HARI CHAND Vs. INDER SEN

JUDGEMENT

(1.) These two connected revisions are directed against a decree passed by the learned Subordinate Judge of Saharanpur, ordering that an award be made a rule of the Court. The circumstances under which the award was made are as follows : The plaintiff, Inder Sen, brought a suit for partition, inter alia, of a certain going concern. Mitter Sen, defendant 1, is the brother of the plaintiff Hari Chanel, defendant 2 and Sumer Chand, defendant 3, belong to the same family. Sumer Chand died during the pendency of the suit in the lower Court. Sumer Ghand's interest survived to Hari Chand and therefore no proceedings for substitution of names were taken. It is not necessary to mention in detail the controversy which arose between the parties to the case. The plaintiff and the three defendants agreed to refer their differences to an arbitration by Babu Mela Ram, a vakil. The Court accordingly made a reference. The proceedings before the arbitrator were long and remained pending from 30 May to 11 October 1932 without any award being made. The Court extended the time for the award being filed several times. On the 11 October 1932 the Court granted an extension for the last time till 10 November 1932. The learned Subordinate Judge made the parties and the arbitrator to understand that they "should expedite the matter and no request for further time be made."

(2.) The defendants were dissatisfied with the arbitration and applied to the Court on 11 October 1932 for permission to revoke the reference. The Court however did not supersede the arbitration and directed the arbitrator to make his award and file it by 10 November 1932. On 9 November 1932 the defendant, Mitter Son, intimated to the arbitrator that he was not willing to have the case decided by the arbitrator. The defendant Hari Chand also joined Mitter Sen in asking the arbitrator to refrain from proceeding with the arbitration. Defendant 3, Sumer Chand, had died in the meantime. Mr. Mela Ram, who appears to have been prompted by the best of motives, told the plaintiff that the defendants were no longer willing to have the case decided by the arbitrator, and requested him (the plaintiff) to agree to a revocation of the reference. The plaintiff agreed. Thereupon Mr. Mela Ram drew up a report,. stating the facts mentioned above and asking the Court to supersede the arbitration. In conclusion he apologized for having taken a long time in bringing the arbitration proceedings to an end and expressed his thanks to the plaintiff who had, at his instance, agreed to revoke the reference. It is quite clear to us that Mr. Mela Ram who had agreed to act as the arbitrator as a friend of the parties found that one of them, if the award happened to be against him, was likely to impugn his impartiality. Accordingly he did not think it desirable to proceed with the arbitration. The plaintiff, who was not otherwise agreeable to the course suggested by the defendants, acceded to the request of Mr. Mela Ram and agreed to the arbitration being superseded. On receipt of the arbitrator's report, the learned Subordinate Judge recorded an order that the case should be put for 10 November 1932 which was the date fixed for the award being filed. It appears that shortly after the aforesaid order was passed, the plaintiff appeared through his counsel and insisted on the case being decided by the arbitrator. The learned Subordinate Judge noted a second order of 9 November 1932 which runs as follows: The plaintiff does not want to resile from the arbitration and his vakil contests the defendants right to resile from it at such a belated and almost complete stage of the arbitration. My attention is drawn to Kunji Lal V/s. Banwari Lal A.I.R. 1918 Pat. 83 also in support of the above contention. The arbitration is therefore not set aside and the matter will be put up again before me on the 10th, the date fixed for the return of the award.

(3.) It should be noticed that the defendant was not present on that data, nor does the learned Subordinate Judge seem to have considered the effect of the plaintiff's consent given before the arbitrator to the revocation of the reference. On 10th November 1932, when the case was taken up, Mr. Mela Ram was not present. He was said to have gone to Delhi. The case was adjourned to 11 November 1932 when Mr. Mala Ram was sent for by the learned Subordinate Judge. On, being persuaded by the learned Subordinate Judge, he agreed to resume the arbitration proceedings. He said he had no objection personally to decide the case. Time was granted to him till 17 November 1932 when he filed his award. Both the defendants objected to the award being given effect to. The learned Subordinate Judge however passed a decree in terms of the award. Civil Revision No. 39 of 1933 has been filed by the defendant, Hari Chand, and Civil Revision No. 218 of 1933 has been filed by defendant Mitter Sen.