Decided on May 12,1952

SIABAR SINGH Respondents


Sarjoo Prosad, J. - (1.) THE second appeal and the civil revision arise out of the same judgment of the court of appeal below. A preliminary objection has been raised that the second appeal is not maintainable.
(2.) THE facts giving rise to the appeal and the application are that a suit for declaration of title and recovery of possession in respect of a small area of land in khata No. 248 forming part of plot No. 2846 was instituted by the plaintiffs-petitioners. THE suit was filed in May, 1948. During the pendency of the suit on the 19th May, 1949, an application was filed for reference to arbitration purporting to be on behalf of the parties to the suit. THE court on the basis of that petition made an order of reference. In the agreement for reference, it appears that five arbitrators were named to decide the dispute between the parties. On the 5th of September 1949, a document was filed on be-half of the arbitrators signed by three of them which was said to be an award given by the majority of the arbitrators concerned. THE court, after having allowed time to the parties to file objections, if any, made the award a rule of the court and directed a decree to be passed on the basis of the award. It was against this decree that an appeal was filed to the court below on the ground that the reference was incompetent and the award was on the face of it illegal, and the court below overruling these objections affirmed the decree based upon the award. On these facts, it is quite clear that although an appeal may have been competent before the court of appeal below, a second appeal to this Court could not lie against the decision of the learned Subordinate Judge. THE preliminary objection, therefore, must prevail and the appeal is dismissed as being incompetent. The question, however, remains whether the application against the order of the learned Subordinate Judge should be entertained. There appear to be two vital objections to the award which, in my opinion, must prevail. It is firstly contended that the reference to arbitration was without any sanction being accorded to the guardians of the minors to enter into the agreement. It is pointed out that plaintiffs 3 and 4 were minors to the suit and so was defendant No. 3 also a minor. These minors were represented in the suit by their natural guardians. The natural guardians entered into the compromise but there is nothing in the order-sheet to indicate that these natural guardians sought the leave of the court to enter into the compromise on behalf of the minors, or that any such leave was accorded to those guardians. It has been repeatedly held that Order 32, Rule 7. Civil P. C., is as much applicable to the case of a guardian-ad-litem entering into a compromise or into an agreement for reference to arbitration as in the case of a natural guardian, appearing on behalf of the minors. In either case compliance with the provisions of Order 32, Rule 7 is essential, and that not having been done, the reference cannot be said to be a valid reference on behalf of the minors concerned. In 'Kedar Nath v. Basant Lal', 18 Pat 271, this Court pointed out that where the next friend or guardian-ad-litem of a minor party agrees to join in a reference to arbitration, the leave of the court to do so on behalf of the minor must first be obtained by the next friend or guardian-ad-litem, and the leave must be expressly recorded in the proceedings in compliance with the provisions of Order 32, Rule 7 of the Civil Procedure Code; and the omission to obtain leave renders an award or any decree based upon it voidable at the instance of the minor. It is to be remembered that the suit was for declaration of title and recovery of possession in respect of a certain piece of land in which the minors as well as the other plaintiffs had a common case and so had the minor defendant a common case with the other defendants. That being so, the award based upon such a reference was not a valid award and could not be given effect to. Section 21 of the Arbitration Act provides that where in any suit all the parties interested agree that any matter in difference between them in the suit shall be referred to arbitration, they may at any time before judgment is pronounced apply in writing to the Court for an order of reference. It is clear on the language of this section that all the parties interested in the suit should agree to refer the matter in dispute otherwise the reference cannot be operative so as to dispose of the suit itself. The only exception to this is provided in Section 24 of the Act wherein it is laid down that where some only of the parties to a suit apply to have the matters in difference between them referred to arbitration, the court may, if it thinks fit, refer such matters to arbitration, but the suit shall continue so far as it relates to the parties who have not joined in the said application. In the present case Section 24 could obviously have no application because it was impossible for the court to refer the matter in dispute between the parties to the reference to arbitration only and continue to proceed with the suit so far as the minors are concerned. Having regard to the nature of the suit itself, it was essential that all the parties to the suit should have joined in the reference, and that leave ought to have been obtained by the natural guardians on behalf of the minors before a valid reference could be made. The learned Subordinate Judge appears to have thought that because the reference in the present case was at the instance of the pleaders for the parties, therefore Order 32, Rule 7 of the Code probably had no application. In this connection he relied upon a decision of the Judicial Committee of the Privy Council in 'Sourendra Nath v. Tarubala Dasi', AIR 1930 P C 158. He seems to be of the opinion that it is within the power of the pleaders, who represented the parties, whether the power was express or implied, to refer the dispute to arbitration on behalf of their clients. In the present case, it has not been shown in the first instance whether the pleaders had the power to refer the matter in dispute to arbitration on behalf of the parties, and secondly in any case even these pleaders were bound by the provisions of Order 32, Rule 7; their position was no better than that of an agent representing their principals, and consequently in the case of minors it was necessary that leave of the court should have been obtained before any reference could be made. The reference itself being illegal, the whole proceeding which followed thereafter must be held to be illegal. The second objection arises on account of the fact that prima facie the award which has been adopted by the court below is signed by only three of the arbitrators. It is true that the award need not be signed by all the arbitrators if some of them refused to sign it. What is, however, essential is to find out whether or not all the arbitrators have deliberated together and then come to a certain decision, and if after due deliberation a decision has been arrived at with which some of the arbitrators have disagreed, it will not materially affect the award where the parties are to be governed by the decision of the majority. The award undoubtedly recites that all the arbitrators conferred together in the case, heard the parties and took evidence and arrived at a certain decision, though subsequently two of the arbitrators refused to sign it. But the learned Munsif made no endeavour to examine any one of the arbitrators in proof of this recital in the document. In the absence, therefore, of any definite material to show that all the arbitrators had sat and deliberated together before coming to their conclusion, the award which purports to be signed only by three of the arbitrators could not have been accepted by the court. These two objections, therefore, in my opinion, must prevail. The order of the court below adopting the award as a rule of the court and passing a decree on the basis of the award is without jurisdiction and must be set aside. The mere fact that an objection was not filed by any of the parties to the award does not altogether absolve the court from its responsibility of deciding whether there was a competent reference and whether the award was a valid award on the face of it. There are matters which really go to the root of the award itself and irrespective of any objection by the parties, these matters had to be decided by the court before a decree could be passed on the basis of the award. Section 16 (1) (c) of the Arbitration Act itself provides for such a case, namely, where an objection to the legality of the award is apparent on the face of it then the court may either remit the award or may supersede it and proceed to decide the suit on merit. In the present case, as I have shown above, the reference to the arbitration was an incompetent and invalid reference and could not bind the minors or for the matter of that the other adult parties to the suit.
(3.) FOR these reasons, this application must be allowed and the order of the court below adopting the award must be set aside. The suit should now be heard and decided on merits by the learned Munsif according to law. The petitioners will be entitled to their costs; hearing fee one gold mohur.;

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