GANESH PRASAD Vs. DAMODARDAS

JUDGEMENT

(1.) WHEN this appeal first came up for hearing, a preliminary objection was taken to the effect that the order complained of was in substance, if not in form, an order dismissing the suit for default, and that no appeal lay. Notice was accordingly issued to the defendants-respondents to show cause why this Court should not take up the matter in the exercise of its revisional jurisdiction. We have to-day heard both parties, and we consider it unnecessary to discuss or to determine the question whether an appeal does or does not lie. We are satisfied that if an appeal does not lie, the order of the Court below is liable to be set aside in revision as having been passed without jurisdiction. The position was this. The parties had referred the matter dispute to arbitration and had named two arbitrators and an umpire. For some reason or other, the notices issued by the Court to the umpire and to one of the arbitrators were returned unserved. The remaining arbitrator had expressed his willingness to act, but the parties not unnaturally failed to appear before him as they had never agreed to abide by his sole decision. It seems to us that no case had arisen falling within the provisions of paragraph 5 of Schedule II of the Code of Civil Procedure. The Court below might have fixed a further date and might have made another effort to serve the notices in question; or it might have dealt with the matter as falling within the provisions of paragraph 8 of Schedule II, aforesaid. It seems to us that it would not have been unreasonable to hold that the arbitrator and the umpire were unable to complete the award within the time specified by the Court, and that the Court saw no cause under the circumstances to allow further time for making the award, la that case, an order might have been passed superseding the arbitration and the Court might have then proceeded with the suit. As a matter of fact, the learned Subordinate Judge referred to no provisions of the Code of Civil Procedure at all. He never passed any order superseding the arbitration. What he did was that on a previous date, when issuing notice to the arbitrators, he informed the parties that if no award was filed within the period fixed by the Court, they were to be in attendance with their witnesses, prepared to proceed with the case. We think that a hypothetical order of this sort should not have been pawed, and in any case, it does not supply the deficiency we have noted, namely, the absence of a proper order superseding the arbitration before the Court proceeded to dispose of the case. Under the circumstances, it seems to us the order dismissing the plaintiff s suit, whether it be regarded as an order dismissing the suit for default, or as a decision against the plaintiff on the merits, on the ground of his failure to prove his case, was certainly an order passed without jurisdiction. We, accordingly, set aside the order in question." and the decree of the Court below, (sic) direct the learned Subordinate Judge to readmit; the suit on his file and to proceed with it according to law. Costs will abide the event.