PORAN LAL Vs. RUP CHAND

JUDGEMENT

(1.) This is an application for revision by the plaintiffs and arises out of a suit brought by them for partition of family property. The parties agreed, on 8 June 1929, to refer the dispute between them to the arbitration of four parsons, including one Madho Ram as an umpire. Accordingly an application was presented on 24 June 1929 asking for a reference to the aforesaid arbitration. Accordingly the matter was so referred. Madho Ram refused to act. By an order, dated 23rd August 1929, the Court directed the parties to nominate another arbitrator in place of Madho Ram. Before any nomination could be made by the parties, the plaintiffs applied, on 2 September, 1929 praying that the arbitration be superseded. The Court rejected this application and appointed one Babu Bimal Prasad as an arbitrator by an order dated 3 September 1929. The order itself merely appointed B. Bimal Prasad as an arbitrator, but it was construed by the lower Court as amounting to a reference to B. Bimal Prasad as the sole referee. It should be mentioned that the arbitrators other than Madho Ram had neglected to act as arbitrators, though they had not positively refused to act as such. B. Bimal Prasad also refused to act as an arbitrator on 5 September 1929. By an order dated 7 September 1929, the Court appointed Mr. Girraj Bahadur as an arbitrator, directing the parties to pay Rs. 150 as his remuneration. On 28th November 1929 the plaintiffs applied for revocation of the reference, expressing their unwillingness to proceed with the arbitration; but that application was rejected. On 9 December 1929 the plaintiffs again applied for the revocation of reference. This was also rejected. On 16 January 1930, the plaintiffs took objection to the legality of the appointment of Mr. Girraj Bahadur as arbitrator. The application was rejected. Some proceedings took place before the arbitrator after 16 January 1930. The present application for revision was filed in this Court on 7 March 1930. It appears that the award was made by Mr, Girraj Bahadur on 12 March 1930, and filed "in due course in the Court below.

(2.) One of the grounds taken in revision has reference to the power of the Court to appoint Mr. Girraj Bahadur without previous notice having been given by the defendants to the plaintiffs to nominate an arbitrator as required by Rule 5, Schedule 2, Civil P. C. It is not in dispute that no notice was given by the defendants to the plaintiffs to appoint an arbitrator in place of either Madho Ram or B. Bimal Prasad. It is argued that Mr. Girraj Bahadur was appointed in continuation of proceedings following the order of the Court dated 23 August 1929, by which time was given to the parties to nominate an arbitrator. It is said that B. Bimal Prasad refused shortly after his nomination and the appointment of Mr. Girraj Bahadur by the Court must be considered to be part of the proceedings started by the Court's order dated 23 August 1929. I am unable to take this view of the matter, The Court had to fill up the vacancy by the refusal of Madho Ram to act; and when the parties neglected to make a nomination for which an opportunity was given to them by the order dated. 23 August 1929, the Court appointed B. Bimal Prasad. This marked the termination of one stage of the proceedings. It could not at that time be anticipated that B. Bimal Prasad would refuse, as he subsequently did on 5 September 1929. The Court should have adopted the procedure laid down by Rule 5 after B. Bimal Prasad refused to act as an arbitrator. In the absence of notice by one of the parties to the other to appoint an arbitrator, the Court had no power to appoint Mr. Girraj Bahadur in place of B. Bimal Prasad. This view was taken by a Bench of this Court in Jagannath Sahu v. Chhedi Sahu and also in Abdul Gani V/s. Din Dayal [1919] 41 All. 578. I am clearly of opinion that the Court had no power to appoint Mr. Girraj Bahadu to act as arbitrator without the formalities required by Rule 5, Schedule 2, Civil P.C. being observed.

(3.) It is argued that no case has been decided within the meaning of Section 115, Civil P. C. and therefore no revision can lie. The argument implies that the stage when a case is decided has not yet arrived and will arrive in future when a decree is passed on the foot of the award. I think that the order of the Court dated 7th September 1929 appointing Mr. Girraj Bahadur as the arbitrator and making a reference to him, does amount to a case decided within the meaning of Section 115, Civil P. C. To take any other view would be to put a premium on unnecessary proceedings in which a large number of witnesses may be examined by the parties and the award which the arbitrator might eventually make may be declared by the Court to have been made by the arbitrator who had been illegally appointed and had in consequence no jurisdiction. I am therefore of opinion that on a reference being made to an arbitrator whom the Court had no power to appoint, a " case " should be considered to have been decided within the meaning of Section 115 so as to empower this Court to interfere in revision.