C L KAVISH Vs. SARANSINGH PRUTHI

JUDGEMENT

(1.) THIS appeal has been filed under Section 39(1) of the Arbitration Act, 1940. The appeal ordinarily lies to a single Judge, It appears that when the appeal came for hearing before the learned single Judge of this Court on 16-6-1978, the appeal was referred to a Division Bench.

(2.) THE few undisputed facts are that the appellant at all times material was the tenant of the respondent-landlord in respect of a flat admeasuring 500 sq. ft. on the ground floor of a building known as Pruthi Building situate at Prabhat Colony, Santacruz (East), Bombay. 'THE respondent was desirous of constructing a new building by demolishing the old building and accordingly he brought an ejectment suit against the appellant on that ground as well as on other grounds such as non-payment of arrears of rent etc. While the suit was pending in the Court of Small Causes at Bombay, the respondent, by a letter dated 26-5-1964 and confirmed by the appellant, agreed to refer all the disputes between the parties to the arbitration of three arbitrators. It is also common ground that pursuant to this letter, the three arbitrators met on 26-51961 itself and after hearing the parties, made and published their award on the same day. It is also not in dispute that no oral evidence was led on behalf of the parties before the Arbitrators. It is also common ground that after the award was published, it was delivered to the parties and they put their respective signatures in token of their acceptance of the same. It is also not in dispute that thereafter the arbitrators further added a rider to the said Award by fixing the quantum of penalty in case of default by either of the parties and signed the same, It may be clarified that the parties are not in agreement with regard to the circumstances in which the said rider came to be added after the publication of the award. This rider was scribed in ink, whereas the earlier "Award was scribed with the aid of a typewriter. It was stated before us that there are 12 flats in the new building and 11 are rented out and one flat is occupied by the respondent-landlord.

(3.) THE learned Judge of the City Civil Court, Bombay, by his judgment and order dated 5-10-1970, held that the arbitrators in fixing the amount of penalty exceeded their right in giving an award on a point or a matter which was not referred to them and that the question of penalty which was not referred to the arbitrators was separable from the rest of the Award, and accordingly the portion of the Award as regards the penalty was set aside. THE relevant findings of the lower Court for the purpose of deciding the appeal before us are that Clauses 1 (b) and 1 (c) of the Award show that right in the property to the extent of 500 sq. ft. of area was created in favour of the present appellant on his paying a certain amount. If the respondent chose to keep him as a tenant, then the appellant was to pay him monthly rent. This would not in any way create any right in the property except tenancy right. THE respondent-landlord had to reserve the right to accommodate the appellant-tenant in the portion of the premises. THE Award states that explicit provision has to be made in the conveyance by the respondent-landlord to reserve the right of occupation of the appellant. In this view of the matter, the learned Judge held that rights in the property to occupy on ownership basis or in case the property was transferred to some other person by the respondent-landlord, rights of occupation still remained in the appellant, are not rights only to seek a declaration but the appellant obtained a right to get possession of the premises on payment of the actual amount of construction. THE rights created in favour of the appellant to that extent restrict or limit the rights of the respondent landlord in the property. Accordingly, the learned Judge held that the Award requires to be registered and till the award is registered, it could not be taken into consideration. In the result, the learned Judge set aside the Award till it is not registered. Feeling aggrieved of the said judgment and order, the appellant tenant has filed the present appeal.