DURGA BAKSH SINGH Vs. FATEH BAHADUR SINGH

JUDGEMENT

(1.) In this case I have no doubt in my own mind as to what is the proper course for this Court to take. It is an application for revision of an order of the Court below, dated the 22nd December 1914, passing a decree in the terms of a certain award under paragraph 16 of the 2nd Schedule to the Code of Civil Procedure. To an award of this kind the law has given, for reasons which may be good or bad but which do not concern us, a right to either party to object. The award was filed in this particular case after some further time had been given on the 11th of December 1614. Notice was then given to the Vakil for the applicant that objections could be filed within ten days (the usual time) and that hearing of the objections would take place on the following day after the expiration of the ten days, that is, on the 22nd of December. That in my opinion gave the party a right) if he saw fit, to object to the award on any of the grounds under paragraph 15 of the 2nd \Schedule. He did in fact file objections to the award, which although not artistic in form included in substance at any rate an attack on the arbitrator on the ground of misconduct. This was a ground under paragraph 15. It, therefore, followed that the Court could not pass a decree without hearing the objector. On the day fixed for the hearing the applicant appeared but was not ready with his evidence. About that" there can be no possible doubt whatever, because he filed a long application asking the Court to grant him an adjournment for the purpose of enabling him to produce his evidence. Whether he had had ample time to get his evidence but had failed, whether there was some evidence there, such as the arbitrator himself who might have been put into the witness-box and examined as a preliminary to his attack, or whether it was a dishonest application merely to gain time I have no means of knowing. It is suggested by the respondents Advocate that it was a dishonest application. It may have been so; but I cannot for myself find facts without materials upon which to base my decision. I, therefore, have to look at the judgment of the Court below. So far as the application for adjournment is concerned there is an order to be found in the order sheet showing that the learned Judge rejected it for reasons given in the judgment. I have looked at the judgment and it is right to say that the language of the judgment rather indicates that the learned Judge had in his mind some suspicion with regard to the application and with regard to the solidity of the grounds upon which it was based. He, however, unfortunately fails to deal with the adjournment at all. He gives no reason. It, therefore, stands plain on the face of the record that this application for adjournment was dismissed without giving any reasons. I am not prepared to say that even that was an irregularity if there was anything to show to this Court that he had dealt judicially with the application for adjournment, that he thought that it "was not a bona fide application, that he thought that the time of 10 days given for filing objections was ample for the applicant to prepare his case and that he had been guilty of neglect in not coming before the Court ready with his case. That would have been a decision with which, even if I thought it unsatisfactory, I could not have interfered. This order is not subject to an appeal and if the matter was dealt with judicially, however unsatisfactory the reasons may appear to this Court, this Court cannot overrule it. But there is nothing to show what was the real ground in the learned Judge s mind. I cannot sitting here assume without any evidence or a finding to guide me that the application was necessarily without bona fides. It, therefore, stands thus: On the record as it stands the application for adjournment was refused apparently for no reason. That in itself as I have stated above might not be sufficient; but in the substantial judgment by means of which the learned Judge passed a decree under the terms of the award, his ground for deciding against the applicant upon the merits is that he has produced no evidence whatever. Whether it was his fault or not, the fact remains that he produced no evidence and this was due to the dismissal of his application for adjournment. To my mind that was a material irregularity. It is always a little difficult to say what is a material irregularity which justifies a revision by this Court. It is perhaps dangerous to speculate; but in England mistakes of jurisdiction which are apparent on the face of the record or cases in which a lower Court can be shown to have failed to exercise its jurisdiction there is a speedy remedy. Where proceedings are bad on their face they can be set right by certiorari, and where a Court has failed to hear and determine a proceeding or application it can be ordered to hear and determine by means of a writ of mandamus. Whether the revision section was intended as a substitute for those two rather technical proceedings I am unable to say. But to my mind the grounds upon which writs of certiorari or mandamus may be granted in England form no unsatisfactory test as to whether or not there is material irregularity within the meaning of this Code. Being of opinion that there has been, as far as is shown on the face of the proceedings or by any other evidence before us, a failure by the lower Appellate Court to hear and determine the application for adjournment or the objection which the Court itself gave the applicant leave to file, I think there was material irregularity within the meaning of the section and I think further that, assuming as I am bound to assume for the purpose, of this judgment that the applicant was acting bona fide in the Court below and bona fide applied to this Court in revision because he wishes that his case should be properly dealt with, it would be a great misfortune if there were no power inherent in this Court to correct such mistake as has been complained of here. If there were no such power, the result would be that in a bona fide case where a party really wished to attack an award and the Court refused to give him a proper opportunity he would be wholly without remedy. There is nothing before us in this case throwing any light upon the real merits. The substantial part of Mr. Dube s argument was really directed to the merits. In that matter he has yet to be heard by a proper Tribunal. If he is right, the order which I suggest will do him no harm. He can yet succeed upon the merits. He will have the additional satisfaction of having succeeded upon the merits after his case has been fully heard. At present he appears to have succeeded without the case being heard at all. It is perhaps desirable to refer to the first point which was argued on behalf of the applicant. I take an equally strong view with regard to that. The point submitted was that he authority of the real litigant was not given to the original submission to arbitration and that the document under which I understand it was held that the authority was conferred does not bear such interpretation. I do not care in the least whether the document gave such authority or not. It seems to me wholly immaterial. It may be that there was no original authority to consent to a submission to arbitration and that if an objection had been taken at the proper time that might also have been raised in revision. I express no opinion about it. It is sufficient for me to say that after an award had taken place the parties have, however, dissatisfied they may be with the same, no right to object on the ground that the submission was bad. After they have taken part in the arbitration proceedings, it is certainly too late for them to come to this Court in revision to question the original proceeding.

(2.) Taking the view which I do upon the second point argued I think that the decree of the Court below should be reversed and the case be sent back to that Court to be dealt with on the merits and I order accordingly. This order does not include the application for adjournment, as the applicant has already had abundant time to prepare his case and when the case gets back the objections made by the applicant must be heard and the case ultimately disposed of by the Court below after taking such evidence as the parties may adduce. The case will, therefore, come before the Subordinate Judge of Cawnpore on the merits as res integra, that is to say, the objections must be dealt with by him and heard according to law as though the hearing was taking place before him for the first time the parties being at liberty to produce material evidence. Piggott, J.

(3.) It seems to me that this application for revision was probably admitted because of the plea assailing the validity of the reference to arbitration. I am satisfied that there was no force in that plea and that the application for reference to arbitration was duly signed on behalf of Musammat Sheorani Kunwar by a person who had her authority to do so. On the question of the manner in which the objections taken to the award were disposed of by the Court below I am not prepared to agree unreservedly with the reasons given by my learned colleague for his decision. Had I been sitting alone I should have been prepared to hold that the Court below was within its jurisdiction in fixing the 26th of December for final disposal of any objections that might be filed, also that in rejecting the application for adjournment, without giving his reasons and apparently on inadequate grounds, the learned Subordinate Judge had not been guilty of such irregularity as to justify interference of this Court in the exercise of its revisional jurisdiction. I think, however, that the proceedings in the Court below were very unsatisfactory and by no means regret the fact that my learned colleague has seen his way to take a wider view of the authority of this Court as applicable to this particular case. The matter has already occupied a disproportionate amount of the time of this Court and I certainly do not propose formally to dissent from the order passed by my learned colleague. For these reasons I concur in setting aside the lower Court s order dismissing the applicant s objections and the decree which followed thereon.