MANSHOOR ULLAH Vs. BASHIR UDDIN

JUDGEMENT

(1.) This is a defendant's second appeal against the concurrent decisions of the courts below decreeing the plaintiff-respondents suit for a declaration that a decree obtained by the defendant from the revenue court on the basis of an arbitration award was without jurisdiction, void and not binding on the plaintiff. The facts are these. The plaintiff Bashir Uddin filed a suit before the revenue court under Sec. 59 of the U.P. Tenancy Act for a declaration of his title to a plot of land. The plaintiff claimed that he was the tenant of the plot. The defendant Manshoor Ullah contested the suit but it was decreed by the trial court. He went up in appeal before the Commissioner of Rohilkhand Division. While it was pending, the parties referred the dispute to an arbitrator for decision. It is important to note that the reference was made without intervention or knowledge of the court. The arbitrator decided the dispute in favour of the defendant and gave an award that he was entitled to the plot. The defendant filed the award in court under Sec. 14 of the Arbitration Act and the Commissioner passed a decree in its terms and dismissed the plaintiffs declaratory suit. He overruled the objections of the plaintiff who then went up in appeal before the Board of Revenue. That court held that a second appeal did not lie but heard the case in the exercise of its revisional jurisdiction. The plaintiff repeated his objections against the validity of the award and the decree which was founded on it. He contended that the arbitration having been made without the intervention of the Court, the award was invalid and no decree could have been passed on its basis. The Board rejected this argument and confirmed the award and the decree. The plaintiff did not challenge the correctness or legality of the Board's decision by means of a petition under Art. 226 of the Constitution in this court. Instead he filed the present suit and asked for a declaration that the decree passed on the basis of the award was without jurisdiction. The defendant contended that the award was valid and the Revenue court was competent to pass a decree in terms of the award. His defence was rejected and both the courts have held that the decree passed by the Commissioner and confirmed by the Board of Revenue is without jurisdiction. The defendant has now come to this Court in second appeal.

(2.) After hearing Mr. Mukhtar Ahmad for the defendant-appellant and Mr. J.N. Chatterji for the plaintiff-respondent I am of the opinion that the view taken by the courts below is erroneous. The question before them was not whether the decree based on the award was illegal or erroneous in law but whether it was entirely without jurisdiction. It was conceded by Mr. J.N. Chatterji that the Commissioner had the power to decree the plaintiff's suit or dismiss it. He dismissed it. It is obvious that the decree is not without jurisdiction.

(3.) The courts below have not appreciated the distinction between jurisdiction and its exercise. By way of illustration, if a Court hears a suit which is beyond its pecuniary or territorial jurisdiction, its decree is vitiated by absence of jurisdiction. But if it decides a suit on the basis of hear say evidence or on considerations which are irrelevant, its decision is illegal and is liable to be set aside by the appellate court, if the statute provides for an appeal. In the present case, the commissioner decided the appeal in favour of the defendant on the basis of an award of an arbitrator to whom the matter had been referred by the parties. Even accepting the plaintiffs argument that the award could not have been enforced because the dispute had been referred to the arbitrator without the intervention of the court, this would not take away the jurisdiction of the Commissioner to pass a decree. The plaintiff's remedy was to have the decree set aside by the Board of Revenue on the ground that the Commissioner had illegally taken the award into consideration. He did go up to the Board which heard his objection on merits but rejected it. The plaintiff had another remedy open to him under Art. 226 of the Constitution for having the Board's decision reversed by this Court on the ground that it was vitiated by an error apparent on the face of the record. But he did not avail of it and the decision of the Board has become final.