GUDIPOODI SUBBAYYA Vs. KOTAPALLI SESHAYYA

JUDGEMENT

(1.) This is a petition to revise the judgment of the District Munsif of Ongole, dated 17 April 1923, wherein he framed a decree in terms of a certain award. The petitioners (defendants 3 and 4) are the reversioners of one Kottayya. The suit was brought against them by the plaintiff on a mortgage by Kotayya's widow and was filed after her death. The mortgagees were the pre-decessors-in-title of defendants 1 and 2, and the plaintiff is an assignee from them. The question in the suit was whether the mortgage was binding on the reversioner and the parties are alleged to have agreed to refer the matter to arbitration under Schedule 2, para 1, Civil P.C. Defendants 1 and 4, were minors when the suit commenced. We are not concerned with the first of these. The latter was represented by his mother in the suit and the first question raised before us is that as his guardian ad litem did not sign the petition to refer the suit to arbitration dated 6 October 1922, there has not, at least as far as defendant 4 is concerned, been a valid reference under Schedule 2, Civil P.C. The petition in question stated that the parties have agreed to abide by the award of one Potheheeni Raghavulu passed by him after making enquiry or without making enquiry and without having anything to do with the appeal. It is suggested that the mother's thumb-impression was taken to the original of the petition, but there is no evidence to support this. The first remark to make is that this ground has not been taken in the lower Court, but that does not preclude us from considering it here, because it must be held to go to the question of jurisdiction. It is quite clear that the jurisdiction of an arbitrator under the 1 clause is founded on the consent of parties that he shall decide the matter referred to. Now the question is did all the parties consent, or rather did the guardian of defendant 4, consent to this reference on his behalf? It has been held in several cases that the provision of the paragraph that the application shall be in writing is directory only and not mandatory: see Shoma Sundaram Iyer V/s. Abdul Latiff [1900] 27 Cal 61. It appears from the records that the guardian sent a petition to the arbitrator dated 27th November 1922, requesting him not to proceed with the arbitration, because there was a rumour that he was going to give a decision against the defendants and in favour of the plaintiff. This petition begins: Both the parties in the above suit have appointed you as panchayatdar and for the disposal of the suit we sent the records to you.

(2.) It is said that that cannot be taken as antedating the consent of the guardian to the reference to arbitration and that it shows only that the widow was willing to join in the reference and so requested the arbitrator not to proceed with the award. That position seems to me on the facts, untenable, for in her evidence as P.W. 1, she says she consented to the reference as the arbitrator agreed to favour her and she quite frankly says that she preferred the petition just referred to, because the arbitration should not be proceeded with unless the result was going to be favourable to herself. A Brahmin wrote the petition, because the pleader's clerk refused to write it saying: I (witness) have no business to do it after having consented to the reference.

(3.) It seems to me, therefore, that there is no doubt that the guardian of the minor, defendant 4 did consent to the appointment of the arbitrator in the first instance and to the reference of the matter in dispute to arbitrators. That all the parties need not sign the application is plain from the decision of the Privy Council in Umed Singh V/s. Sobhang Mal A.I.R. 1915 P.C. 79. There it appears that the parties had signed the agreement including the guardian ad litem of the minor appellant and Mr. Somayya for the petitioner urges that the reasoning of their Lordships decision is that this agreement was presented to the Court along with the petition which was not signed by the minor appellant's guardian. Their Lordships, however, do not base their decision on the existence of any such agreement and they point out that para. 1, Schedule 2, does not require that the writing should of necessity be signed, that the guardian was in Court, and assented to the application and that, therefore, no injustice has arisen. It seems to me, therefore, that there is no substance in the 1 point taken for the petitioner, namely that the consent of defendant 4's guardian ad litem was not given to the reference to arbitration.