LAWS(J&K)-2002-5-14

QAZI GHULAM NABI Vs. QAZI ABDUL HAMID

Decided On May 14, 2002
QAZI GHULAM NABI Appellant
V/S
QAZI ABDUL HAMID Respondents

JUDGEMENT

(1.) During pendency of Civil Original Suit for partition No. 104 of 91 titled Qazi Abdul Hamid v. Qazi Ghulam Nabi, on the file of District Judge, Budgam. Plaintiff Qazi Abdul Hamid moved an application for appointment of an Arbitrator and for settlement of the dispute. The defendants including the revision petitioner through Counsel did not object to the request for appointment of the Arbitrator. After recording agreed submissions of the counsel for the parties, the application was allowed and on agreement of the counsel for the parties, one Mr. Mohd Qasim Shah, President Bar Association, Budgam was appointed as sole Arbitrator to settle the dispute. The Arbitrator was under direction to afford parties effective opportunities to lead/produce evidence and after hearing parties to submit the award within two months. The Arbitrator under took the proceedings in which the parties participated. Arbitrator recorded the evidence. He heard the parties and on conclusion of proceedings filed Award dated 7-3-2000 in the court of reference, on this very date.

(2.) Objections were invited to the Award. In the meanwhile, the matter was withdrawn from the court of District Judge and transferred to the court of Addl. District and Sessions Judge, Srinagar. Defendant No. 1, the revision petitioner objected to the Award and the other parties did not take any objections to the Award before the Court below. Besides the objections, alleging misconduct of proceedings and the arbitrator, objection has been taken to the very power and jurisdiction of the Court of District Judge, Budgam to order Arbitration proceedings and making reference to and appointing Arbitrator. The Court below has taken up first the basic objection of alleged want of jurisdiction and lack of powers of court of reference to initiate arbitration proceedings, making reference and appoint Arbitrator. He has left out the other objections touching the conduct of Arbitrator etc. to be determined subsequently. On the raised question, the court below came to the conclusion that the District Judge, Budgam, the court of reference has jurisdiction and powers to refer matter to and appoint Arbitrator. This order dated 18-11-2000 of Additional District Judge, Srinagar is under challenge in this revision petition. Apart from the objections touching the misconduct of the Arbitrator and the proceedings, yet to be decided by the court below, the learned counsel for the revision petitioner submits that the Arbitrator has been appointed in violation of law and the reference made is incompetent, as the matter has not been dealt with within the enabling provisions of Arbitration Act, 1997, (hereinafter for short 'Act').

(3.) The counsel contends that the parties did not agree to the reference of the matter to Arbitration and appointment of the Arbitrator. There is no power vested under the Act with the court to entertain any application for reference of the matter to Arbitration. There has been no agreement between the parties for such reference. Petitioner has not authorised his counsel to make a statement agreeing to reference of matter to Arbitration. In absence of agreement, law gives no power to court to entertain application for reference to Arbitrator. The reference of the matter to Arbitration and the consequent award, impugned in the revision, is non-est and fall beyond parameters of jurisdiction of the Court of reference.