RADHA WALLABH Vs. SETH GOPALDAS

JUDGEMENT

(1.) - In a suit for partition and separate possession, a preliminary decree was passed on 6 January 1943 (Civil suit No. 5-A of 1941, in the Court of the Additional District Judge, Khandwa). The properties were described in the schedule annexed to the decree. List 'A' relates to houses; list 'B' relates to agricultural lands; and list 'C relates to trees.. By an order dated 11 April 1961, Hiralal son of Babalisha, Hiralal son of Dagdusa, and Karsandas son of Varjiwandas were, by the consent of the parties, appointed arbitrators to divide the properties by metes and bounds. The arbitrators filed their award dated 18 August 1961. The defendant Bled objections and prayed for setting aside the award. The plaintiff resisted the objections, whereupon, evidence was recorded. The learned Additional District Judge has set aside the award, under section 30 (c) of the Arbitration Act, as invalid. The learned Judge says:- "True it is that the defendant has not challenged before me the integrity or honesty of purpose of the said arbitrators but his whole contention is that the arbitrators had not acted in a judicial manner in deciding the dispute. From the careful scrutiny of the evidence on record I am convinced that there is much force in the contention raised by the defendant". It is then observed by him that an award, which does not decide all matters in dispute, is invalid and that the arbitrators are bound to apply the principle of natural justice. Having said so, he found that the accounts were not inspected in the presence of both the parties face to face and that the whole enquiry was made in a superficial and fishy manner. Aggrieved by that order the plaintiff (now represented by the appellants) filed this appeal.

(2.) SHRI Seth endeavoured to support the judgment of the trial Court by advancing certain contentions which we would presently consider. Before we do so, it is useful to recapitulate the scope of enquiry and the limits of the powers of the Court in dealing with an application for setting aside an award, which do not appear to have been present to the mind of the trial Judge. His order is superficial and does not carry conviction. The position of the law is this :

(3.) THE second objection is that the value of the properties as given in the lists in the year 1941, considerably increased, but the arbitrators did not consider this significant feature of the case. This too does not vitiate the award. But that apart, the objection is wholly without substance. Both the parties filed under their signatures lists of properties in respect of which partition was to be effected and they also filed lists of those properties which had already been sold by them. Arbitrator Hiralal son of Dagdusa, who was examined on commission by the trial Court (in proceedings for setting aside the award) says that both the parties requested the arbitrators that the basis of valuation of property should remain the same as shown in the schedule to the plaint. So also is the statement of Karsandas, who was examined on commission and that of Hiralal son of Babalisha. All the three arbitrators were examined by the defendant as his witnesses. This contention is, therefore, rejected.