RADHA KISHAN Vs. SAPATTAR SINGH

JUDGEMENT

(1.) THIS is a first appeal from order dismissing the objection, of the appellants to an arbitration award. On the 3rd of August 1951 a reference to arbitration was made by Sapattar Singh as party no. 1 and Radha Kishan and Tegh Singh as party no. 2 for the settlement of certain disputes that had arisen between them in respect of a brick kiln business, to the arbitration of certain named arbitrators. An award was made on the 11th of November 1951. On the 21st of November 51 Sapattar Singh filed an application for calling for the award from the arbitrators and making it a rule of the Court. Notices were issued and a written statement was filed on behalf of the appellants to the effect that there was no dispute between them and Sapattar Singh, because the real person who was interested in the brick kiln business and with whom there was a dispute of Sapattar Singh was one Deo Raj and that the appellants were only his karkuns and, therefore, there could be no dispute with them. The other question that was raised was that the appellants had no notice of the arbitration proceedings and consequently they could not make any proper appearance before the arbitrators. The appellants also contended that they had in fact made no reference to arbitration and that the arbitration agreement that was produced in the case had been forged on a blank piece of paper on which the appellants' signatures or thumb-marks had been obtained earlier.

(2.) THE controversy that arose in the court below, therefore, centered round the following Questions:

(3.) ON appeal Mr. Brij Lal Gupta has raised two questions in the main. First, that the arbitration agreement was bad in law because there was, in fact, no dispute, as there could not be, in his view of the matter, because Radha Kishan and Tegh Singh were karkuns of Deo Raj and the dispute really was with Deo Raj. Mr. Gupta stated that the court below has erred in law in not permitting him to raise this question and to give evidence on it. The Court below took the view that the appellants could not lead evidence to show that they had not referred the dispute to arbitration. The learned Judge has precluded the appellants from giving this evidence on the ground that such evidence was barred by the provisions of Section 91 of the Indian Evidence Act. Mr. Gupta's contention was that this View of the learned Judge was wrong. Mr. Gupta relied on a single Judge decision of this court in Babu Ram v. Lala Ram, AIR 1929 All 415 (A); where Ashworth, J. held that Section 91 of the Indian Evidence Act does not apply to an agreement to refer to arbitration because such an agreement was neither a contract nor a grant nor other disposition of property. We are unable to agree with this decision for in our view an arbitration agreement is a contract within the meaning of Section 91 of the Indian Evidence Act. ( Section 10 of the Indian Contract Act states that agreements are contracts for it says: