefore, the contention of the appellant is not made out, and the appeal must, therefore, be dismissed with costs.