- (1.) The brief facts giving rise to this appeal are that one Jai Ram and Khushal Chand jointly purchased a vacant plot somewhere in the year 1967. Later on the parties raised construction thereon. In the year 1979, Jai Ram filed the suit for possession through partition against the successors-in-interest of Khushal Chand because meanwhile he had died. The suit was contested by the defendants inter alia on the ground that the partition had already taken place between the parties and they had raised construction accordingly. However, the trial Court decreed the plaintiff's suit vide judgment and decree dated August 16, 1984. Dissatisfied with the same, the defendants filed the appeal. During the pendency of the appeal in the Court of the Additional District Judge Karnal, the parties reached a compromise on July 30, 1985, and made a joint statement appointing Shri Harcharan Singh Khurana as the sole arbitrator for the settlement of the dispute regarding the partition of the house, agreeing to abide by the award given by him and in furtherance of the said statement, the said Harcharan Singh Khurana was appointed as the arbitrator. He inspected the site and filed his award on August 16, 1985. On that very day the learned Additional District Judge passed the following order :- "Award received. In terms of joint statement already recorded on 30th July, 1985, the parties are bound by the award. Both learned counsel for the parties as also the parties who are available in the Court affirm the above position. However, it is noticed that two of the respondents are minors for which application will have to be made for seeking permission of the Court on their behalf. The learned counsel for the respondents asks for time for making appropriate application because the next friend and mother of the minors, Krishna Devi, is not available today. Request for date is not opposed. Adjourned to 24th August, 1985, for moving appropriate application/further proceedings." On August 24, 1985, no application for seeking permission of the Court on behalf of the minors for the purpose for which time was sought, was moved by the plaintiff and the case was again adjourned to September 6, 1985, for consideration. On that day Krishna Devi, the mother of the minor plaintiffs Rajpal and Parveen Kumar moved the application with the prayer that she may be permitted to engage some other counsel who may defend the appeal. It was alleged in paragraph 3 therein :- "That on the last date of hearing the counsel for the respondents gave a statement for the appointment of a person as Arbitrator in the appeal entitled above. At the time of making this statement, the said counsel never consulted with the respondent Krishna Devi and made the said statement for the appointment of an Arbitrator without the consent of Krishna Devi respondent. Thus, Krishna Devi respondent does not want to keep the said counsel as her as well as her minor sons' counsel any more in the above noted appeal." Admittedly no objections were filed on behalf of the plaintiffs to the award which was received in the Court on August 16, 1985. On the basis of the application dated September 6, 1985, referred to above, the learned Additional District Judge vide impugned order came to the conclusion that there was non-compliance of the provisions of Order XXXII rule 7, Code of Civil Procedure, (hereinafter called the Code), as no permission of the Court was sought on behalf of the minors for referring the matter to the arbitrator in appeal. Consequently, it was held that both the reference to the arbitrator dated July 30, 1985 as well as the award made thereunder were illegal and void and could not be acted upon. Consequently, the award could not be made the basis for the decree for compromise. Dissatisfied with the same, the defendants have filed this appeal in this Court.
(2.) The learned counsel for the appellants contended that even in the application dated September 6, 1985, it was never contended that Shri Des Raj, Advocate, was not the counsel for the minor plaintiffs or that he acted without any authority. According to the learned counsel, the only allegation made therein was that Krishna Devi did not want to continue the said Advocate as her as well as her minor sons' counsel in appeal any more because he never consulted them while making the reference to the arbitrator. According to the learned counsel not only Shri Des Raj, Advocate, but even Surinder Pal, elder brother of the minors was also present at the time of the making of the statement of July 30, 1985. The interest of the minors and that of Surinder Pal were the same. Thus, argued the learned counsel, after the award was given by the arbitrator, the plaintiffs could not be allowed to plead that the reference was bad because no specific permission as such was obtained from the Court under Order XXXII rule 7 of the Code. According to the learned counsel, no prejudice is shown to have been caused to the minors. At the most, the non-compliance of the provisions of Order XXXII rule 7 of the Code makes an agreement or an award voidable, and not void as found by the learned Additional District Judge. Nothing was pleaded in the application as to on what ground the reference as well as the award were liable to be set aside. In support of the contention, the learned counsel relied upon Firm Kapur and Sons v. Raj Kumar, 1955 AIR(P&H) 235. On the other hand, the learned counsel for the plaintiffs respondents submitted that the non-compliance of the provisions of Order XXXII rule 7 was fatal and that being so, the reference as well as the award were liable to be set aside and, thus there was no illegality in the order under appeal. Reliance in support of this contention was placed on Chhabba Lal v. Kallu Lal, 1946 AIR(PC) 72and Lilu Mandal v. Smt. Chandra Devi, 1964 AIR(Pat) 498. It was also contended that in any case if the Court finds that no objections as such were filed to the award, the case be sent back to the learned Additional District Judge for that purpose so that necessary objections may be filed by the minors.
(3.) I have heard the learned counsel for the parties and have also gone through the joint statement made by the parties and their counsel on July 30, 1985, appointing Shri Harcharan Singh Khurana as the sole arbitrator for the settlement of the dispute regarding the partition of the house.;