K P DALAL Vs. R S JAMADAR

JUDGEMENT

(1.) THIS revisional application has been preferred by the plaintiff against the decision of Mr. Lalkaka, Small Cause Court Judge at Bombay. The plaintiff had filed an application which was registered as suit No. 170 of 1944 for ejectment against the opponent. According to the plaintiff the opponent was his sub-tenant of certain premises situated at Gowalia Tank Road, and he wanted possession of the premises for his own use. The suit first came up for hearing before Mr. Lalkaka on January 27 last. The plaintiff's case is that it was suggested by the opponent's counsel on that day that the learned Judge should inspect the premises on February 9 and accordingly the learned Judge saw the premises and the hearing of the suit was adjourned to February11. On that day the parties agreed that the matters in dispute between them should be decided by the learned Judge as an arbitrator; Mr. Lalkaka suggested that he would pass a decree in the petitioner's favour if the latter found for the opponent before March 30 some premises reasonably suitable to the opponent and in respect of which the latter would have to pay rent not exceeding Rs. 25 per month. The said suggestion of the learned Judge was accepted by the parties, no evidence was taken or recorded on that day and the hearing of the said suit was adjourned till March30. According to the petitioner he searched for and found certain premises for the occupation of the opponent, but the latter did not approve of the same. On March 30 the suit was adjourned to the next day without any evidence being heard. On March 31, when it was mentioned to the Court by the opponent's advocate that none of the premises pointed out by the petitioner were suitable to him, the learned Judge immediately passed an order dismissing the petitioner's suit.

(2.) THE opponent's case as appearing from the affidavit filed in this Court is that at the first hearing of the suit on January 27, the learned Judge enquired of the advocates of the parties as to whether they wanted a formal trial or whether they were prepared to leave the matter to him to be summarily decided as an arbitrator after hearing the respective advocates and inspecting the premises. Both the advocates agreed to the learned Judge hearing the facts from them and after inspection of the premises by the Court to submit to his decision as suggested. THEreafter the learned Judge inspected the premises on February 9, and gave his decision on March31. According to the petitioner, however, the suggestion for arbitration was not made until the hearing on February 11 after the inspection of the premises and that it Was on February 11 that the learned Judge suggested that the matter should be referred to the sold arbitration of the respondent's advocate. That proposal was not agreed to by the petitioner, and ultimately both parties agreed that the matters in dispute should be decided by the learned Judge as an arbitrator.

(3.) WHERE the parities merely agree that they will abide by the decision which the Court may give after taking such evidence as it thinks fit or after inspecting the property, the Court does not act as an arbitrator, although there is a difference of opinion among the High Courts as to whether the decision in such a case is appealable or not. The point arising in this case, however, is not so much as to whether the decision is appealable but whether the Judge was a pure arbitrator and his decision an award under the Arbitration Act of 1940, so that the application for reference must be in writing and the formalities for making the award a decree of the Court must be complied with. Mr. Desai has strongly urged that the opponent's own affidavit as well as the order of the Judge show that the learned Judge was to decide the dispute as arbitrator, and that therefore the procedure must be under that Act, because under Section 47 of that Act its provisions "shall apply to all arbitrations and to all proceedings there under," and it is further urged that the Arbitration Act of 1940 is not merely an amending but a consolidating measure. The question, therefore, is whether the proceedings before the Judge became an arbitration when he was asked to decide the dispute as an arbitrator. The word "arbitration" is not defined in the Act, but Chapter IV relating to arbitration in suite-and we are concerned only with such arbitration here-clearly provides that after a written application is made by the parties to refer the dispute to arbitration, the Court shall by order refer the matter to the arbitrator and shall specify a reasonable time for making the award, and that thereafter the Court shall not deal with the matter in the suit save in the manner and to the extent provided in the Act. It is further provided that in certain circumstances the Court may modify or remit the award to the arbitrator or even supersede the arbitration and proceed with the suit. In my opinion, it is clearly implied in these provisions that the arbitrator in this chapter must be a person other than the Judge who forms the Court, and I agree with the reasons given by Sadasiva Aiyar J. in Chengalroya Chetti v. Raghava Ramanuja Doss (1919) 37 M. L. J. 100 for holding that such an application is not one under schedule II of the Civil Procedure Code of 1908, which is now replaced by the Arbitration Act of 1940. There also the parties agreed to abide by the decision of the Judge passed as an arbitrator, and it was held that although the decision was in the nature of an award and binding on the parties to the reference, it was not governed by the provisions of Schedule II, and the decision was not appealable not because it fell under that schedule but because a party cannot go back on his consent to abide by the decision. The learned Judge did not agree with the reasoning to the contrary in Nidamarthi Mukkanti v. Thammana Ramayya (1902) I. L. R. 26 Mad. 76, although he agreed with the actual decision in that case that no appeal would lie against the decision. In a later decision of the same High Court in Sankaranarayana v. Ramaswamiah (1922) I. L. R. 47 Mad. 39, the learned Chief Justice differed from the reasoning in both the former decisions in Chengalroya Chetti v. Raghava Ramanuja Doss and Nidamarthi Mukkanti v. Thammana Ramayya although he agreed with the final orders in both the cases, and he held that on the particular terms of the reference before him the right of appeal was not barred. However, the learned Chief Justice does observe in his judgment that (p. 44) A Court acting extra cursum curi has been said to act as quasi-arbitrator which may be a convenient expression but it does not involve art application of the second schedule to the Code of Civil Procedure which is applicable to arbitration.