Decided on April 06,1960

BABULAL Respondents

Referred Judgements :-



Sarjoo Prosad, C. J. - (1.)THIS appeal is directed against the order dated 9th June, 1956, passed by Shri Chander Singh Mertia, Senior Civil Judge, Churu, decreeing the suit of the plaintiff in terms of an award.
(2.)THE appeal has been preferred by the plaintiff and one of the defendants in action, which was a suit for partition of ancestral property instituted by the appellant Hanuman against his father, the defendant No. 1, who is the other appellant, and his younger brother Babu Lal, who is the defendant No. 2 and respondent here.
The plaintiff alleged that they were members of a joint Hindu family, and as such the plaintiff was entitled to one-third share. The subject-matter of the partition consisted of one-half share of a Haveli belonging to the parties situated in the town of Ratangarh. The other half belonged to another person Goverdhan Prasad, who was also a defendant in the suit. This Haveli was said to be the ancestral property, in which the plaintiff claimed his share. He also claimed partition of certain movable properties. In the plaint the share of the plaintiff in this ancestral house was valued at Rs. 2,000/-while the share of the movable property at Rs. 500/-; in other words, the total valuation of the suit given in the plaint was Rs. 2,500/ -. The plaintiff admitted that the Nohara and another Haveli was the self-acquired property of his father, and, therefore, those could not be subject-matter of partition.

The suit was resisted by the defendant No. 2 alone. The father, Mahadev, defendant No. 1, did not contest the suit, and on the contrary supported the plaintiff's claim; nor was the suit contested by the other defendant Goverdhan Prasad. Babu Lal alleged that the suit for partition should be dismissed on the ground that it sought partition of some of the joint family properties only, and did not include the other properties of the joint family also. He admitted that the Haveli of which the plaintiff claimed partition was joint family property; but he denied that some of the other properties, which were claimed to belong exclusively to the defendant No. 1 were the self-acquired properties of the defendant. He claimed all these properties as ancestral property, which should be the subject-matter of partition. His submission accordingly was that the suit was not maintainable only for the partition of the Haveli, and as such the suit should be dismissed; but he wanted partition of the entire joint family properties stated by him above, including the assets of the joint family firm Chandanmal Mahadev.

The suit was filed originally in the Court of the Civil Judge, Ratangarh, where several issues were framed, including the second issue, which involved the question whether the suit lay within the jurisdiction of the Court; but it appears that before any decision could be taken on the issue in question, the parties filed an application agreeing to refer their dispute in the suit to arbitration. This was on the 6th of April, 1954; and on the terms of the agreement, the reference was to be made to the. arbitration of three persons, Sagarmal, Ghanshyam Das, and Naurang Das, Sagarmal being the Sarpanch. On that application the Court ordered reference to arbitration, and as agreed in the reference, for decision of the subject-matter in dispute by the arbitrators. The arbitrators gave an award, which they filed in Court on the 22nd of April, 1954. They directed that all the immoveable properties should be treated as joint family properties, and should be partitioned; they further directed that the assets of the firm Chandanmal Mahadev, which was also a joint family firm, should be divided between the parties. In addition, they held that a sum of Rs. 1,000/- be given to the defendant Babu Lal for his maintenance for 16 months. It is not necessary to refer to the other terms of the arbitration agreement in view of the decision which we are about to give as to the competency of the appeal. The plaintiff and the defendant No. 1 objected to the award on various grounds, and the Court of the Civil Judge, Ratangarh, instead of disposing of the objections on their merits at that stage, proceeded to decide the question about the valuation of the suit. He held that he had no jurisdiction to entertain the suit, inasmuch as he found that the value of the subject-matter of partition was beyond his pecuniary jurisdiction. After that finding the obvious course which he should have adopted was to return the plaint for presentation to the proper court, instead he wrote to the District Judge for transfer of the case to a Court of competent jurisdiction. The learned District Judge, as it appears, merely as a matter of routine directed the case to be transferred for disposal by the Civil Judge of Churu, and the learned Civil Judge, Churu, then disposed of the matter by the order under appeal.

Mr. Vyas for the respondent has raised a preliminary objection to the maintainability of the appeal. He contends that since the valuation of the suit was Rs. 2,500/-as mentioned in the plaint, the appeal did not lie to this Court against the order of the Civil Judge, Churu, but to the Court of the District Judge under sec. 21 of the Civil Courts Ordinance. Mr. Bhandari, the learned counsel for the appellants, however, refutes this preliminary objection on the ground that the actual valuation of the suit according to him, as gathered from the pleading of the parties, should be much more than Rs. 10,000/-, and, therefore, the appeal would lie to this Court. The difficulty in accepting the argument of the learned counsel for the appellants on this question is that the Court of the Civil Judge, Ratangarh, before which the suit was filed, did not decide any question about the valuation of the suit before making the reference to arbitration. If it bad come to a finding that the valuation was much more than Rs. 2,500/- as given in the plaint, the position might have been different otherwise one would assume that the valuation of the suit as given by the plaintiff in the plaint should be taken as correct. It is true that the defendant himself contended that the suit was under-valued, and that the actual value of the subject matter involved in the partition was beyond the pecuniary jurisdiction of the Court. Nevertheless, there was no decision given on these questions by the Court itself. In other words, on the face of the plaint the Court assumed jurisdiction to deal with the matter, and when the arbitration agreement was filed, it made a reference to the arbitrators to decide the matters in dispute. Mr. Bhandari relies upon the decision of the Calcutta High Court in Lok Nath Saha vs. Radha Gobind Saha (1) in support of his contention that the valuation of the suit in a case of this nature would not depend upon the value of the claim as mentioned by the plaintiff; but that it should depend upon the whole subject-matter of the partition, or the valuation of all the properties which are sought to be brought in the hotchpot for partition by the various parties. We think, however, that it is unnecessary for us at this stage to decide this question finally, because we are of opinion that the order of the learned Civil Judge of Churu has to be set aside being without jurisdiction on a much shorter point.

(3.)IT is to be remembered that it was the learned Civil Judge of Ratangarh who made the reference to arbitration, as the suit had been filed before him. The award, therefore, could be presented only before that Court, which had made the reference. This obviously follows from the provisions of sec. 31 of the Arbitration Act, which provides that all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or persons claiming under them have to be decided by the Court in which the award under the agreement has been, or may be, filed and by no other Court. Sub-sec. (3) of sec. 31 also provides that all applications regarding the conduct of arbitration proceedings or otherwise arising our of such proceedings should be made to the Court where the award has been, or may be, filed, and to no other Court; and similarly sub-sec. (4) specifically says that - "notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, where in any reference any application under this Act has been made in a Court competent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference and the arbitration proceedings shall be made in that Court and in no other Court. " Having regard to these specific provisions, it was mainly and solely for the Court of the Civil Judge, Ratangarh, to decide about the validity or otherwise of the award and the arbitration proceedings, including the validity of the reference. No other Court had jurisdiction in the matter. Therefore, the steps taken by the learned Civil Judge in asking the District Judge to transfer the proceedings to the Civil Judge of Churu and the subsequent order made by the learned District Judge in compliance with the requisition were entirely without jurisdiction. Since the matter has come before us, we, in the exercise of our revisional jurisdiction also, think it right even at this stage that those orders should be set aside. In the result we hold that the learned Civil Judge of Churu had no jurisdiction to deal with the matter at all, and the order under appeal passed by him is, therefore, ultra vires, the officer being functus officio under the terms of sec. 31 of the Act to deal with any such matter. The order, therefore, has to be set aside, and the case must go back to the Civil Judge of Ratangarh to dispose of the objections according to law. IT would be open to the learned counsel for the appellants, subject to any valid objection that the respondent may raise before the learned Civil Judge, to consider whether the reference itself was invalid because the Court entertaining the application for reference to arbitration had no jurisdiction to entertain the same on the ground that it was beyond its pecuniary jurisdiction.
With these observations we set aside the order under appeal. In the circumstances the parties will bear their own costs. .


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