BABU PRASAD JHA Vs. MAHABIR JHA

JUDGEMENT

(1.) This appeal is on behalf of the plaintiffs and is directed against an order refusing to set aside an award. Mr. Rati Kant Choudhury who appears on behalf of the appellants has put forward two contentions before us. First is that the award is invalid because it was passed upon a reference to which minors were parties but there was no proper compliance with the provisions of Order 32, Rule 7 granting permission to the guardians of the minors to enter into the agreement for reference to arbitration. The second point urged on behalf of the appellants is that the case should be remanded because no opportunity was given to the plaintiffs to examine the arbitrator who gave the award. I shall deal with the two objections seriatim.

(2.) It appears that plaintiffs 3 and 4 who are the sons of plaintiff 1 were minors and they were represented by their father and natural guardian plaintiff 1 in the suit. On the side of the defendants, defendant 2, the son of defendant 1, was a minor and he was represented in the suit by a pleader guardian ad litem. On 3-7.1947 an application was filed praying that the suit be referred to the arbitration of one Babu Janki Raman Prasad Misser. On that date it appears that there was no application filed on behalf of the minor plaintiffs and the defendant for permission to enter into the compromise. On 7-7-1947 the next friend of the minor plaintiffs and the guardian ad litem of the minor defendant filed a petition praying for permission to enter into the agreement to refer the matter to arbitration. On that petition having been filed the Court recorded an order granting permission and thereafter the Court passed an order for referring the case to the arbitration of the arbitrator concerned. Learned counsel for the appellants submits that there has not been sufficient compliance with Order 32, Rule 7 first because in granting permission the Court merely observed "permitted" without recording any reasons for granting such permission. In the second place he submits that this application for leave to enter into the agreement for reference to arbitration should have been made along with the application itself which was filed on 3-7-1947 and that not having been done the order is illegal. In my opinion both these contentions are without any substance. Under Order 82, Rule 7 no particular formula is necessary and the Court is not bound to give reasons for granting permission to the guardian ail litem to enter into the agreement for reference or for compromise. If any authority is needed for this purpose we may refer to a decision of this Court in Ishan Chandra v. Nilratan, 2 pat. 538; (A. I. R. (10) 1923 Pat. 375) which has been followed in a number of, other cases by this Court. Kulwant Sahay J. who delivered the judgment in that case observed as follows;

(3.) In this ease there was an application filed on behalf of the guardian ad litem as well as the guardian of the minors to enter into the agreement to refer the dispute to arbitration. That petition is referred to by the Court in the order to which reference has been made by me above and after that the Court recorded the order permitting the guardians to enter into the agreement on behalf of the minors. Learned counsel for the appellants has relied upon an earlier decision of this Court in Ramgulam Sahu v. Durga Pershad, 6 pat. L. J. 190: (A. I. R. (18) 1921 pat. 14). But that case has been fully discussed in Ishanchandra v. Nilratan, 2 Pat. 538 (A. I. R. (10) 1923 Pat. 375), and distinguished there. In distinguishing the decision in Ramgulam Sahu v. Durga Pershad, 6 P. L. J. 190: (A. I. R. (8) 1921 Pat. 14) Kulwant Sahay J. pointed out that on the evidence in that case the Judges came to an express finding that there was evidence on the record to suggest an inference that the Court never intended to exercise its judgment on the question whether the settlement was for the benefit of the minor and under those circumstances it was held that the compromise decree was not binding on the minors. In this case it is quite clear that the Court was conscious of the interest of the minors and the Court did apply its mind to the application which was presented to him seeking permission to enter into the agreement for reference to arbitration on behalf of the minors. If under these circumstances the Court granted the permission required, the Court evidently applied its mind to the matter and I have no reason to think that in recording the permission the Court did not act as provided by the law under Order 32, Rule 7. I may here refer to the language of the rule itself which requires that a next friend or guardian for the suit shall not without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit. The principle of the rule applies with equal force to an application for reference to arbitration. The rule does not expressly require that the Court must record reasons for granting the permission. All that it does require is that the Court should apply its mind to the matter before granting such leave and in this case we find that the Court did apply its mind to the petition on which the permission was granted to the guardian ad litem of the minor plaintiffs and to the guardian ad litem of the minor defendants.