1. This is an appeal from an order of my learned brother Mr. Justice Rankin, by which it was ordered that the award of the arbitrator appointed in the suit by reason of the order made in the suit and dated the 17th March 1919 be set aside and taken off the file. The learned Judge came to his conclusion on the ground that the condition of the jurisdiction which is given by Clause (1) of the 2nd Schedule to the Civil Procedure Code had not been complied with.
2. The suit was brought by one Nandalal Karuri against the Official Assignee of Calcutta, Nilmoney Das who was then an insolvent, and a firm called Laduram-Nath-mull. It appears that Nandalal Karuri was a mortgagor, Nilmoney was the mortgagee and Laduram-Nathmull were submortgagees from Nilmoney.
3. The prayers of the suit are set out at page 30 of the paper book in Appeal No. 66 of 1919 and were as follows: '(a) That the said premises Nos. 84.A, 84, 1A, 84 2A and 84.3A. Bowbazar Street, in the town of Calcutta be declared redeemed and discharged from the mortgage or charge effected by virtue of the deposit of title-deeds made on the 7th day of February 1915: (b) That if necessary, all accounts be taken and enquiries made as to this Hon'ble Courts may seem fit or necessary and the usual redemption decree be passed in his behalf.
(c) That the defendants Laduram-Nathmull, Nilmoney Das and the Official Assignee, or whoever amongst them are or is found to be in custody of the title-deeds deposited as aforesaid on the 7th day of February 1915, be directed to return the same to the plaintiff and do also make over the said memorandum of agreement, dated the said 7th day of February 1915, duly cancelled.
4. A further prayer was that the 'Defendants Laduram-Nathmull and the Official Assignee or either of them do pay to the plaintiff his costs of this suit.'
5. Now, the petition was by the plaintiff Nandalal Karuri and he prayed by that petition that all matters in difference in this suit, including the question of costs, be referred to the sole arbitration of Mr. A.N. Chaudhuri, Barrister-at-law. The petition alleged that the defendant Nilmoney Das, being an insolvent, had no interest in the suit inasmuch as all his interest in the aforesaid property vested in the Official Assignee by operation of law, The order followed the petition and provided that with the consent of all the parties as aforesaid, all matters in difference in this suit, including the question of costs of the suit and of the reference, be referred to the final decision of Mr. A.N. Chaudhuri, Bar-at-law. 'The parties aforesaid' were the Official Assignee, Laduram Nath-mull and the plaintiff, and the consent of Nilmoney Das-one of the defendants-was not obtained.
6. The learned Judge has held that in this case, inasmuch as the consent of Nilmoney Das had not been obtained and inasmuch as all the matters in difference in the suit including the question of costs were referred, the Court had no jurisdiction to make the order of reference. I cannot help feeling in this case that the upholding of this order may involve some hardship upon the appellant and that if proper steps had been taken at the time of the application for reference, either to strike out the name of Nilmoney Das as a defendant in the suit or to modify the terms of the application, the result which has now been obtained might have been different. But this is a matter of importance, as it relates to a question of jurisdiction and inasmuch as pur decision in this case may affect other cases in the future, it is impossible to allow any consideration of hardship to influence our decision. I agree with what the learned Judge has said upon that point. It is this: 'The question is one of jurisdiction and the conditions of jurisdiction. If these are not satisfied, I cannot refuse to notice the defeat nor will I accept somthing less as sufficient. These conditions are simple and clear and should be kept so, Techincality will in the end be less troublesome if they are exacted firmly and in all cases, than if they are tempered or modified in the hope of avoiding technicality. Rule I of the 2nd Schedule is to be obeyed, not merely to be placated. I think it is obvious from the terms of this clause that it was contemplated that in certain cases all matters in difference in the suit might not be referred; and that when only some matters in difference in the snit were referred, the consent of the parties who were interested in those matters would be sufficient. That, however, is not this case, because, as I have already pointed out, the order of reference was that all matters in difference in this suit including the question of costs should be referred. Having regard to the allegations in the plaint, the relief asked for therein and the form of the order of reference to which I have just referred, in my judgment it is impossible to say that Nilmoney Das was not a party interested in the matters which were referred: even though he did not appear, the Court had no jurisdiction to make the order of reference without his consent. Consequently, inasmuch as the Court had no jurisdiction to make the order of reference the whole proceedings were invalid from the beginning, and the award itself was invalid: and, therefore, the order of the learned Judge was right and the appeal therefrom should be dismissed with costs.
7. I agree that this appeal must be dismissed.
8. I desire to add that when the Court is called upon to decide a matter of jurisdiction, no question of hardship, no consideration of technicality can be permitted to affect our judgment. The foundation of jurisdiction here is the agreement amongst all the parties interested that the matters in difference between them shall be referred to arbitration. If all the parties interested do not apply and yet an order of reference is made, the order is illegal because made without jurisdiction. If an award follows on the basis of that reference, it is equally illegal, because it is founded upon a reference, made without jurisdiction. In my opinion, the rules relating to jurisdiction should be strictly construed and the Court should be astute not to permit litigants to circumvent such provisions of the Code, for otherwise parties will be encouraged to evade these statutory directions. On the facts stated by learned Counsel, it is plain that we cannot hold that the insolvent had no interest within the meaning of the first paragraph of the 2nd Schedule of the Code of Civil Procedure; indeed, he frankly admitted that his consent to the reference could not be obtained because he had disappeared in view of the bankruptcy proceedings.
9. I agree.
Appeal No. 66
10. This appeal being called on, it is agreed that the judgment in the last Appeal (No, 65 of 1919) covers this appeal. The result is that in our judgment this appeal should be dismissed with costs.