1965 Supreme(Cal) 51

HIGH COURT OF CALCUTTA
H. K. Bose, B. C. Mitra
ARATI PAUL - Appellant
Versus
REGISTRAR O. S. H. C. - Respondent
AFOO 226  Of  1964
Decided On : FEBRUARY 18, 1965

A pronouncement made by a Judge in a pending action cannot be treated as an award, even though one of the parties contends that she never agreed to refer the matter to the arbitration of the Judge.

Headnote:

ARBITRATION - REFERENCE - CONSENT - JUDGE ACTING AS ARBITRATOR - VALIDITY - WRIT PETITION - JURISDICTION - DISPUTED QUESTIONS OF FACT - REMEDY BY WAY OF SUIT - LIMITATION - RELIEF IN WRIT PETITION - MISCONCEPTION OF NATURE AND SCOPE OF RELIEF - AGREEMENT TO REFER DISPUTE TO ARBITRATION - DENIAL BY APPELLANT - WRIT PETITION - DISMISSAL.

Fact of the Case:

The appellant, the youngest daughter of the deceased, filed a suit for partition of the estate left by her deceased father. The widow of the deceased executed a deed of gift in favor of her three sons. She later instituted a suit for cancellation of the deed of gift and for partition of the estate. She died in 1958 after having executed a will whereby she bequeathed her entire estate to the appellant and her youngest son, to the exclusion of her two other sons and the other daughters. The appellant was substituted in place of the deceased widow as the plaintiff in the said suit and she also applied for grant of Letters of Administration in respect of the will of her deceased mother. This application for Letters of Administration was contested by the appellant's two brothers Balai and Konai, and on such contest the testamentary proceeding was marked as contentious cause and was numbered Testamentary Suit No. 12 of 1962. The said testamentary suit as well as the partition suit appeared in the list of Mallick, J. Oral evidence was taken in the testamentary suit for sometime, but before the hearing of the suit was concluded certain developments took place, as will appear from the Minutes of the order made by Mallick, J. on January 4, 1963 set out below: "it is recorded that all the parties consent to this testamentary suit as well as the partition suit being suit No. 1045 of 1957 and all the disputes involved in these two matters be settled and referred to the sole arbitration of the Hon'ble Mr. Justice Mallick and the parties agreed to abide by any decision that will be given and no evidence need be taken except as to what his Lordship might desire and the evidence need not be recorded in any formal manner. Parties agree that His Lordship would have all the summary power including the power to divide and partition the properties and to make such decrees as his Lordship thinks fit and proper and for the purpose of partition, if necessary, to engage or appoint surveyors and commissioners as his Lordship thinks best. It is recorded that all the parties have referred this matter to the learned Judge in what is known as extra cursumcuriae jurisdiction of this Court. It is further recorded that all parties agree that they will not prefer any appeal from or against the decree or order that may be passed by his Lordship the Hon'ble Mr. Justice Mallick. " Thereafter Mallick, J. , acting, under the said order dated January 4, 1963 passed an order on April 1, 1963, in the said suit No. 1045 of 1957 adjudicating upon various disputes between the parties. This order was filed in the usual manner and a draft was issued to the parties for settling the same with a view to drawing up of a decree thereon. The appellant thereupon moved an application under Article 226 of the Constitution for a writ in the nature of mandamus directing the Registrar. Original Side, of this Court to recall, cancel and withdraw the filing of the pretended award dated April 1, 1963, or to forthwith take off the said pretended award from the file and/or the records of the said suit. This application for a rule under Article 226 of the Constitution was rejected on September 5, 1963, by Banerjee J. Thereafter after various proceedings, including an application to the Supreme Court for an injunction restraining the drawing up of the decree, which was granted by the Supreme Court, Sinha and A. K. Mukherjea, JJ. heard the appeal, preferred by the appellant against the order or dismissal passed by Banerjee, J. , and they directed the issue of a rule as prayed for by the appellant in her petition under Article 226 of the Constitution. Returns were duly filed by the respondents and the Rule was heard and disposed of by Mallick, J. , by his judgment dated August 26, 1964, by which the rule nisi was discharged, the application was dismissed with costs and the Registrar was directed to file the decree forthwith. This appeal is directed against the said order of Mallick, J. , discharging the rule.

Finding of the Court:

The Court held that the appellant's contention that the pronouncement made by Mallick, J. , on April 1, 1963, was not a judgment, it could not be treated as such, nor could it be filed as a judgment and no decree could be drawn up on the same, was not tenable. The Court further held that the appellant's case as made out in the writ petition disentitled her to the relief asked for by her and for that reason the question of moulding or modifying the relief to be granted or directions to be issued did not arise.

Issues: 1. Whether the pronouncement made by Mallick, J. , on April 1, 1963, was a judgment or an award? 2. Whether the appellant was entitled to the relief asked for in her writ petition?

Ratio Decidendi: 1. In order to be an award the pronouncement must be preceded by a valid reference to arbitration. Such a reference in a suit can only be made if all the parties agree, that any matter in difference between them in the suit shall be referred to arbitration. Therefore in order to be an award there must be a reference of the difference by agreement of parties. 2. The appellant's positive case was that she had no knowledge of the reference to arbitration nor did she give her consent to such a reference either expressly or impliedly. That being her case, is it open to her to contend that the pronouncement made by Mallick, J. , on April 1, 1963, should be treated as an award? Can she be allowed to contend before its that even though she was completely ignorant of the reference to arbitration and even though she never gave her consent to the reference, yet the pronouncement should be treated as an award in order to give her the opportunity and the facility to lake steps for having the award set aside because she is aggrieved by the terms thereof? It appears to me however, that there is no foundation or basis for the appellant's contention that the pronouncement made by Mallick, J. , on April 1, 1963, is an award or a pronouncement in the nature of an award.

Final Decision: The appeal was dismissed with costs to the appearing respondents Nos. 1 to 4. The respondent No. 5 will pay and bear his own costs.