JAGARNATH KEYAL Vs. NAGAR MULL

JUDGEMENT

(1.) This civil revision application, No. 834 of 1961, arises out of an order of the learned Additional District Judge, Muzaffarpur reversing that of the Munsif, First Court, Hajipur, passed in Title Suit No. 34 of 1959. A second appeal, No. 739 of 1961, has also been filed by the petitioners of the civil revision application, by way of precaution, from the same judgment and order.

(2.) The short facts are these: The plaintiffs opposite parties filed a suit against the defendants petitioners for a perpetual injunction restraining them from proceeding with any construction around the house of the plaintiffs, and their case was that the construction of the house of the defendants would obstruct the passage of light and air to the house of the plaintiffs and thus make the same unfit for habitation. The plaintiffs also filed an application for a temporary injunction against the defendants and another petition for appointment of a pleader-commissioner for holding local inspection. An order of ad interim injunction was passed in the case and a pleader-commissioner was also appointed, who submitted his report on the 46th of March, 1959. On the 17th March, that is, on the next day, an application was made on behalf of the plaintiffs before the trial Court stating that arbitrators had effected a compromise between the parties, and, as such, the plaintiffs did not want to proceed with the case. It was prayed that the suit be, accordingly, dismissed without adjudication and the order of ad interim injunction be vacated. No order was passed on this application as regards the dismissal of the suit, but the order of ad interim injunction was vacated. Subsequently, on the 13th of April, 1959, the plaintiffs filed another application for withdrawal of their earlier application filed on the 17th of March, 1959, alleging that the earlier application was a forged and fabricated one. The defendants opposed this application, and their contention was that the petition, dated the 17th of March, 1959, was a genuine one and had been filed at the instance of the plaintiffs because of the compromise arrived at between the parties through the intervention of the panches. Both the Courts below held that the petition filed on the 17th of March 1939 was a genuine document, and no fraud was committed in respect of the filing of the same. The trial court, however, rejected the petition filed on behalf of the plaintiffs on the 13th of April, 1959 because it held that the application filed on the 17th of March, 1959 was not only a withdrawal application but it was, for all purposes, a compromise between the parties, and, therefore, the plaintiffs Could not be permitted to resile from the same. The appellate Court, however, held that the entire case of the defence rested on the oral decision of the panches who never gave any written award, and, as an oral award was not permissible under the Indian Arbitration Act, 1940, it was invalid and could not be taken notice of. It, therefore, took the view that no Court could be compelled to record the decision of the arbitrators which was unlawful, under Order XXIII, Rule 3, of the Code of Civil Procedure. It therefore, allowed the appeal, set aside the order of the trial Court and allowed the plaintiffs to withdraw the application filed by them on the 17th of March, 1959 for dismissing the suit without adjudication. Being thus aggrieved, the plaintiffs have filed the above civil revision application as well as the second appeal by way of precaution, as stated above.

(3.) Counsel for the petitioners has pressed an argument that, though an oral award by arbitrators appointed out of Court, in a pending suit without the leave of the Court, may not be valid in law, the decision of the arbitrators having been accepted by the parties amounted to compromise in the suit by agreement between the parties and, as such, the application filed on behalf of the plaintiffs on the 17th of March, 1959 should have been treated as an application for recording the compromise, and the Court below should have recorded the same, instead of allowing the plaintiffs to withdraw the same. In support of his contention, he has placed reliance on a Bench decision of this Court, in Mohammad Abdur Razaque v. Abdul Majid, AIR 1957 Pat 656 which fully supports the principle of law involved in the argument. It has been held there that an award made on reference by agreement between the parties, but without the intervention of the Court, in a pending suit cannot be regarded as an adjustment of the suit unless the parties have consented to the same after it was made. The view taken in that case was based on an earlier decision of this Court, in Raghunandan v. Sukhlal, ILR 30 Pat 985: AIR 1952 Pat 258 which rested on the proviso to Section 47 of the Indian Arbitration Act. The proviso to Section 47 states that an arbitration award otherwise obtained may, with the consent of all the parties interested, be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending. In the present case, though the evidence of the arbitrators, namely D. W's. 4, 8 and 9, is that both the parties accepted their decision, yet, at the time when the question came up before the Court to be considered, the plaintiffs clearly challenged the acceptance of the decision of the arbitrators. Apart from that, the evidence of these witnesses does not show the plaintiff No. 2 ever agreed to make a reference of the dispute to any of the arbitrators. The evidence of these witnesses is to the effect that they were appointed as arbitrators by Nagar Mull (Plaintiff No. 1) and Gopinath and Bishwanath, two of the defendants. Thus, it is j clear that all the parties to the suit did not refer, even outside the Court, their dispute to the arbitrators for decision. From the nature of the suit, it is clear that the interests of the parties who had not joined in referring the dispute to arbitration are inseparable from the interests of the parties who are said to have agreed to have the matter decided through arbitration. In that view of the matter, the award could not be acted upon as a compromise in the suit between all the parties concerned. Even with respect to the acceptance of the decision by plaintiff No. 2, the evidence is not very clear. D. W. 9 Nath Mull, one of the arbitrators, has said in his evidence that, when the arbitrators got the suit compromised, Nagar Mull called for Sachita Babu, Pleader, for making a draft of the compromise petition and the arbitrators told Sachchita Babu the terms of the compromise, who drafted a compromise petition. That petition was read out to the parties and Sachchita Babu asked them to have the petition faired out and get it filed in Court. His further evidence is that Nagar Mull, plaintiff No. 1, then signed the compromise petition and took the petition to his Bhaujai, plaintiff No. 2, for signature, and he informed the panches that she also signed the petition. Thus, there is no evidence of the arbitrators that plaintiff No. 2 accepted before them their decision. In that view of the matter, the Bench decision of this Court, referred to above, has no application to the facts of this case.