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Narsing NaraIn Singh Vs. Ajodhya Prosad Singh and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.118
AppellantNarsing NaraIn Singh
RespondentAjodhya Prosad Singh and anr.
Cases ReferredMustafa v. Phulja
Excerpt:
arbitration - arbitrator, if bound by rules of practice adopted by courts--arbitrator not to go beyond precise questions submitted--right of party in whose favour award is given to impeach its validity--award if can be filed in part--civil procedure code (act xiv of 1882), section 525. - .....to this court, and on his behalf the decree has been assailed in so far as it modifies the award. the arbitrator found in substance that the pathway alleged by the plaintiff and denied by the defendants did, as a matter of fact, exist, but he held that if the thoroughfare was allowed to continue, great inconvenience and injury would be caused to the first defendant. in this view the arbitrator laid out a new pathway in lieu of the disputed thoroughfare. the plaintiff was satisfied with the award in this respect, but the defendants objected that the award was in excess of the authority of the arbitrator, inasmuch as the matter covered by the submission was the existence or otherwise of the disputed pathway, and it was beyoud the competence of the arbitrator to substitute in lieu.....
Judgment:

1. This appeal is directed against a decree by which the Courts below have concurrently ordered the partial enforcement of a private arbitration award. The parties to the proceeding are related to each other, and had a dispute as to a pathway for passage from the land of the plaintiff and his brother to a village towards the north of the property of the first defendant. There were also disputes between the parties in respect of other matters to which detailed reference is not necessary for our present purpose. On the 16th July 1908, the matters in controversy which were set out in full detail in a registered instrument of submission were referred to the arbitration of a gentleman by name Dilkiswar Singh. He made his award on the 31st August 1908. On the 14th September following, the plaintiff applied under Section 525 of the Code of 1332 that the award be filed in Court. The defendants resisted the application on every conceivable ground; they questioned the validity of the submission, imputed misconduct and partiality to the arbitrator, alleged a revocation of the submission before the award was made, and contended that the award had determined a question not included in the submission. The Courts below have overruled all the objections except one, as entirely unfounded and have directed the award to be filed in part. The result has been that a modified decree has been made in favour of the plaintiff. The plaintiff has appealed to this Court, and on his behalf the decree has been assailed in so far as it modifies the award. The arbitrator found in substance that the pathway alleged by the plaintiff and denied by the defendants did, as a matter of fact, exist, but he held that if the thoroughfare was allowed to continue, great inconvenience and injury would be caused to the first defendant. In this view the arbitrator laid out a new pathway in lieu of the disputed thoroughfare. The plaintiff was satisfied with the award in this respect, but the defendants objected that the award was in excess of the authority of the arbitrator, inasmuch as the matter covered by the submission was the existence or otherwise of the disputed pathway, and it was beyoud the competence of the arbitrator to substitute in lieu thereof a new pathway. This view has found favour with the Court below, and, as we have already explained, they have declined to direct the award to be filed in so far as the pathway is concerned. The propriety of this decision has been assailed before us on two grounds, namely, first, that the award is not beyond the scope of the submission, as upon a liberal construction thereof, the whole question of a right of way must be taken to have been laid before the arbitrator and, secondly, that in any view the defendants were not competent to take exception to the award, as it was essentially in their favour. In support of the first ground thai; the submission should be liberally construed so as to enable the arbitrator to do substantial justice, reliance has been placed upon the cases of Knox v. Simmonds (1791) 3 Bro. C.C. 358 : 1 Ves. J. 369; Prosser v. Gorringe (1811) 3 Taunt 426; Delver v. Barnes (1807) 1 Taunt 48 : 9 R.R. 707 and Fuller v. Fenwick (1846) 3 C.B. 705 : 16 L.J.C.P. 78 : 10 Jur. 1057. It may be conceded that the arbitrator is not bound by mere rules of practice which Courts have adopted for, general convenience, and he has greater latitude than Courts of law to do complete justice between the parties according to equity and good conscience. In this view, Courts are never astute to entertain technical objections to awards. In other words, as Lord Halsbury, L.C., said in Adams v. Great North of Scotland Rawilay Co. (1891) App. Cas. 31 the Courts will not review awards upon the merits: they will not constitute themselves as Courts of appeal to examine whether or not the conclusion at which the arbitrator arrived was sound, both in point of law and in point of fact. This salutary doctrine, however, is subject to the fundamental rule that an arbitrator cannot go beyond the precise questions submitted: it will not do for him to determine any claims or demands, though existing between the parties to the submission, save only those which they have agreed that he shall decide. This is sound on principle; the submission furnishes the source and prescribes the limits of the authority of the arbitrator. The arbitrator is inflexibly limited to a decision of the particular matters admitted; he cannot take upon himself an authority which the submission does not confer. Price v. Popkin (1839) 10 A. & E. 139 : 2 P. & D. 304 : 8 L.J.Q.B. 198 : 3 Jur. 433; Pascoe v. Pascoe (1837) 3 Bins (N.C.) 898 : 5 Scott 117 : 3 Badges 188 : 6 L.J.C.P. 322; Baillie v. Edinburgh Oil Gaslight Co. (1835) Cl. and F. 639 and Bucclench, Duke of v. Metropolitan Board of Works (1872) L.R. 5 H.L. 418 : 5 Exch. 221 : 41 L.J. Ex. 137 : 27 L.T. 1. In each case, therefore, where a question arises whether the arbitrator has exceeded his authority and it is urged that the submission should be liberally construed and interpreted, the question really reduces itself to this, whether the circumstances of the case bring it within the scope of the one or the other of the two conflicting principles we have formulated. In the case before us, the terms of the submission are, in our opinion, against the contention of the appellant. The matter in controversy submitted to the arbitrator was not whether the plaintiff should have access to the northern village across the land of the defendants but whether he had a right of way over the specified strip of land. The arbitrator was bound to base his decision upon an investigation of the latter question and he had no authority to lay out a new path on a piece of land over which neither party alleged a right of way. Walker v. Simpson (1888) 80 Maine 143 : 13 Attentie 580; Wyman v. Hamword (1868) 55 Maine 534 and Ross v. Linder (1881) 17 South Car 593. We are, therefore, not prepared to accept the first contention of the appellant.

2. In support of the second contention of the appellant it has been argued that if the arbitrator has exceeded his authority, he has done so for the benefit of the defendants and they, at any rate, are not entitled to assail the award which is really in their favour. In our opinion this contention is well-founded and must prevail. It is an elementary principle that only the party prejudiced by the exercise of excessive authority by the arbitrator is entitled to object to the award by reason of it; the party in whose favour the erroneous action of the arbitrator operates, cannot be heard to impeach the validity of the award on this ground. In Bradshaw's Arbitration (1842) 12 Q.B. 562 : 76 R.R. 349 : 17 L.J.Q.B. 362 : 12 Jur. 998, whether an award was assailed by one of the claimants, Lord Denman, C.J., observed that the error assigned was no matter of complaint for him, as it was in his favour and to his advantage. Similarly, in Moore v. Butlin (1837) 7 A. & E. 595 : 2 N. and P. 436, W.W. and D. 638 : 7 L.J.Q.B. 20 the learned Chief Justice observed that the party in whose favour the mistake had been made could not avail himself of it to set aside the award. See also Taylor v. Shuttleworth (1840) 6 Bing. (N.S.) 277 : 8 Scott 565 : 8 D.P.C. 280 : 9 L.J.C. P. 138. Again, in Lyman v. Arnus (1827) 5 Pickering 213 a party objected to an award because it made certain deductions from demands presented against him by his adversary and assigned to himself certain goods and merchandise. In answer to the contention that these acts were beyond the authority of the arbitration, the Court said: 'He has no right of complaint, it was in his power.' Galvin v. Thomson (1836) 13 Maine 367. In the case before us the arbitrator found in substance that the pathway existed as alleged by the plaintiff; in this view he ought to have made a decree accordingly. But as, in his opinion, the existence of a pathway at that particular spot would inconvenience the defendants, he laid out another path for the use of the plaintiffs. This course was adopted for the benefit, and convenience of the defendants. It is difficult to appreciate upon what principle the defendants can be allowed to question the award on the ground that the arbitrator exceeded his authority, the position would have been intelligible if the plaintiff had sought to assail the award in so far as it did not allow him a pathway in the precise place alleged by him. The second ground taken by the appellant must, therefore, be allowed.

3. We may add that it was not competent to the Courts below in a proceeding under Section 525 of the Code of 1882, to direct that the award be filed in part; the Court was bound to refuse the application if in its opinion the award was open to attack in part. Dandekar v. Bandekar 6 B. 663; Mana Vikrama v. Mallichery 3 M. 68; Thiruvengada Thiengar v. Vaidinath 29 M. 303; Mustafa v. Phulja 27 A. 526 : A.W.N. (1905) 86 : 2 A.L.J. 416. In the view we take, however, the question becomes immaterial.

4. The result, therefore, is that the appeal must be allowed and the decrees of the Courts below discharged. We direct that the award be filed in its entirety and a decree drawn up in accordance therewith. The plaintiff is entitled to his cists in all Courts from the first defendant.


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