DEEP NARAIN SINGH Vs. DHANESHWARI

JUDGEMENT

(1.) TLIIS is an appeal from the order of the Additional Subordinate Judge, Muzaffarpur, dated 31-3-1955, setting aside the award given by the arbitrators outside the Court.

(2.) THE facts are short and simple. During the pendency of Title Suit No. 83 of 1951 in the Court of the 1st Munsif, Muzaffarpur, relating to a portion of kasht lands belonging to Kanhaiya Singh, the plaintiffs and the defendants first party by a written agreement dated 9-8-1951 referred, without the intervention of the Court, their dispute in respect of the aforesaid suit land and other matters to the arbitration of five persons, namely, (1) Ramautar Singh, (2) Ram Prasad Singh and (3) Jugeshwar Singh, all of village Belaur, (4) Ramantar Singli of village Mohini and (5) Barham-deo Singh of village Nasratpur, who are defendants second party, and on the same day, that is 9-8-1951, the arbitrators gave their award (exhibit 4). Subsequently, the arbitrators registered the award on 8-9-1951. THE registered award is exhibit 4(a). On 6-11-1951 the plaintiffs presented an application before the 1st Subordinate Judge, Muzaffarpur, under Ss. 14 and 17 of the Arbitration Act, alleging that the arbitration agreement (exhibit 3), the original award and the registered award were in the custody of arbitrator Ramautar Singh of Belaur and praying that the said arbitrator be directed to file the award in Court and that, after hearing the parties, a decree in terms of the award be passed. (2) Two sets of written statements were filed, one on behalf of defendants Nos. 1, 2, 3, 4, 7 and 9 and the other on behalf of defendants Nos. 5, 6 and 10 to 15. THEir defence is practically common. THEy challenged the existence and validity of the arbitration agreement and also the validity of the award based upon invalidity ot reference. THEy also attacked the validity of the award on the grounds of want of notice, total absence of hearing and misconduct of the arbitrators. THEy also denied that the notice of the filing of the award was served upon them. THEy further impugned the award on the ground that the subject of the dispute was already pending decision in a Court of competent jurisdiction. THE award was further challenged as invalid on the ground that it exceeded the terms of the reference. THEy asserted that the entire arbitration proceeding was a fake and the award was forged and fabricated through the machination of the Belaur arbitrators.

(3.) EVEN assuming that there was a reference to an arbitration and the Panchnama (Exhibit 3) is a genuine document, the arbitration agreement was invalid and legally ineffective, because all the defendants did not join in the execution of the agreement. It is well to remember that there are fifteen defendants, and, as will appear from the Panchnama, only six of them were parties to this agreement. The other defendants have not joined in the arbitration agreement. It is said that Bigu (defendant No. 3) had the authority on behalf of the other defendants to refer the matter to arbitration and to sign the arbitration agreement or the consequential award. But as held above, this authority has not been established at all. The result is that all the persons interested in the matter of dispute were not parties to the arbitration agreement and it is manifest that when an agreement is not consented, to by all, such an agreement is invalid and cannot give the arbitrators jurisdiction to decide the dispute, and the award given on the strength of such void reference is not void. The award passed upon such invalid reference does not bind even the consenting parties. It is void altogether. This does not require a detailed investigation. It has been laid down by their Lordships of the Privy Council in Chhabba Lal v. Kailu Lal, AIR 1946 P. C. 72 that if there is no valid reference, the purported award is a nullity. As, in the present case, there was no unanimous reference to arbitration the entire award based upon such invalid reference must be held to be a nullity, and on this ground alone the award is liable to be set aside and the plaintiffs unsuited.