Somasunderam Sarma V. Krishnapillai

1957 Present: H. N. G. Fernando, 1., T. S. Fernando, J., and Sinnetamby, J.

K, A. SOMASUNDERAM SARMA et al., Appellants, and

S. KRISHNAPILLAI et al., Respondents.

S. C, 200-D. C. Batticaloa, 954/Mis.

    Arbitration-Award of arbitrator-Grounds for settings it aside.

An arbitrator who was appointed by Court, with the purported consent of all the parties to an action, to investigate and decide all the matters in dispute between the parties did not permit the 2nd defendant to present his case at the inquiry,

Held, that if the Court had had no power to include the 2nd defendant's claim in the matters under reference; the consent of the 2nd defendant to the ref9rence to arbitration was invalid because it was given in the expectation that his claim would be entertained by the arbitrator. If on the other hand the 2nd defendant's claim was properly made a subject of the reference, then the award was invalid because the arbitrator refused to entertain and consider that claim.

APPEAL from an order of the District Court, Batticaloa.

H. W. Jayewardene, Q.C., with T. P. P. Goonetilleke, V. Thillainathan and N. R. M. Daluwatte, for the defendant-appellant. .

C. Ranganathan, with P. Naguleswaram, for the plaintiffs-respondents.

Cur. adv. vult..

December 10,1951.H. N. G.. FERNANDO, J.-

In this action a number of persons as plaintiffs sued the present first defendant for ejectment from the premises of a Hindu temple and for certain other reliefs on the footing that the plaintiffs are the lawfully elected committee of management of the temple, that the 1st defendant had been appointed priest of the temple by the ten trustees thereof, and that the plaintiffs had given notice terminating the services of the 1st defendant on the ground of alleged misconduct. The 1st defendant filed answer on 7th August 1952 and subsequently filed an amended answer on 5th November 1952. On 6th November the original 3rd plaintiff filed an affidavit moving to withdraw from the case. This motion was put off for consideration and on 24th February 1953 the 3rd plaintiff field fresh proxy for the purpose of canceling the proxy originally granted by him to the Proctor for the plaintiffs. The Journal entry made by the District Judge on this occasion was to the effect that the consent of the latter Proctor to the revocation should be filed. It would appear that this consent was ultimately filed although no mention of the matter is made in the journal entry

On 4th August 1953 the following entry was made of record and it was signed by the present 1st defendant and by some of the plaintiffs :-

"Mr. Subramaniam for plaintiff. & Mr.. Adv. Kanagasunderain. Mr. Edwards for defdt.. & Mr. Adv.. Ariaretnam.. Parties are agreeable to refer all matters in dispute to the arbitration of Mr.. Rasamanikam M.. P.. for Padirippu whose decision parties agree to accept as final.Parties agreed to meet expenses in equal shares.

Papers for 7. 8. 53 and Receipt. "

Thereafter on the same day the learned Judge has made the following further entry which has been signed by the original 3rd plaintiff who is now the 2nd defendant and described as such below his signature..

" 3rd plaintiff K. P.. Seenitamby states that he is not (sic) a sole trustee of the temple and as such his interests are adverse to the plaintiffs and other defdts.

He is agreeable to have this claim of his also decided by the Arbitrator "Under sec. 18 C. P. C. I now make him a defendant styling him as the 2nd defendant. He now signs record. Mr. Subramaniam consents to the revocation of this proxy.

Mr. Theivanayagam will file fresh proxy on 6/8. Call 6/8 for the other Plaintiffs to appear to sign their consent reference for arbitration. "

On 6. 8 .53 the remaining parties plaintiff signed the record after the terms of settlement and the reference were read to them.
We understand from Counsel that when this Appeal was argued before a

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