DINABANDHU JANA Vs. DURGA PRASAD JANA

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from the judgment of a Division Court of two Judges who were equally divided in opinion in an appeal from original decree.

(2.) On the 5th August 1911, the present suit was instituted by the plaintiff respondent against his three brothers for partition of joint properties and for incidental reliefs. It appears that two days previously the parties had entered into an agreement to refer the matters in controversy to the arbitration of three persona mentioned in the document and to abide by their decision. The defendant in his written statement urged that the suit was not maintainable in view of this agreement of arbitration. The Subordinate Judge held that Section 21 of the Specific Relief Act did not operate as a bar, as the institution of the suit did not constitute by itself a refusal by the plaintiff to perform the contract of arbitration. In support of this view reference was made to the decision of Wilson, J., in Koomud Chunder Dass v. Chunder Kant Mookerjee 5 C. 498 ; 5 C.L.R. 284 ; 2 Ind. Dec. (N.S.) 925. The suit was then tried on the merits and a decree made in favour of the plaintiff. On appeal to this Court, it was urged that the suit was barred under Section 21 of the Specific Relief Act. Fletcher, J., overruled this contention on the authority of the decisions in Koomud Chunder Dass v. Chunder Kant Mookerjee 5 C. 498 ; 5 C.L.R. 284 ; 2 Ind. Dec. (N.S.) 925 and W. Crisp v. Adlard 23 C. 956 ; 12 Ind. Dec. (N.S.) 635. Shamsul Huda, J. held, on the other hand, that the decision in Ram Chandra Pal v. Krishna Lal Pal 17 Ind. Cas. 600 ; 17 C.W.N. 351 supported the contention of the defendants. The result was that Fletcher, J., dismissed the appeal and Shamsul Huda, J., allowed the appeal, so that under Section 98(2) of the Civil Procedure Code, the decree of the Subordinate Judge stood confirmed. The present appeal is directed against that decree.

(3.) The appeal was argued at first on the assumption that the rights of the parties were governed by Section 21 of the Specific Relief Act It was urged with considerable force that there was really no conflict in principle between the decisions in Koomud Chunder Dass v. Chunder Kant Mookerjee 5 C. 498 ; 5 C.L.R. 284 ; 2 Ind. Dec. (N.S.) 925 and Ram Chandra Pal v. Krishna Lal Pal 17 Ind. Cas. 600 ; 17 C.W.N. 351 and that the conclusion in each case was based upon its special facts. In the former case, the defendant, who set up the usual arbitration clause in a mercantile contract as a bar to the suit, had ample opportunity to claim a reference to arbitration before the plaintiff came into Court, but had never expressed a wish to go to arbitration; in these circumstances, the plaintiff could not justly be deemed to have refused to perform the agreement. In the latter case, there was an express refusal antecedent to the suit. On the other hand, the language used by Patheram, C.J., in W. Crisp Adlard (2) may, perhaps, be open to comment, because the conduct of the plaintiff antecedent to the suit, followed by its institution, may indicate that he has refused to perform the agreement of arbitration, so as to bring into operation the provision of Section 21 of the Specific Relief Act. When we look to the facts of that case, it seams probable that all that was intended to be decided by this Court was that refusal to go to arbitration pendente lite did not bar a suit for which there was a good cause of action at the data of institution. It is needless, however, to discuss this aspect of the matter in detail, an, at the conclusion of the arguments, it transpired that Section 21 of the Specific Relief Act had no application to the case.