GIAN KAUR Vs. S ATMA SINGH

JUDGEMENT

(1.) THIS appeal has a chequered history and arises in the following circumstances:

(2.) ONE Raibahadur Ganda Singh owned property in more than one place. He was survived by three sons, namely, Mal Singh, Atma Singh and Balwant Singh; all of whom agreed to appoint two persons as arbitrators to partition among them entire property left by their father. A written agreement accordingly, came to be executed on 10th of Katik 999 Samvat and two persons, namely S. Gurmukh Singh, S. Mool Singh Khosla were appointed as arbitrators. The arbitrators gave their award on 20th Katik 2000 Samvat. Mal Singh moved an application under section 14 of the Arbitration Act (hereinafter to be referred to as the act) in the High Court on 18th Phagan 2007 Samvat with a composite prayer that the arbitrators be directed to file the award in the court and thereafter the same be made a rule of the court. This application was transferred by the High Court to the District Judge Srinagar on March 26, 1951. The District Judge, on receipt of the file, issued notices to the respondents in the said application, namely; Atma Singh and Balwant Singh. Pursuant to these notices, the respondents appeared in the court, and on 8th Har 2008 Samvat the court also issued directions to the arbitrators to file the award in the court. The arbitrators filed the award in the court on 3rd of Sawan 2008 Samvat in presence of the applicant and counsel for the non -applicants who were given notice of the filing of the award the same day by the court. The counsel for the parties sought time to file their objections, and the case was fixed for 29th of Sawan 2008 Samvat. Before this date, it appears, respondent Balwant Singh filed his objections wherein he stated that he would have no objection in case the award was made a rule of the court. Counsel for respondent Atma Singh, however, sought another opportunity, to file objections, which were ultimately filed by him on 4th of Bhadoon 2008 Samvat. In his objections, he not only pleaded that the application under section 14 was barred by time, but also took various objections to the validity of the award. The controversy, between the applicant and the respondent Atma Singh, gave rise to a number of issues. Both of them joined the issues and led evidence in support of their cases. Mal Singh applicant died in the meantime. His widow Mst. Gian Kour, the appellant herein was brought on record as his sole heir. The District Judge vide his order dated June 4,1969, refused to make the award a rule of the court and dismissed the application under section 14 inter alia holding: (i) that the application was not barred by time as the arbitrators had failed to serve upon the applicant notice in writing that they had made the award ; (ii) that it was not possible to say whether or not the award was made within time ; (iii) that the arbitrators had committed legal misconduct, inasmuch as, they had made the award after the long delay of 8 years which had in turn resulted in mis -carriage of justice ; and (iv) that the arbitrators did not go beyond the terms of reference though they failed to give the award in respect of all the matters referred to them. It is this order which has been challenged in the present appeal. Atma Singh respondent No. 1 herein alone has contested the appeal. The other respondent, namely Balwant Singh has chosen to remain absent.

(3.) THIS appeal was filed on July 2, 1969. Initially, it was heard by a Bench consisting of Chief Justice S. M. F. Ali (as His lordship then was) and Late Bakshi Ishwar Singh J. The court being of the view, that in the absence of any evidence, as to when the arbitrators had entered upon the reference, it would not be possible to hold, whether or not the award was made beyond limitation, remitted the case back to the District Judge, with the direction that he shall return his finding after recording fresh evidence on the point. As none of the parties chose to lead any evidence, the District Judge submitted his report on September 21, 1974 that it was not possible to say as to when the arbitrators had entered upon the reference. Objections to his report were invited from the parties, but they preferred not to file any.