- (1.) D. K. Seth, J. Lala Sumer Chandra Jain, since deceased had instituted Original Suit No. 28 of 1967 before the Civil Judge, Bijnor. The respondents No. 3 to 7 have been substitute in place of Lala Sumer Chandra Jain. In the said Suit parti tion was asked for in respect of ancestral properties prescribed in the Schedule to the plaint. In the written statement, the petitioner, who was defendant in the suit con tended that the said properties have already been partitioned and that in the event it is held that there is no partition, in that event two other properties which are not included in the suit should also be included. At this stage when the plaintiff was being examined the parties had agreed to refer the dispute for Arbitration to Lala Pyare Lal. Thereupon appropriate orders were passed in the said suit on the basis of Arbitration agreement to which I would be referring shortly, hereinafter. The said Lala Pyare Lal had given an award on 20th November, 1969. The plaintiff applied for setting aside the said award which was registered as Misc. Case No. 30 of 1971. The defendant objected to the same. However, by an order dated 30-7-1983 passed by the learned Civil Judge the Award was set aside. Against the said order an Appeal being Appeal No. 225 of 1983 was preferred. By an order dated 26-7-1995 the said appeal was dismissed. It is against these orders dated 26-7-1995 and 30-7-1983 the present writ petition has been preferred.
(2.) ENGLISH translation of both the impugned orders and the agreement for ar bitration have been furnished and have been taken on record. Sri R. K. Jain, learned Counsel appearing on behalf of respondents, however, dispute the correctness of the translation of the agreement for arbitration. He has furnished his translation of the agreement, which is also taken on record. Sri S. N. Verma learned Counsel for the petitioner contends referring to the Arbitration agreement that the reason of the terms of the agreement it is no more open to the plaintiff to challenge the said Award. According to him both the learned courts below have misdirected themselves in dealing with the merit of the case to which the Court cannot go into in view of the said arbitration agreement. Sri R. K. Jain, learned Counsel for the plaintiff-respondent on the other hand contends that both the courts below have found on facts that the award was liable to be set aside. According to him the said finding of facts have assumed concurrent finding of facts. In exercise of writ jurisdiction, according to him, this Court is not empowered to interfere with the concurrent findings of fact. He further contends that the courts below have come to a finding that the Arbitrator was biased against the plaintiff because of his relations with the defendant. This Court, therefore, should not enter into the disputed questions of fact. Both the learned Counsel for the parties have referred to certain decisions to which I shall be referring shortly, hereinafter. In order to appreciate the situation it is necessary to refer to the arbitration agreement as translated by Sri Verma, is quoted below: "it is submitted that the parties have agreed for arbitration. Sh. Pyare Lal S/o Sh. . Munshi Lal caste Vaish resident of Nagina (Bijnor) is being appointed as an arbitrator. The said S. Pyare Lal is real brother-in-law (Sale) of the defendant Sh. Shikhar Chand Jain and has appeared a witness on behalf of defendant. Inspite of relationship and his having ap peared as witness both the parties have appointed him as an arbitrator. The said arbitrator is authorized to give his award on the basis of secret or open inquiry or on the basis of his personal knowledge he is further authorised either to take or not to take any evidence. In any event the award of the arbitrator shall be final and binding on the parties and the parties shall have no right to file objections against the award. The arbitrator has agreed to give his award. The paper may kindly be handed over to the arbitrator. "
(3.) SRI R. K. Jain has disputed the English translation and has furnished his version, which is quoted below: "it is submitted that the parties have agreed for arbitration. They appoint SRI Pyare Lal son of SRI Munshi Lal, caste Vaishya, resident of Nagina, district Bijnor to be an arbitrator. The said SRI Pyare Lal is the real brother-in-law (Sale) of the defendant SRI Shikhar Chand Jain and has also appeared as witness on behalf of the defendant. Inspite of relationship and his having appeared as witness both the parties appoint him as an arbitrator. Whatever award the aforesaid arbitrator will give will be binding and acceptable to the parties and they will have no objection to the said award even if it is given on secret or open information or personal knowledge or with or without evidence. The Arbitrator has also agreed to give his decision. The papers may kindly be handed over to the Arbitrator. " A reading of these two translations, shows that there was a clause in the agreement as translation by Sri Verma "in any event the Award of the Arbitrator shall be final and binding on the parties and the parties shall have no right to file objection against the award. " Whereas Sri R. K. Jain, has translated the said clause to the effect, "whatever award the aforesaid arbitrator will give will be binding and acceptable to the parties and they will have no objection to the said award even if it is given on secret or open information or personal knowledge or with or without evidence. " Though much stress has been laid by both the learned Counsel for the parties on the said terms of the agreement but there seems to be no material difference in the two translation. Erudite arguments and counter arguments have been made by both the learned Counsels for the parties and many points have been raised. In my view it is not necessary to refer to such erudite exchanges of the learned Counsels for the parties for our present purpose. Admittedly more erudite, Counsels' arguments are more confusing.;