ZEAUDDIN Vs. ABDUR RAFIQUE

JUDGEMENT

(1.) THE petitioners in this application in revision are the defendants in a suit, the subject-matter of which is a small parcel of land on which their house stands. THE plaintiffs are their neighbours, and according to them there has been a partition at which the land was allotted to them. When the suit came on for hearing, the plaintiffs asserted that the defendants and themselves had agreed to refer the matter in dispute to arbitration, that arbitrators had been appointed and made an award, and that this award had been accepted by each of the defendants, under the award, it appears, the defendants were to relinquish the land while the plaintiffs were merely to relinquish any claim which they had to costs. THE defendants contended that there was no truth whatever in this story, and the learned Munsiff, after going into the matter, accepted this. On appeal, however, the learned Subordinate Judge came to the opposite conclusion, and directed that the agreement or compromise embodied in the award should be recorded under Order 23, Rule 3 of the Code of Civil Procedure. Until section 89 of the Code of Civil Procedure was repealed there was a conflict of opinion as to whether, when the parties to a suit had referred the matters in dispute between them to arbitration without the intervention of the Court and an award had been made, the award could be regarded as an adjustment of the suit and could be recorded as such under Order 23, Rule 3 of the Code. THE Calcutta High Court was of opinion that it could not ('Amar Chand v. Banwari Lall Rakshit', 49 Cal 608) as also was the Lahore High Court ('Hari Prashad v. Mt. Soogni Devi', 67 Ind' Cas 123) while the Bombay High Court was of opinion that it could ('Manilal v. Gokal Das', 45 Bom 245. It was consequence of these conflicting decisions that the proviso to Section 47 of the Arbitration Act was enacted, It seems to me quite clear that the consent of the parties required under that proviso is a consent to the Court taking the arbitration award into consideration, and not, as was suggested by the learned Advocate for the plaintiffs, a consent expressed by the parties out of Court to be bound by the award. If the Legislature had intended what the learned Advocate for the plaintiffs suggests it did, the word 'may' would have followed and not preceded, the words "with the consent of all the parties interested." THE only decision cited as to the construction of the proviso was 'Arumuga Mudaliar v. V. S. V. Balasubramania Mudaliar', ILR (1946) Mad 39. In that case, however, the parties had, in Court, consented to the matters in dispute between them being referred to an arbitrator, and had also agreed to be bound by any award which was passed by him. What was really decided in that case was that an intimation, made to the Court by the parties that they proposed to refer the matters in dispute between them to arbitration and that they agreed to be bound by any award which might be made, amounted to a consent on their part to the award, if and when made, being taken into consideration by the Court, Leach, C.J., observed: "THEre is nothing in the proviso which precludes antecedent consent." THE decision can have no application where, as in the present case, no intimation was given to the Court by any of the parties concerned that there had been, or was to be, a reference to arbitration. THE learned Advocate for the plaintiffs also referred to 'Dular Koeri v. Payag Koeri', ILR (1942) All 357. It is true that that is a decision of 1942 after the Arbitration Act, 1940, came into operation. But the agreement or compromise, which it was sought to enforce, had come into existence in 1939. THE learned Judges decided on the principle of 'stare decisis' to follow an earlier decision of the Court which had taken the same view of the controversial point as had been taken by the Bombay High Court. In my opinion, even assuming that there was a reference to arbitration and an award, nevertheless, either party to the suit may insist on his right to have the suit tried out. THE Court has no jurisdiction to treat an award as an adjustment of the suit and to record it, unless all the parties have consented in Court to the matters in dispute between them being referred to arbitration and to be bound by any award which may be passed. THE application will, accordingly, be allowed with costs. THE order of the lower appellate Court is set aside, and the suit is remanded to the trial Court to be disposed of according to law. THE hearing fee is assessed at two gold mohurs.