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1915 Supreme(SC) 44
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT HALDANE, LORD PARMOOR, LORD WRENBURY, SIR JOHN EDGE, AND MR. AMEER ALI.
THAKUR UMED SINGH - Appellant
Versus
SOBHAG MAL DHADHA - Respondents
On Appeal From The Court of The Chief Commissioner, Ajmer-Merwara.
Decided On : Nov. 2. 1915.
Solicitors for appellants : Barrow, Rogers & Nevill.
The requirement for a written application for reference to arbitration under the Code of Civil Procedure, 1908, does not mandate a signature if consent is otherwise established through a signed agreement and the party's assent in court.
Headnote:(A) Code of Civil Procedure, 1908 - Second Schedule, Section 1 - Reference to arbitration - Application in writing - Requirement of signature - Where parties have agreed to refer the matter to arbitration and apply in writing to the Court, the statute does not explicitly require that the application be signed - If the guardian ad litem of a minor party has signed the agreement to refer and was present in Court assenting to the application, the absence of a signature on the application itself is a technicality that does not invalidate the proceedings or the resulting award.
(B) Code of Civil Procedure, 1908 - Section 114 and Order XLVII, Rule 1 - Review - Scope - An order refusing revision should not be interfered with on a purely technical ground where no injustice has occurred and there is no misconduct or irregularity in the arbitration process.
Facts of the case:
In a suit for recovery of money under a mortgage, the parties, including a minor represented by a guardian ad litem, entered into a signed agreement to refer the dispute to arbitration. An application for reference was filed in Court. While the guardian ad litem was present and assented to the application, the application itself was not signed by the guardian. Following an award by an umpire, the trial court refused to set aside the award. A subsequent application for revision was dismissed. However, upon a review application, an officiating judge set aside the entire arbitration proceeding on the ground that the failure of the guardian to sign the application for reference was a fatal technical error.
Findings of Court:
The court found that the requirement for an application "in writing" under the Second Schedule does not necessitate a signature. Since the agreement was signed and the guardian assented in court, no injustice was caused. There was no evidence of misconduct by the arbitrators or the umpire.
Issues: Whether the omission of the guardian ad litem's signature on the application for reference to arbitration, despite the existence of a signed agreement and the guardian's presence and assent in court, is a fatal error that justifies setting aside the arbitration award.
Ratio Decidendi: The court held that Section 1 of the Second Schedule of the Code of Civil Procedure, 1908, does not require the written application for reference to be signed. Consent established through a signed agreement and appearance in court is sufficient to validate the reference. Technical errors that do not result in injustice or stem from misconduct should not be used to overturn valid arbitration awards.
Result: Appeal allowed with costs.
Legal Category Hierarchy
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practice and procedure
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civil procedure
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arbitration
- reference to arbitration
- setting aside awards
- review and revision
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arbitration
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guardianship
- guardian ad litem
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civil procedure
Judgement
Appeal by special leave from a judgment of the officiating Chief Commissioner of Ajmer-Merwara (May 23, 1912).
The judgment appealed from set aside an award in proceedings in which the matters in difference in a suit had been referred to arbitration by the trial judge, under the Code of Civil Procedure, 1908, Sched. II., s. 1. The ground of the decision was that the application for the order of reference was not signed by the guardian ad litem of one of the parties who was a minor. It appeared that all the parties, including the minor by his guardian ad litem, had signed an agreement to refer which was produced to the judge upon the hearing of the application, and that all the parties, including the guardian, had been present in Court upon the application. The facts in connection with the proceedings are fully stated in the judgment of their Lordships.
1915. Oct. 19. Dube, for the appellants. Sect. 1 of Sched. II. of the Code of Civil Procedure, 1908, does not require that the parties should sign an application under that section. It is only necessary that all the parties should agree. All the requirements of the section were satisfied in the present case. The
05 Law. Rep. 43 Ind. App. 1 ( 1915- 1916)
Thakur Umed Singh V. Sobhag Mal Dhadha 106
decree of the trial judge giving effect to the award was, under Sched. II., s. 16, of the Code, final and not subject to appeal or revision Ghulam Jilani v. Muhammad Hussan (( 1901) L. R. 29 Ind. Ap. 51.); Hansraj v. Sundar Lal . (( 1908) L. R. 35 Ind. Ap. 88, at p. 97.) In any case there was no ground entitling the officiating Chief Commissioner, under s. 114 and Order xlvii., r. 1, of the Code, to review the judgment of the Chief Commissioner.
The respondents did not appear.
Nov. 2. The judgment of their Lordships was delivered by
VISCOUNT HALDANE. In this appeal the question is whether the officiating Chief Commissioner of Ajmer-Merwara has properly set aside the award in certain arbitration proceedings. The respondents had brought a suit to recover from the appellants Rs. 88,320 alleged to be due under a mortgage. The appellant first on the record is the father of the second appellant, who was at the time of the proceedings a minor. The trial judge appointed one Bhur Singh guardian ad litem of this minor appellant. Before the trial came on all the parties entered into an agreement to refer the questions in dispute to two arbitrators and, in the event of these differing, to an umpire. The agreement was signed by the appellants and respondents each with his own hand, excepting in the case of the minor appellant, on whose behalf it was signed by the guardian ad litem. An application to the Court for an order of reference was filed. The parties appeared before the trial judge and produced the agreement. The guardian ad litem was present in Court and was a party to the application. The trial judge thereupon made an order of reference. The arbitrators differed, and the parties then concurred in an application to refer the dispute to the umpire, and an order was made accordingly. The umpire made an award allowing the respondents claim to the extent of Rs. 17,510 only. This award was filed in Court. The respondents, being dissatisfied with it applied to the trial judge under the provisions of s. 15 of the Second Schedule of the Code of Civil Procedure, 1908, to set aside the award. The trial judge refused the application. He held that all the parties to the suit, including the guardian ad litem, had been consenting parties to the application, and further that there was no ground for the objections made on the merits to the award. The order was made under s. 16 of the Second Schedule to the Code already referred to. This section provides that " (1.) Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration in manner aforesaid, and no application has been made to set aside the award, or the Court has refused such application, th
