ISMAIL Vs. HANSRAJ AND ANOTHER,

JUDGEMENT

(1.) This is an application in revision by the defendant Ismail and has arisen under the following circumstances.

(2.) The opposite parties Hansraj and another filed a suit in the Court of the Judicial Superintendent, Sojat, against the defendant for recovery of a sum of Rs.1100.00 as damages for breach of a contract relating to the construction of a house for the plaintiffs. The defendant repudiated the plaintiffs' cLalm and put in a counter-claim for Rs.750.00. The case was fixed for the plaintiffs' evidence on 20-1-1950, when the parties referred the dispute between them to the arbitration of three persons, namely, Shri Manakraj Singhvi, Shri Abheynandanmal Kochar and Shri Manaklal Mathur (vide reference bearing the same date i.e., 20-1-1950). It was agreed to between the parties that two arbitrators out of the above will have the right to give the award so long as Shri Manakraj Singhvi was one of them, who was also authorised to conduct the arbitration proceedings. It was further provided that in case all the three arbitrators participated in the award and if there was a difference of opinion between them, the decision of the majority will be binding on the parties. The trial Court referred the dispute to the arbitrators accordingly and fixed 25-2-1950, for filing their award. The case was thereafter transferred to the Court of the Munsiff Sojat under the new scheme of the re-organization of Courts, and the time appears to have been extended up to 26-9-1950, by the order of the Munsiff dated 18-7-1950. Meanwhile as the arbitrators had not given their award, on 16-8-1950, the defendant petitioner moved an application in Court for revoking the reference on certain allegations the effect of which was that he had no confidence in the arbitrators. This application was ordered by the Court to be put up with the file on that very day but no order appears to have been passed. It further appears that the defendant also served a notice on the arbitrators that he did not want the matter to be decided by them. On 23-8-1950, the arbitrators asked for the Court record to be sent to them. On 25-8-1950, the office reported that an application for recalling the reference had been made by the defendant and was pending. The trial Judge on the same date passed an order that Shri Manakraj be informed that he should take the file from the office whereupon the latter acted accordingly. On 26-8-1950, the plaintiff Hansraj also filed an application in the Court of the Munsiff wherein he stated that he had come to know that the defendant had filed an application for revocation of the reference but that no orders had been passed on that application. Hansraj further stated that the 'Surpunch', that is, Shri Manakraj was to come from Sumerpur on 28-8-1950, and that it was very necessary to decide the defendant's application urgently. The Munsiff asked for a report on this application but no order cancelling the reference was made. The arbitrators Messrs. Manakraj Singhvi and Abheynandanmal met on 28-8-1950, and gave an award by which they decreed the plaintiffs' claim for a sum of Rs.777,8.00 with costs and interest from the date of the award to the date of realisation at 6 per cent per annum, and they also dismissed the defendant's counter-claim with costs. The arbitrators filed the award in Court on 26-9-1950, in the presence of counsel for the parties and the defendant himself. On that very day, the Court passed an order that if the parties had any objections to be filed against the award, they be put up, and 24-10-1950, was the next date fixed for the case to come up before the Court. On 24-10-1950, the plaintiffs said that they had no objections to put in but a request was made on behalf of the defendant for further time within which to raise his objections. The plaintiffs objected but their objection was overruled. On 8-12-1950, the defendant put in his objections, and eventually the objections of the defendant were dismissed as barred by time, and a decree was passed in accordance with the award. The defendant went up in appeal from the aforesaid order to the Civil Judge, Sojat, who has upheld the order of the trial Court on the point of limitation although the learned Judge has given his findings on many other points raised on behalf of the defendant in his favour. It is from that order that this revision has been filed.

(3.) It has been strenuously contended before me on behalf of the petitioner that the Courts below had fallen into serious error in throwing out the objections filed on his behalf as barred by Art. 158 of the Limitation Act. It was further contended before me that the Courts below should have taken notice of the defects of the award 'suomotu' and declined to pass a decree in terms of the award. The most important question for determination in this revision is whether the objections filed by the defendant fall within the four corners of Art. 158 of the Limitation Act by which a period of only 30 days has been prescribed for such purpose; the period to commence from the date of service of the notice of filing of the award. It is not contested before me that the defendant had notice of the filing of the award, and it was in fact conceded that the failure to give a formal notice by the Court was merely a formal defect. It is clear, therefore, that if the date of such notice is taken to be 26-9-1930, the objections filed by the defendant on 8-12-1950, were clearly barred by the 30 days' limitation provided under Art. 158. It was contended, however, that Art. 158 was not applicable and that the defendant's objections really fell within the scope of Section 33, Arbitration Act, and that the period for such an application was three years under the residuary Art. 181, Limitation Act. The contention on behalf of the defendant was that the period of 30 days was applicable to an application under Sec. 30, Arbitration Act, only which deals with the setting aside of an award whereas the objections filed by the defendant pertained to the validity of the award and fell under Sec. 33 for which Art. 158 did not provide any period of limitation. This raised the question of the scope and effect of Sec. 30, and Sec. 33, Arbitration Act. It may be pointed out at once that there is a certain amount of conflict of opinion as regards the interpretation of clause (c) of Sec. 30. The view of the Calcutta High Court is that the expression "or otherwise invalid" occurring in clause (c) of Sec. 30 must be interpreted 'ejusdem generis' and does not cover the case of a challenge to an award based on the ground of want of jurisdiction, or any other ground which is not analogous to those mentioned in the preceding clauses. Reference may be made in support of this view to - 'Durga Charan Vs. Ganga Dhar', AIR 1931 Calcutta 109 ; - 'Golnur Bibi Vs. Abdus Samad', AIR 1931 Calcutta 211 and - 'Shah and CO.v. Ishar Singh Kirpal Singh and Co.', AIR 1954 Calcutta 164. The view taken in these cases is that the words "or otherwise invalid" refer to invalidity of the kind referred to in the preceding clauses ana that to hold that these words are sufficient to let in any ground of invalidity would be erroneous. Reference in this connection was also made to - 'Chhabba Lal Vs. Kallu Lal', AIR 1946 PC 72 with which I propose to deal a little later. On the other hand, a Full Bench of the Allahabad High Court in - 'Lutawan Kubar Vs. Lachiya', AIR 1914 Allahabad 446 (FB) took the view that the expression "or otherwise invalid" covered all objections to an award on the ground of invalidity from any cause whatsoever. The same view is shared by the High Courts of Bombay, Madras, Lahore and Rangoon, the Chief Court of Oudh and the Judicial Commissioner's Court of Sind. Reference may be made in this connection to 'A.R. Savkur Vs. Amritlal Kalidas', AIR 1954 Bombay 293 ; - 'Lakshminarayana Tantri Vs. Ramchandra Tantri', AIR 1919 Madras 1029 ; - 'Madho Ram Vs. Sita Ram', AIR 1939 Lahore 69 ; 'U Sein Win Vs. Central Plumbing Co., Ltd.', AIR 1935 Rangoon 94 ; - 'Balak Ram Vs. Ramjiwan Lal', AIR 1936 Oudh 1 and - 'Kishinchand Changomal Vs. Takhitram Tulsidas', AIR 1939 Sind 241 (FB) . I have, therefore, no hesitation - in holding that any objection giving rise to the in validity of an award cannot be excluded from the scope of Sec. 30, Arbitration Act.