RAJ KUMAR Vs. SANT RAM AND ANOTHER

JUDGEMENT

(1.) SHRI Raj Kumar (appellant in this Court) had instituted a suit for the dissolution of partnership and rendition of accounts against Sant Ram and Panna Lal. Panna Lal has been stated by the lower appellate Court to be a proforma defendant and it was Sant Ram who contested the suit. A preliminary decree was passed on 31st May, 1960; this decree was appealed against by Sant Ram but the same was dismissed on 18th March, 1961 with certain directions regarding the accounts; the case was naturally sent back to the Court of first instance with those directions. Thereafter, a Commissioner was appointed by the Court of first instance to go into the accounts but bis report was set aside on objections raised by the parties. Thereupon, the parties referred their dispute to the arbitration of one Shri Lakshmi Chand, Advocate, who filed his award in the Court on 30th January, 1962. Raj Kumar plaintiff -appellant objected to this award and prayed that the same be set aside whereas Sant Ram confined his objection to the prayer that the award be remitted back to the arbitrator for decision of certain points. It appears from the order of the learned Senior Subordinate Judge that the Court of first instance had fixed a date for hearing arguments on the objections raised by Sant Ram but on 27th March 1962, without giving any opportunity to the parties, it set aside the award.

(2.) AGAINST this order, an appeal was taken to the Court of the Senior Subordinate Judge by Sant Ram. After disallowing a preliminary objection urging in competency of the appeal, the lower appellate Court referred to its earlier judgment dated 13th March, 1961 disposing of the appeal from the preliminary decree. The Court has observed that according to the last paragraph of that judgment the shares of Raj Kumar plaintiff and Sant Ram defendant were fixed at ten annas and six annas in a rupee in the joint business and that the date of dissolution was 18th December 1957. It was also observed in the said paragraph that Sant Ram would be entitled at his option to such share of profit of six annas from 18th December, 1957 onwards. The award filed on 30th January, 1962 by the arbitrator, according to this Judgment, shows that accounts were gone into by him up to 17th December, 1957 only and for this reason Raj Kumar objected to it for getting it set aside whereas Sant Ram defendant desired that the amount of his profit from 18th December, 1957 onwards should also be determined and for this purpose the case be sent back. The two objections raised by the two parties having different aspects, the trial Court had fixed 27th March, 1962 for hearing arguments on the objection raised by Sant Ram. On that day, instead of giving a decision on Sant Ram's objection, the trial Court set aside the award, apparently acceding to Raj Kumar's grievance against the award. Holding that the Court of first instance should have given an opportunity to the parties to lead evidence in re of the objections urged by Raj Kumar for getting the award se(sic)and that of Sant Ram for getting the award remitted did not a(sic)e Court of its obligation to hold the requisite enquiry enjoined(sic)Arbitration Act before setting aside the award, the learned Sen(sic)ate Judge reversed the decision of the Court of first instance. (sic)observed by the lower appellate Court that there is no law a(sic)hich if a party to the proceedings requests for remitting (sic)aking decision on a certain point and the other party p(sic)aside the aw(sic) Court can legitimately set aside the(sic)out holding an(sic)the appeal, the(sic)court modified the trial Court's order by directing the latter to give an opportunity to the parties to lead their evidence regarding the objections raised by the plaintiff -respondent and then to decide whether or not the award liable to be set aside. It is against this order that Raj Kumar has preferred this appeal.

(3.) TREATING it as a revision, I now come to the merits of the controversy raised before me. The learned counsel for the petitioner Raj Kumar has submitted that the learned Senior Subordinate Judge was wrong in reversing the order of Shri Harbans Singh Ahluwalia, Subordinate Judge 1st Class, Ambala, dated 27th March 1962, setting aside the award dated 29th January, 1962 inasmuch as the learned Subordinate Judge felt that both the parties were dissatisfied with the award and, therefore, it would promote the cause of justice better if the learned Subordinate Judge himself decided the controversy. The order superseding the reference, according to the learned counsel, should have been upheld because after all the only result was that the Court would decide the controversy and not a layman arbitrator and emphasis is laid on section 5 of the Arbitration Act, which, according to the contention, fully empowers the Court to revoke the authority of an appointed arbitrator By way of analogy, reference has been made to Dr. Hardit Singh v. Bhagai Jaswant Singh, (1964) 60 P. L. R. 3(SIC), where I transferred a case from the Court of a learned Subordinate Judge to the Court of the learned District Judge, though I was of the view that the aggrieved party had not established any grievance entitling him to claim as of right an order of transfer on the ground of bias or partiality on the part of the Court, In my opinion, the analogy is completely misconceived because the Dower to supersede a reference cannot be equated with the power of this Court in the larger interests of justice to transfer a civil suit from one competent Court to another. Reference has next been made to Bhola Nath v. Raghunath Das Mithan Lal A. I R. (SIC), in which a Division Bench upheld inherent jurisdiction in a Court to intervene and supersede the arbitration on grounds other than those mentioned in Schedule 2, Rules 5, 8 and 15 of the Code of Civil Procedure provided the case fell under section 151 of the Code, viz., where in the ends of justice or prevention of abuse of the process of the Court such an order becomes necessary. This observation in the reported case is followed by the remark that the Court can intervene only if it is satisfied that the ends of justice urgently require its intervention or that without such intervention there would be an abuse of the process of the Court Needless to say that in the reported case the High Court reversed the order of the Subordinate Court superseding the reference to arbitration. Reliance has also been placed on Ram Gopal and Ram Sarup v. Keshardeo Kanoria and Co., (sic) in which according to S.R. Das Gupta, J. different considerations may arise in an application to set aside an award on the ground that the arbitrators are biased, but in an application under section 5 of the Arbitration Act it is not necessary to show that the arbitrators had in fact been biased and it would be enough to show that there is a reasonable ground for an apprehension that the arbitrators would be biased.