(PANDIT) BHIM SEN Vs. (PENDIT) TARA CHAND

JUDGEMENT

(1.) This is an application in revision from an order of the lower appellate Court upholding the order of the first Court filing an award which had been made out of Court. A registered agreement referring the disputes between the parties was executed on 31 May 1929 and under it five persons were appointed as arbitrators. A meeting" was convened and notices to all the arbitrators were given, but one of the arbitrators named Sumat Prasad was not present. Both the Courts below have found that the parties agreed that the remaining four arbitrators should proceed with the case and dispose of the matter. The statements of the parties were taken down and evidence was recorded and an award was delivered by the four arbitrators. It was unanimous.

(2.) An application was then made in the Court of the Munsif by the plaintiff for the filing of the award. The defendant objected that the absence of one of the arbitrators was fatal to the award and made it invalid. He further pleaded that the arbitrators had wrongly decided a matter which was outside the scope of the reference. The learned Munsif overruled this objection and ordered the award to be filed. That order has been upheld by the learned Subordinate Judge.

(3.) In revision it is first contended before us that the absence of one of the arbitrators, Sumat Prasad, made the whole proceedings irregular and illegal and the award was not capable of being filed at all. The Courts below have relied on the case of Ramnath Misra V/s. Ram Ranjan Misra A.I.R. 1922 Cal. 181, in which it was held that if a party to an arbitration proceeding fails to take an objection to the absence of one out of several arbitrators he will be deemed to have waived his right to take objection to the whole of the irregularity caused thereby and the award must be filed. The judgment however does not show that the agreement in that case was a registered agreement; nor is there any reference in that judgment to proviso (4), Section 92. Under that proviso the existence of any distinct subsequent oral agreement to modify a contract which is evidenced by a registered document cannot be shown.