MAHENDRA NATH KUNDU Vs. SURESH CHANDRA PRAMANIK

JUDGEMENT

(1.) THE two suits out of which the present Rules have arisen being Suits Nos. 33 and 49 of 1923 of the Court of Small Causes at Krishnagar were referred to a certain arbitrator. THE arbitrator submitted his award on the 17 August 1923. On the 27 of August 1923, the opposite party in these Rules put in a petition challenging the validity and correctness of the award. THE petition was headed as one under para. 15 of Schedule. II of the Code of Civil Procedure. It dealt substantially with two sorts of grievances. One was that there was misconduct on the part of the arbitrator, in as much as he had refused to take relevant evidence which the opposite party was ready to adduce before him and the other was that the arbitrator had been misled into coming to certain findings upon calculations which were the result of fraudulent representations made to him on behalf of the petitioner in these Rules. THE matter came up before the learned Subordinate Judge oh the 31 of August 1923. THE learned Judge noted in his judgment that an objection had been taken to the award on the allegation that the arbitrator had been guilty of misconduct in not taking into evidence all that the opposite party was ready to adduce; and he himself went into the account-books and, being of opinion that a certain finding of the arbitrator" with regard to the period up to which the Karbar between the parties continued was wrong on the face of the account-books, set aside that finding and made two decrees in the two suite in consonance with his own finding to the effect that the said Karbar went on down to the end of Chaitra 1326, B.S. THE learned Judge seems to have held in his judgment not that the awad is fit to be set aside on any of the grounds mentioned in para. 15 of the Second Schedule to the Civil Procedure Code but that the award should be modified or corrected in accordance with the provisions of para 12 of that schedule. Para. 15 of Schedule II of the Civil P. C. lays down that no award shall be set aside except on one of the following grounds, namely, (a) corruption or misconduct of the arbitrator, (b) either party having been guilty of fraudulent concealment of any matter which he ought to have disclosed or of wilfully misleading or deceiving the arbitrator. It is not necessary for the purposes of the present eases to refer to the other part of this paragraph. THE learned Subordinate Judge has recorded no finding to the effect that there was any corruption or misconduct on the part of the arbitrator nor has he found in his judgment that any party has been guilty of fraudulent concealment of any matter which he ought to have disclosed or of wilfully misleading or deceiving the arbitrator. It is dear then that the learned Judge should not have acted under the powers conferred on him by para. 15 of Schedule 11 of the Civil P. C.. Nor did the learned Judge, in my opinion, purport to act under the provisions of that paragraph. He preferred to correct or modify the award in accordance with para 12 of Schedule 11. THE provisions therein contained empower the Court to modify or correct an award (I do not quote such part of this paragraph as is not relevant for the present purposes) (b) where the award is imparfect in form or contains any obvious error which can be amended without affecting such decision; or (c) where the award contains a clerical mistake or an error arising from an accidental slip or omission" THE mistake into which the arbitrator fell, according to the opinion of the learned Subordinate Judge cannot be said to be a clerical mistake or an error arising from an accidental slip or omission and, therefore, the provisions of sub-para, (c) of para, 12 of Schedule II Civil P. C. need not further be considered. Nor was the error one which made the award either imperfect in form or which could be amended without affecting the decision of the arbitrator. It may be that the learned Subordinate Judge was perfectly justified upon the evidence before him to come to the conclusion as he did to the effect that the arbitrator had taken a wrong view of the evidence and that such a wrong view was palpable or was apparent on the face of the account books. But even then the Court had no power to rectify or correct the award unless the award was imperfect in form or the obvious error was of such a character that it could be amended without affecting the decision of the arbitrator. It is well-settled that a Court acts without jurisdiction if it modifies an award because it takes a view different from that held by the arbitrator. In this connection, reference may be made to the case of Madepalli Venkataswami V/s. Madepalli Suramma 45 Ind. Cas. 644 : 41 M. 1022 : 84 M.L.J. 823 : 24 M.L.T. 60 : 8 L.W. 202 : (1918) M.W.N. 482 where, after discussing the authorities bearing upon the question, the learned Judges of the Madras High Court have laid down that even in a case where the award is patently illegal in consequence of the arbitrator having taken a wrong view on a pure question of law, the Court has no power to rectify the same under the provisions of para, 12 of the Second Schedule to the Civil P. C.. THE learned Subordinate Judge, therefore, in my opinion, acted entirely without jurisdiction in modifying or correcting the award of the arbitrator and the decision passed by him cannot be upheld in any view of the matter.

(2.) THE question now arises whether I should send the cases back to the learned Subordinate Judge to deal with the objections which had been taken before him by the Opposite Party in these Rules and which do not appear to have been considered or dealt with by him in the order which he has passed. THE learned Vakil appearing on behalf of the petitioner has drawn my attention to the order-sheet of the learned Subordinate Judge and has asked me to hold that there was no attempt really made by the Opposite Party to prove the allegations which he made in his petition under paragraph 15 of Schedule II of the Code. I have duly considered the matter and it seems to me, regard being had to the fact that the Court itself took a wrong view of the law, that the Opposite Party in these Rules might probably have been misled and I, therefore, do not propose to refuse him an opportunity of substantiating those allegations. It will be for him to prove those facts and, if he succeeds in proving them to the satisfaction of the Court below, the learned Subordinate Judge will be able on a proper case being made out to deal with the matter on the footing of the provisions contained in para. 15 of Schedule II. If they are not made out then the learned Judge will have to proceed in accordance with the provisions of para. 16(2) of Schedule II of the Civil P. C. and pronounce a judgment and pass decrees in accordance with those provisions. THE Rules are made absolute as indicated above. Having regard to the peculiar circumstances of the cases, I do not make any order as to costs in these Rules.