K V SUBBARAO Vs. S AMMIRAJU

JUDGEMENT

(1.) THESE two Civil Miscellaneous Appeals arise out of a common order passed by the 1st Additional District Munsif, Kovvur. The former Appeal arises out of I A. No. 1609 of 1959 in O. S. No. 224 of 1948 It is a petition filed under Section 33 of the Indian Arbitration Act to set aside the arbitration agreement and the award as ultra vires, void and not binding on the petitioner. The Petitioner' is the 1st plaintiff in O. S. No 224 of 1948. The latter Appeal arises out of I. A. No. 1608 of 1959 in O. S No. 221 of 1948. This petition was filed by the sole plaintiff in O. S. No. 221/1948 for identical reliefs as in I. A. No. 1609 of 1459. THESE Appeals were originally fifed in the District Court, Eluru but were subsequenily transferred to this Court.

(2.) FOR a proper appreciation of the matters in controversy in these appeals, it will be convenient to state the undisputed facts as they emerge form the findings recorded by the trial Court. O. S. Nos. 221 and 224 of 1948 were filed by the Appellants aganst defendants 1 to 31, their tenants. The relief prayed for in the two suits was a permanent iniunction to restrain the defendants from interfering with their cultivation of the plaint schedule lands. The contesting defendants claimed occupancy rights in the lands which were the subject-matter of the suits. They denied the plaintiffs right to eject. Common issues were framed in both the suits and by consent of parties there was a joint trial of the two suits and O. S. No 223 of 1948. The suits proceeded to trial. The parties adduced evidence. The plaintiffs examined their witnesses and marked their documents. The defendants also examined some witnesses At this stage, the parties entered into a compromise and filed a petition which is Ex. B-2 dated the 13th February. 1950. Under the compromise, the parties agreed that the defendants who claimed occupancy rights would be entitled to possession of the land on payment of compensation to the respective plaintiffs. The rate of compensation had to be tixed by the Court as the sole arbitrator. They had also agreed to share the amount which they deposited in the Court of the Revenue Divisional Officer in proceedings under Section 145 Cr. P. C. Under the compromise it was also agreed by the parties that two Advocates, Sri P. Ramalingeswara Rao and Sri K. V Sabbarao should be appointed as Commisaioners to measure the lands claimed by the conceiting defendants and to determine their exact extent for the purposes of enabling the Court to arrive at a correct estimate of the compensation to be paid to the plaintifis. After the Commissioners filed their reports with plans, the then presiding Officer felt it delicate and not desirab'le to act as the sole arbitrator. The plaintiffs and defendants then filed a joint memo into Court, Ex. B-3, on the 21st March, 1950 whereby they nominated Sri S. Ranganadha awamy, an Advocate of the Court, to act as the sole arbitrator for the purposes mentioned in the compromise petition. It would appear that the then presiding Officer enquired of the arbitrator as to whether he was willing to arbitrate. The arbitrator expressed his willingness to article in the matter and filed a memo. Ex B-4 dared the 21st March. 1950, expressing his willingness to act as arbutrator and promising to tile his decision in Court by the 27th March.l950. In memo filed by him, he requested the Court for permassion to receive the relevant documents tor perusal. On the 27 h March, 1950. the Arbitrator filed a fr.emo Ex. B-5, requesting the Court to extend time till the 23th March, 1950. that is the next day. This memo was recorded and the main petition was ordered to be called on the 28th March. 1950. On the 23th March 1950, the Arbitrator tiled Ins decision Ex. B-6. The parties were present in Court on that date and the court passed decrees in terms of the award made by the Arbitrator on the same date. Thereupon, the plaintiffs filed Appeals Nos. 213, 215 and 216 of 1952 in the High Court against the decrees and also C. R. P. Nos. 1495, 1497 and 1493 of 1950. By his judgments dated the 5th February, 1959 Mr. Justice Bhimasankaram dismissed the appeals holding that they were not maintainable as they were directed against decrees passed in arbitration proceedings initiated in a pending suit. The learned Judge allowed the revision petitions. He held that the decrees were passed contrary to the provisions of Section 17 ot the Arbitration Act since the period ot thirty days fixed by that section had not expired. The High Court set aside the decrees and the trial Court was directed to deal with the award in accordance with law. The order of the High Court is dated the 5th February, 1959. The Petition out of which the present appeals have arisen were filed on the 4th September, 1959 after notice to the parties by the Court.

(3.) ON the first of the points, the trial Court held that the agreement to refer to arbitration is valid; on the second of the points that there was a valid reference by the court and on the third of the points that the award was filed in the Court within the time gtanted. ON point No. 4, the trial Court held that the petitioners were not entitled to a notice of the filing of the award. The finding on point No. 5 was that there was no legal misconduct on the part of the Arbitiator and that there was no improper conduct of the proceedings. ON point No, 6, the trial Court held that the applications for setting aside the award were barred by time. As a result of the findings reached by him, the District Munsif dismissed the applications for setting aside the award. In these appeals. Mr. E. Parthasarathy Swamy has contended that the conelusions reached by the trial Court are contrary to law and cannot be sustatred Initially, the learned counsel has contended that there was no valid reference to arbitration. Section 21 of the Arbitration Act, which is in Chapter IV deals with arbitration in pending suits and runs thus: