MOHD YAKUB KHAN Vs. SIRAJUL HAQ

JUDGEMENT

(1.) This is a defendant's application in revision against an order of the Civil Judge of Aligarh dated 16 January 1947 where. by he allowed an appeal against an order of the Munsif of Koil who had rejected the application of the plaintiff- opposite party for setting aside an award. The suit was referred to arbitration on the statements of the counsel for the parties. This statement was recorded not by means of an application but upon a court rubkar and was signed by the parties in the presence of the Court. The arbitrator so appointed made an award. Both parties raised objections to it. The objection of the defendant-applicant merely related to the order regarding costs in the award. The objections of the plaintiff- opposite party were several but we are concerned only with his objection that the reference to arbitration was invalid, as it was not in writing, as required by the Arbitration Act. The objection of the defendant applicant, with regard to costs, was overruled and we are not concerned with it any further. All the objections raised by the plaintiff-opposite parties were also overruled and a decree in terms of the award was passed by the Munsif. The plaintiff-opposite party appealed to the lower appellate Court. The lower appellate Court held that the agreement of reference was invalid, as there was no application in writing and the statement of the counsel for the parties was not, such an application. In the result he set aside the Munsif's order, and dismissed the case with a direction that it may be tried and disposed of after recording evidence of both the parties according to law. Against this order the defendant has come up in revision to this Court.

(2.) As we have stated already the reference was made upon the statement of the counsel recorded on rubkar by the Court which was signed by them. Section 2, Clause (a), Arbitration Act defines an "Arbitration agreement" as "a written agreement to submit present or future differences to arbitration whether an arbitrator is named there-in or not." This section supersedes para. 1 of Schedule 2, Civil P.C., which was in these terms: Parties to suit may apply for order of reference: (1) Where in any suit all the parties interested agree that any matter in difference between them shall be referred to arbitration, they may, at any time before judgment is pronounced, apply to the Court for an order of reference. (2) Every such application shall be in writing and shall state the matter sought to be referred. When Schedule 2, Civil P.C., was in force, it was held that the statement of counsel or of parties, duly signed by them, as in the present case was an application in writing within the meaning of the said paragraph: vide Mahabir V/s. Manohar Singh A.I.R. (11) 1924 ALL. 540. The language of Section 2 (a), Arbitration Act does not even mention an application: it only requires an agreement in writing. The authority quoted above will apply with greater force to the language used in the Arbitration Act. There can, therefore, be no doubt that there was a valid reference to arbitration in the present case and the learned Judge of the Court below was entirely wrong in holding the contrary.

(3.) A preliminary objection, however, has been raised on behalf of the plaintiff- respondent to the effect that this Court has no power in the exercise of its revisional jurisdiction, to interfere with the decision of the lower appellate Court- firstly because no case has been decided by the lower appellate Court and secondly because the decision of the lower Court was merely wrong in law and no question of jurisdiction was involved.