(ARDHIKAI) LAKSHMAMMA Vs. GORLE APPADU

JUDGEMENT

(1.) This was a suit to arbitration and the finding of fact is that out of five arbitrators one was absent during the examination of one of the witnesses. The learned District Munsif is of opinion that the terms of reference provided for such a contingency inasmuch as the parties agreed that the opinion of the majority should be accepted. But it is one thing to say that and quite another thing to say that the parties agreed that the arbitration might be conducted by a majority, or by less than the full number of arbitrators. This view of the lower Court has not been supported here and it must be found on the authority of Thammiraju v. Bapiraju [1889] 12 Mad. 113, that it was incumbent on each of the arbitrators to bo present at each of the meetings and that accordingly, if the mtster stood there, the award would be liable to be set aside as illegal. The learned District Munsif has however also found that, if there was any irregularity from this cause, the plaintiff has waived it. He notes that the plaintiff's next friend was present on each occasion and has admitted that he took no notice of the circumstance that one of the arbitrators was on one occasion absent. It was his business to object at the time and not to allow the proceedings to go on and terminate. The principle has been laid down by the Privy Council in Chowdhri Murtaya Hussain v Bibi Beehunnissa [1875] 3 I.A. 209 at p. 220. The appellant, their Lordships say, having a clear knowledge of the circumstance on which he might have founded an objection to the arbitrators proceeding to make their award, did submit to the arbitration going on and allowed the arbitrators to deal with the case as it stood before them, taking his chance of the decision being more or less favourable to himself, and it is too late for him, after the award has been made, and on the application to file the award, to insist on this objection to the filing of the award.

(2.) This seems to me to be precisely that the plaintiff's next friend did, and I cannot say that in accepting his conduct as an answer to the objection the learned District Munsif has gone beyond the discretion vested in him. There is clearly no question here of exceeding his jurisdiction.

(3.) Exception is then taken to the manner in which the arbitrators have dealt with the B and D schedule properties. As regards the B schedule property, it is said that they have not decided as between the plaintiff and the defendants to whom it belongs and as regards the D schedule, that their decision was in conflict with admission actually made by the defendants. It is to be observed however that these objections were not taken in the memorandum filed by the plaintiff upon the award and I see no reason accordingly why I should allow them to be taken now.