(1.) This is a defendant's appeal against a decree of the lower appellate Court reversing a decree of the Court of first instance dismissing the plaintiffs claim. The plaintiffs suit was for a declaration that he was the owner of certain property set out in the plaint, and during the course of the proceedings in the Court of the learned Munsif the parties agreed to refer the questions in dispute to arbitration. Consequently one Shyam Lal was nominated as arbitrator, and in due course he made his award. The learned Munsif however set aside this award on the ground that at one stage in the proceedings the arbitrator appointed had refused to act and that thereafter he had no jurisdiction to make an award relating to the matters in dispute. Having set aside the award, the learned Munsif considered the plaintiffs claim upon its merits and dismissed the claim. The plaintiffs appealed to the lower appellate Court and the learned Civil Judge who heard the appeal came to the conclusion that the learned Munsif was wrong in setting aside the award and eventually reversed the decree of the Court below and decreed the plaintiffs suit in terms of the award. It is against that decision that the present appeal is preferred.
(2.) As I have stated previously, the parties during the proceedings before the learned Munsif referred the matters in dispute to the arbitration of one Shyam Lal and this appears to have been done on 9 December 1931. The defendants soon changed their minds and on 7 January 1932 they made an application to the Court to recall the reference to arbitration on the ground that the arbitrator had been influenced by the plaintiffs. Upon this application of 7 January 1932 the Court passed an order that the arbitrator should make his award after giving due notice to the parties concerned. On 14 January 1932, another application was made to the Court praying that the reference to arbitration be recalled and this was ordered to be put up on 18 January 1932 on which date the Court ordered it to be filed. It appears that on 7 January 1932 the defendants, who had on that date made their first application to the Court to recall the arbitration, also sent a communication to the arbitrator, Shyam Lal, asking him not to proceed with the arbitration as the Court had been moved to set aside the reference. On receipt of this communication from the defendants, the arbitrator on 18 January 1932 sent back the papers to the Court with the remark that he was sending back the papers to the Court because Kanchhed Mal did not wish him to arbitrate and also because in future he would have no leisure to carry out the work. The order of the Court upon the defendants application to recall the reference was communicated to the arbitrator on the following day, namely, 19 January 1932. That order, as I have stated, directed the arbitrator to make his award after consulting the parties. On receipt of this order the arbitrator wrote to the Court that he had already returned the papers but if the papers were sent back to him he would have no objection to arbitrate. The papers were sent back to the arbitrator and the time for delivering the award extended. In due course the arbitrator on 23 February 1932 made his award which was filed in Court.
(3.) Against this award certain objections were filed and the defendants assailed the award on three grounds : (1) That the arbitrator was related to the plaintiffs and was intimate with them and had colluded with them. (2) That there was no meeting held. (3) That the award was not sustainable. It should be observed that no specific objection was raised on the ground that no award could possibly have been made after the arbitrator had returned the papers and had refused to act. The learned Munsif who heard these objections came to the conclusion that the conduct of the arbitrator was perfectly fair and honest and that he had proceeded, in the fairest manner possible. He however held that as the arbitrator had returned the papers on 18 January 1932 he could not thereafter act as arbitrator and make an award. The return of the papers by the arbitrator in the circumstances was tantamount to a refusal to act and consequently he had no jurisdiction thereafter to consider the matter and make an award. The learned Munsif thereupon set aside the award of Shyam Lal and heard the case upon its merits. He found in favour of the defendants and dismissed the plaintiffs claim.