SARAT CHANDRA SEN Vs. RAJKUMAR MOOKERJEE

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for recovery of possession of land upon establishment of title. The plaintiff and the defendant are owners of adjoining parcels and the controversy between them constitutes a boundary dispute. On the 19 May 1915, they executed a deed of agreement and referred the matter in dispute to three arbitrators. The arbitrators held an enquiry, and on the 4 November 1917, one of them announced a decision which was signed only by himself and was unfavourable to the plaintiff. On the 8th March 1918, the plaintiff commenced the present litigation to establish his title and to enforce hie claim. The arbitrators were not apprised of the institution of the suit, and on the 30th March 1918 they published their joint award. The defendant, who did not receive notice of the suit till the 4 April, entered appearance on the 11 April and filed his written statement on the 25 April. Amongst other defences, he urged that the award was a bar So the maintenance of the suit. Thereupon the following issues were raised: Has the plaintiff any title to the land in suit? Does the disputed land appertain to holding No. 161? Is the suit barred by law of limitation? Is the plaintiff's suit barred by the laws of estoppel and acquiescence? Is the suit maintainable under the law? Is the award made by the arbitrators with reference to land in sail void and inoperative? To what relief, if any, is the plaintiff entitled?

(2.) The Trial Court held, on the authority of the decision in Ram Chandra Pal V/s. Krishna Lal 17 Ind. Cas. 600 : 17 C.W.N. 351, that the plaintiff was not competent to resile from the agreement to refer to arbitration and that the award was not void and inoperative. The Court also investigated the case on the merits and finally dismissed the claim. Upon appeal, the Subordinate Judge held that as soon as the suit was instituted, the arbitrators became functi officio and the award was consequently in valid. On the merits, he held that the plaintiff had established his title as found by the Commissioner, and in this view he decreed the claim in part. On the present appeal, the defendant has eon-tended that the award was not void and must be deemed operative, till at any rate the plaintiff should establish that the proceedings of the arbitrators had been vitiated by corruption or misconduct. The plaintiff has argued, on the other hand, that paragraph 18 of the Second Schedule to the Civil Procedure Code of 1908 shows that the only remedy of the defendant, if any, was to apply to the Court to stay the suit, and that as he did not take recourse to the procedure prescribed, the suit could be deemed barred by the award.

(3.) The true effect of paragraph 18 has been considered by this Court in three recent cases. In Dinabandhu Jana V/s. Durga Prasad Jana 51 Ind. Cas. 80 : 46 C. 1041 : 29 C.L.J. 399 : 23 C.W.N. 716 it was pointed out that where, for the determination of the controversy between the parties, two competent tribunals are available, the Court and the arbitrators, and the plaintiff chooses the latter but in fast has recourse to the former, it is not open to the defendant to enforce specific performance of the contrast or to plead the contract as a conclusive bar to the suit, but the defendant may apply to the Court to stay the suit, in the exercise of its judicial discretion, so as to enable either of the parties to obtain a decision from the arbitrators. When the Court is apprised that the suit has been instituted in contravention of an arbitration agreement, the Court has thus a discretion to stay the suit. The burden lies upon the plaintiff to show that some sufficient reason exists why the matter should not be left to be decided by the arbitrators, and not on the defendant to show that no such reason exists; it is the prima facie duty of the Court to act upon the agreement between the parties. It may be added that in the case then before the Court, the suit bad been instituted two days after the agreement, to refer the matters in controversy to arbitration.