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1930 Supreme(Cal) 336
CALCUTTA HIGH COURT
Mukerji, J., Mitter, J.
Srimati Golnur Bibi - Appellant
Versus
Sheikh Abdus Samad & Ors. - Respondent
Decided On : 17-07-1930
An appeal would lie from a decree based on an award made on a void reference to arbitration where all the parties interested in the suit have not joined in the submission to arbitration.
Headnote:
arbitration - validity of reference to arbitration - para. 16, Schedule 2 of the Code contemplates an award made in a case where there has been a valid submission to arbitration - appeal lies where there is no valid submission - the words 'otherwise invalid' in para. 15, Schedule 2, Civil P.C., include an invalidity of the kind which makes the reference to arbitration without jurisdiction as all the parties interested had not concurred in the submission to arbitration - an appeal would lie from a decree based on an award made on such a void reference
Fact of the Case:
The plaintiff had instituted a suit for declaration of title and certain consequential reliefs. The suit was instituted on 10th November 1925. Written statements having been filed on behalf of the defence, a commissioner was appointed in March 1926 to make a local investigation. Opposition was offered to the commissioner by some of the defendants when he was doing his work of measurement. The commissioner having reported the matter to the Court, proceedings were instituted against one of the defendants, that is to say defendant 5, to consider whether he should be proceeded against criminally, but eventually the said proceedings were dismissed. The writ issued to the commissioner was recalled in June 1926, and thereafter another commissioner was appointed. In July 1926 the said commissioner on completing his work submitted a report. On 10th August 1926 a petition was filed in Court on behalf of the plaintiff and defendant 5 asking for a month's time for compromise and the plaintiff filed also another petition asking for summons on a witness. The Court adjourned the suit to the 13th August 1926 for hearing unless there was going to be a compromise in the meantime. On 13th August 1926, on a special petition of the plaintiff, two of her witnesses were examined and certain documents were received in evidence, and the suit was adjourned to 16th August 1926. On the last-mentioned date the plaintiff and some of the adult defendants put in a joint petition-agreeing to refer the dispute to certain arbitrators. On that the Munsif passed the following order
Finding of the Court:
The Subordinate Judge held that the appeal was competent because the Court had no jurisdiction to pass a decree in accordance with the award of the arbitrators who are not 'validly appointed as such.' The invalidity in the opinion of the learned Judge consisted in this that the mothers of the minors who were their natural guardians had no authority being Mahomedans, to deal with the property of their minor children.
Issues: The question which arises at the outset for our consideration is whether the appeal before the Court below was competent, assuming for the moment that there was no valid reference to arbitration.
Ratio Decidendi: The words 'otherwise invalid' in para. 15, Schedule 2, Civil P.C., include an invalidity of the kind which makes the reference to arbitration without jurisdiction as all the parties interested had not concurred in the submission to arbitration.
Final Decision: The appeal was allowed and the order appealed from being set aside, the decree passed by the Court of first instance is restored. There will be no order for costs in this or in the lower appellate Court.
JUDGMENT
Mukerji, J. - This appeal has been preferred by a plaintiff from an appellate order of the Subordinate Judge allowing an appeal from a decree based on an arbitration award and remanding the suit to the Court of first instance for trial. The relevant facts are the following:
2. The plaintiff had instituted a suit for declaration of title and certain consequential reliefs. The suit was instituted on 10th November 1925. Written statements having been filed on behalf of the defence, a commissioner was appointed in March 1926 to make a local investigation. Opposition was offered to the commissioner by some of the defendants when he was doing his work of measurement. The commissioner having reported the matter to the Court, proceedings were instituted against one of the defendants, that is to say defendant 5, to consider whether he should be proceeded against criminally, but eventually the said proceedings were dismissed. The writ issued to the commissioner was recalled in June 1926, and thereafter another commissioner was appointed. In July 1926 the said commissioner on completing his work submitted a report. On 10th August 1926 a petition was filed in Court on behalf of the plaintiff and defendant 5 asking for a month's time for compromise and the plaintiff filed also another petition asking for summons on a witness. The Court adjourned the suit to the 13th August 1926 for hearing unless there was going to be a compromise in the meantime. On 13th August 1926, on a special petition of the plaintiff, two of her witnesses were examined and certain documents were received in evidence, and the suit was adjourned to 16th August 1926. On the last-mentioned date the plaintiff and some of the adult defendants put in a joint petition-agreeing to refer the dispute to certain arbitrators. On that the Munsif passed the following order:
Parties have put in a joint petition referring the ease to arbitration. But defendants 31 and 82 have not joined therein, and the Court guardian for the minor defendants 11, 14 and 15 and (the minor) pro-forma defendants 23 and 24 is not removed. The suit be put up to-morrow for orders.
3. By petitions filed on 17th and 19th August 1926 the defects noted in the above order were rectified; that is to say, defendants 31 and 32 joined in the application for reference, and the Court guardian for defendants 11, 14, 15, 23 and 24 being removed, their natural guardians were appointed guardians-ad-litem on their behalf. On 20th August 1926 the natural guardians appointed as guardians-ad-litem as aforesaid put in a petition stating that they had already applied on 16th August 1926 referring the dispute to arbitration for themselves and their wards, and praying that orders might be passed for reference of the dispute to the said arbitrators in accordance with the terms of the said petition. The Munsif thereupon Ordered:
Put up to-morrow in presence of the pleaders for the parties for order on the petition for referring the suit to arbitration.
4. The order sheet contains the following order passed by the Munsif on 28th August 1926:
The natural guardian for minor defendants 11, 14 and 15 and (the minor) pro-forma defendants 23 and 24 put in a petition stating that they have joined themselves, and on behalf of the minors in. the petition dated 16th August. 1926 for referring the suit to arbitration and praying to appoint the per one nominated therein as arbitrators accordingly. Heard pleaders. Parties agree to refer the suit to arbitration. Let Babu Togendra Nath Sen, Babu Manmatha Nath Sarkar and Babu Ekkari Basu nominated by the parties be appointed arbitrators.
5. The rest of the order need not be quoted.
6. The time within which the arbitrators were to submit their award was extended from time to time and eventually the award was filed on 18th November 1926. The parties were directed to file their objections, if any, within ten days. From an order passed on 30th November 1926 it would appear that the arbitrators had los
