Full Judgment Text
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PETITIONER:
ARATI PAUL
Vs.
RESPONDENT:
THE REGISTRAR, ORIGINAL SIDE, HIGH COURTCALCUTTA & ORS.
DATE OF JUDGMENT:
10/03/1969
BENCH:
BHARGAVA, VISHISHTHA
BENCH:
BHARGAVA, VISHISHTHA
SHELAT, J.M.
CITATION:
1969 AIR 1133 1969 SCR (3) 926
1969 SCC (2) 756
ACT:
Practice & Procedure-Judge seized of suit-Parties agreeing
to refer matters in dispute to arbitration of Judge-Decision
and decree by Judge--Whether award or judgment of court.
HEADNOTE:
When a partition suit and connected testamentary suit were
pending before a Judge on the original side of the High
Court of Calcutta, the parties filed an agreement before the
Judge and got it recorded that the matters in dispute in
both the suits were to be referred to the sole arbitration
of that Judge. The parties agreed to abide by any decision
*at might be given by the Judge and that no evidence need be
taken except to the extent that the Judge may desire and
that the evidence need not be recorded in any formal manner.
It was also agreed that the Judge was to have all summary
powers including the power to divide and partition the
properties. At the same time the parties added that the
Judge was to make such decrees as he thought fit and proper
and for the purpose of partition, if necessary, he could
engage or appoint surveyors and commissioners. The Judge
thereafter gave a decision passing a preliminary decree in
the partition suit and it was filed on the record of the
suit as a judgment. A preliminary decree was drawn up in
terms of that order but before it was signed, the plaintiff
presented a petition under Art. 226 of the Constitution for
the issue of a writ of mandamus directing the Registrar of
the High Court to recall, cancel and withdraw the order and
take it off the record of the partition suit as it was not a
judgment in the suit but was only an award. The writ
petition was dismissed by the High Court.
In appeal to this Court,
HELD : Where an arbitration agreement envisages that the
Presiding Judge of the Court should himself act as an
arbitrator he will occupy a dual capacity. He will be both
an arbitrator to decide the matters referred to him by the
agreement of the parties and a court, before which the suit
continues to remain pending, with jurisdiction to deal with
the suit in accordance with the provisions of the
Arbitration Act. [942 F]
In the present case the powers, conferred by the agreement
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on the Judge already seized of the partition suit, were
intended to enable him to function as an arbitrator so as
not to be bound by the rules of procedure applicable to him
as a court. If such a reference to arbitration by a
Presiding Judge before whom the suit was pending could not
be competently made under the Arbitration Act, then the
order by the Judge must be held to be a preliminary decree
passed by him as a court seized of the partition suit. If
there was a competent )reference, then, after deciding the
matters referred to him as an arbitrator, the Judge
proceeded to deal with the suit himself as a court and to
pass a preliminary decree in it. Such a course was
contemplated by the parties themselves when they stated that
the Judge could make such decrees as he thought fit. A
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decree could only be passed by the Judge in his capacity of
a court seized of the suit, because, an arbitrator could not
pass a decree. The actual order passed by the Judge also
made it clear that, in passing it, he purported to act as a
court deciding the suit and not as an arbitrator to whom
matters in dispute were referred by the parties. Therefore,
the order of the Judge was a judgment and not an award.
Since it was a judgment of the Court, the Registrar of the
High Court, under the Rules of the Calcutta High Court on
the original side, was bound to file it on the record and
retain it there and the appellant was not entitled to the
relief claimed. [942 A-D, F-H; 943 A-F]
Bickett v. Morris, (1866) L.R. I H.L. Sc. 47, White v.
Buccleuch (Duke) (1866) L.R. 1 H.L. Sc. 70, Robert Murray
Burgess v. Andrew Morton, [1896] A.C. (H.L.) 136, Wyndham v.
Jackson, [1937] 3 AR E.R. 677, Wyndham v. Jackson, [1938] 2
All E.R. 109, Sayad Zain v. Kalabhai Lallubhai, I.L.R. 23
Bom, 752, Raoji Trimbak Nagarkar v. Govind Vinayak Nagarkar,
(1897) P.J. 413, Baikanta Nath Goswami v. Sita Math Goswami,
I.L.R. 38 Cal. 421, Nidamarthi Mukkanti v. Thammana Ramayya,
I.L.R. 26 Mad. 76, Chinna Venkataswami Naicken v. Venkata-
sami Naicken & Anr. I.L.R. 42 Mad. 625, Noti Venkata
Somayajulu Guru v. Adusmilli Venkanna, I.L.R. 58 Mad. 31, K.
P. Dalal v. R. S. Jamadar, A.I.R. 1945 Bom. 478, Baijnath
v. Dhani Ram, I.L.R. 51 All. 903. Edappalli Kottamma v.
Nallapaneni Mangamma & Ors. A.I.R. 1967 A.-P.700, Pisani v.
Attorney-General of Gibraltar, (1874) 5 P.C. 516 (B), Russel
on The Law of Arbitration, 17th Edn. p. 117 & Halsbury’s
Laws of England, 3rd Edn. Vol. 2 p. 8 para 15, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 745 of 1966.
Appeal by special leave from the judgment and order dated
February 18, 1965 of the Calcutta High Court in Appeal from
Original Order No. 226 of 1964.
M. C. Chagla, D. N. Mukherjee and P. K. Sen, for the
appellant.
B. Sen, S. C. Mazumdar, G. S. Chatterjee for Sukumar Bose,
for respondents Nos. 1 and 2.
N. N. Goswari and S. N. Mukherjee, for respondents Nos. 3
and 4.
The Judgment of the Court was delivered by
Bhargava, J. This appeal, by special leave, is directed
against a judgment of the Appellate Bench of the High Court
of Calcutta dated 18th February, 1965, dismissing an appeal
against an order of a single Judge by which he dismissed a
petition under Art. 226 of the Constitution on 26th August,
1964. The facts leading up to this litigation are that one
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Shrish Chandra Paul died in the year 1930, leaving behind
his widow Pramila Sundar his daughter Arati, and 4 sons
Balai, Kanai, Netai and Gour. In the year 1945, Netai died
leaving his mother Pramila Sundari as his sole heiress. On
27th September 1946, a deed of gift in respect of two
premises Nos. 60/11 and 60/12 in Gouri Beria
928
Lane was executed by Pramila Sundari in favour of her three
sons Balai, Kanai and Gour. On 18th March, 1952, there was
an I agreement for partition between Pramila Sundari and her
three sons Balai, Kanai and Gour, by which the joint estate
left by Shrish Chandra Paul was partitioned into four lots
and a small portion of the property was left joint. On 13th
June 1957, Pramila Sundari instituted Suit No. 1045 of 1957
against Balai, Kanai and Gour for a declaration that the
deed of gift and the agreement of partition were void and
inoperative, and for a fresh declaration of the shares of
the parties and partition of the joint properties. In this
suit, Arati was also impleaded as a defendant. On 26th
August, 1957, Pramila Sundari executed a will bequeathing
her entire-estate absolutely to Arati Paul and Gour in equal
shares. On 13th January, 1958, Pramila Sundari died, and,
consequently on 12th December, 1959, an order was made in
Suit No, 1045 of 1957 transposing Arati Paul as the
plaintiff. On 3rd February, 1960, Arati Paul applied in the
Calcutta High Court for grant of Letters of Administration,
with a copy of the will of Pramila Sundari annexed. This
testamentary proceeding was contested and was marked in the
year 1962 as Testamentary Suit No. 12 of 1962. On 17th
December, 1962, the Testamentary Suit No. 12/1962 and the
Partition Suit No. 1045/1957 appeared in the peremptory list
of Mallick, J., and the Testamentary Suit was partly heard.
On 2nd and 3rd January, 1963, there was further hearing in
the testamentary suit. On 4th January, 1963, an agreement
was put forward before Mallick, J. referring the dispute in
both the suits to the sole arbitration of Mallick, J. extra
cursum curiae. Since this reference is of importance, we
may quote it in full:-
"It is recorded that all the parties consent
to this Testa. Suit as well as the partition
Suit being Suit No. 1045 of 1957 and all the
disputes involved in these two matter be
settled and referred to the sole arbitration
of the Hon’ble Mr. Justice P. C. Mallick and
the parties agreed to abide by any decision
that will be given and no evidence need be
taken except or to what his Lordship might
desire and the evidence need not be recorded
in any formal manner. Parties agree that his
Lordship would have all the summary powers
including the power to divide and partition
the properties and to make such decrees as his
Lordship thinks fit and proper and for the
purpose of partition if necessary to engage or
appoint Surveyors & Commissioners as his
Lordship thinks best.
It is recorded that all the parties have
referred this matter to the Learned Judge in
what is known as Extra Cursum Curiae
jurisdiction of this Court.
929,
It is further recorded that all parties agree
that they will not prefer any appeal from or
against the decree or order that may be passed
by his Lordship the Hon’ble Mr. Justice
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Mallick."
When this note was recorded, all the parties to the two
proceedings were represented through their counsel. In
pursuance of this agreement, Mallick, J. passed an order in
Suit No. 1045/ 1957 on 1st April, 1963. It may be mentioned
that the main dispute in the present case is whether this
order of Mallick, J. in this partition suit amounts to an
award or a judgment in a suit. On the same day, by a
separate order, he also granted Letters of Administration in
the Testamentary Suit. On 5th April, 1963, Arati Paul filed
an objection to the recording of this order as a judgment.
On 4th May, 1963, drafts of decrees drawn up in terms of
that order were issued. On 13th May 1963 Arati Paul applied
for change of her Attorney in the partition Suit No. 1045/
1957. On 17th May, 1963, the order of Mallick, J. dated 1st
April 1963 was filed on the record of Suit No. 1045/1957 as
a judgment. On 24th July, 1963, the application of Arati
Paul for change of Attorney was allowed. Thereafter, on
20th August, 1963, Arati Paul presented a Letter of Demand
to the Registrar of the Original Side of the High Court to
recall, cancel and withdraw the filing of the order of
Mallick, J. dated 1st April, 1963 from the record of the
suit and to take it off the file of that suit.
Failing to get any response, Arati Paul, on 4th September,
1963, presented a petition under Art. 226 of the
Constitution praying for issue of a writ in the nature of
mandamus directing the Registrar of the High Court on the
Original Side to forthwith recall, cancel and withdraw the
filing of the said pretended Award (that is how the order of
Mallick, J. was described in this petition) dated 1st April,
1963 as a judgment in the said Suit No. 1045/1957 as part of
the records of the said suit, and another writ of mandamus
directing the Registrar of the High Court to forthwith take
off the said,pretended Award dated 1st April, 1963 from the
file and/or records of the said Suit No. 1045/1957. In this
petition, apart from the Registrar of the High Court on the
Original Side, Balai, Kanai and Gour were also impleaded as
opposite parties. This petition under Art. 226 of the
Constitution was numbered as Matter No. 366 of 1963 and was
summarily rejected by Banerjee, J. on 5th September, 1963.
On 16th September, 1963, Appeal No. 228 of 1963 was
entertained against this judgment under the Letters Patent,
but an application presented for an interim injunction
restraining the Registrar from taking any steps pursuant to
the judgment of Mallick, J. dated 1st April, 1963 pending
disposal of the appeal was rejected. On
930
27th November, 1963, Arati Paul obtained special leave to
appeal from this Court against the, refusal of the interim
in junction by the interlocutory order dated 16th September,
1963. While this appeal was still pending in this Court,
the Appellate Bench of the High Court, on 28th April, 1964,
allowed Appeal No. 228 of 1963, directed issue of a Rule in
Matter No. 366 of 1963, and ordered stay of all proceedings
pursuant to the order of Mallick, J. dated 1st April, 1963,
till the final disposal of the Rule. Since the appeal in
this Court had become infructuous, it was not prosecuted and
was dismissed for non-prosecution on 29th April, 1964. On
10th June, 1964, two of the parties Kana and Balai took out
a notice of motion for revocation-of Letters of
Administration which had been granted to Arati Paul by the
order of Mallick, J. dated 1st April, 1963 in the
Testamentary Suit. This notice was returnable on 15th June,
1964. Matter No. 366 of 1963, having been remanded by the
Appellate Bench, appeared for final hearing before Sinha,
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J., on 15th July, 1964, but it was directed ’to go out of
the list as an objection was taken on behalf of Kanai and
Balai to the matter being taken up by him on the ground that
he was a member of the-Appellate Bench which had directed
issue of the Rule in that Matter. On 16th July, 1964, this
Matter No. 366/1963 was mentioned before the Chief Justice
for being assigned to some other Judge, when a direction was
made by the Chief Justice that a letter should be written by
the party concerned to his Secretary. On 27th July, 1964,
the Notice of Motion taken out by Kanai and Balai for
revocation of Letters of Administration was partly heard by
Mallick, J. who recorded the following minutes
"Part Heard. The Rule issued by the Appeal
Court in Matter No. 366/63 in the matter of
Arati Paul vs. Registrar, O.S., appears to be
intimately connected with the application that
is now pending before me. I direct that this
matter with the said Matter No. 366 be placed
before the Hon’ble C.J. for proper
determination. Let this matter along with the
matters appear day after tomorrow when I shall
give directions. Interim Order to continue
except that Arati Paul will collect rent."
It appears that, simultaneously with these proceedings, an
application for taking proceedings for Contempt of Court
were also pending before him in this connection. Hearing in
Matter No. 366/1963 was concluded on 12th August, 1964, and
then an, order was made that this Matter as well as the
proceedings relating to Notice of Motion for revocation of
the Letters of Administration and the application for
taking proceedings for contempt should appear in the list
for judgment one after the other. On 26th August, 1964
Mallick, J. passed an order discharging the Rule in Matter
No. 366/1963 as well as dismissing the other two
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applications. Subsequently, on 1st September, 1964, the
preliminary decree drawn up on the basis of the order of
Mallick, J. dated 1st April, 1963 in Partition Suit No.
1045/1957 was signed by him, and on 3rd September, 1964, the
decree was filed. On 21st September 1964, Arati Paul filed
Appeal No. 226 of 1964 challenging the order dated 26th
August, 1964 passed by Mallick, J. dismissing Matter No. 366
of 1963. The appeal was dismissed by the Appellate Bench of
the High Court on 18th February, 1965 and the order of the
High Court in the appeal was filed on 16th March, 1965.
Arati Paul then applied for a certificate under Art. 133(1)
of the Constitution for leave to appeal to this Court. That
having been refused, she obtained special leave from this
Court and has now come up in this appeal challenging the
confirmation by the Appellate Bench of the order of
dismissal of Matter No. 366 of 1963.
The prayer in the writ petition (Matter No. 366/1963) has
been pressed before us by Mr. Chagla on behalf of the
appellant on the sole ground that the order of Mallick, J.
dated 1st April, 1963 was in the nature of an award made by
an arbitrator and not a judgment in the partition suit, so
that the appellant was entitled to obtain a writ for its
recall, cancellation and withdrawal and for taking it off
the record of the suit. Being a mere award of an
arbitrator, it could not be treated as a judgment in the
suit, nor could a decree be drawn up on its basis. On
behalf of the respondents, other than the Registrar of the
High Court on the Original Side, Mr. Goswami has argued
that, even though under the agreement dated 4th January
1963, Mallick, J. was requested to act extra cursum curiae
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and the suit was left to his arbitration, he, in fact, when
passing the order dated 1st April, 1963, acted as a Court
and passed a preliminary decree. According to him, a
preliminary decree, in a suit for partition can only be
passed by a Court and not by an arbitrator when giving an
award in the dispute referred to him. He has, therefore,
urged that the Registrar was. right in filing that order on
the record of Suit No. 1045 of 1957 as a judgment, and no
writ of’ mandamus can be issued to him to recall, cancel or
withdraw it or take it off the record. Learned counsel for
the Registrar also urged that all that the Registrar did was
to file the order of Mallick, J. in accordance with the
Rules of Court, because it was a judgment passing a
preliminary decree in the suit, so that the appellant was
not entitled to the writ of mandamus sought in Matter No.
366 of 1963.
Mr. Chagla, in support of his argument, relied primarily on,
two decisions of Courts in England and on the principle
enunciated by Russel in his book on "The Law of Arbitration"
17th Edn. In this book at V., 117, Russel has enunciated
the principle as. follows :-
Sup.CT/69-1 0
932
.lm15
"The subject-matter of an action may be referred to a judge
as arbitrator. The judge in such a case will, if such, is
the intention of the parties, be merely an arbitrator and
have no special powers by virtue of the fact that he is a
judge, and his award will not be subject to appeal."
After laying down this principle, Russell goes on to
elaborate it in the subsequent notes with reference to some
decisions, and one of these principles enunciated is:
"When, with the consent of both parties, a
judge deviates from the regular course of
procedure of the court, he ceases to act
judicially and becomes an arbitrator, whose
decision is subject to no appeal."
In support of this last proposition, Russell has quoted the
decisions in Bickett v. Morris(1) and White v. Buccleuch
(Duke) (2). We examined the decisions in these two cases,
but could not find any specific statement in them that the
decision given by a Judge ,on deviation from the regular
course of procedure of the Court has to be held to be an
award, though it was held in both cases that it would not be
subject to an appeal.
The principal case on which reliance is placed on behalf of
the appellant is the decision of the House of Lords in
Robert Murray Burgess v. Andrew Morton(3). In that case, a
suit was first brought for recovery for a certain amount and
the cause was set down for trial before the Lord Chief
Justice, when there being no likelihood of its being
reached, the parties, with the consent of the learned judge,
agreed to withdraw it from trial, and to state a special
case for the decision of the court. It was held by the
House of Lords that the special case so stated did not raise
directly any question of law and its decision only depended
on questions of fact, so that the statement of the special
case did not confer jurisdiction on the Court to deal with
it as such. The learned Judges of the Divisional Court
seized of the special case pointed out the incompetency and
inexpediency of trying such a question by means of a special
case, but expressed their willingness to do the best they
could to decide it, if the parties desired them to do so;
and on that footing, they heard the case and gave judgment.
On appeal, the Court of Appeal reversed that judgment. This
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judgment of the Court of Appeal was brought up before the
House of Lords which had to consider the nature of the
judgment given by the Divisional Court. Lord Watson in his
speech held:-
(1)(1866) L.R. 1 H.L. Sc. 47. (2) (1866) L.R. 1 H.L. Sc. 70.
(3) 18961 A.C. (H.L.) 136.
933
.lm15
"There are several decisions of this House, in cases coming
from Scotland, which appear to me to affirm that the
judgment, of a court below, pronounced extra cursum curiae,
is in the nature of an arbiter’s award, and that, as a
general rule at least, no appeal from it will lie. An
appeal was held, on that ground, to be incompetent in Craig
v. Duffus(1); Dudgeon v. Thomson(2) and Magistrates of
Benfrew v. Hoby(3)."
Lord Shand also expressed a similar view, taking note of the
fact that, as soon as it became apparent to the learned
Judges of the Divisional Court that the special case raised
only a question of fact for their determination they would
have been warranted, in declining to give judgment on it.
It was apparent that the learned judges yielded to the
entreaties of both parties in entertaining and disposing of
the case; and, on this basis, expressed his opinion as
follows :-
"I agree in thinking that the proceeding was
extra cursum curiae, and that the decision of
the dispute between the parties was of the
nature of an award by arbiters, as, indeed,
the learned judges of the Divisional Court
seem themselves to have thought, as appears
not only from the terms of Wills, J.’s
judgment, but from the observations of both
judges when the defendant proposed to appeal."
Reliance was also placed on the decision of Goddard, J. in
Wyndham v. Jackson(4). The facts of that case were that the
plaintiff issued a writ in the Chancery Division claiming an
account and payment of all sums due to her under a contract
entered into by the plaintiff with the defendant. An order
was made in the action by consent directing an account and
the master, who dealt with that order, extended the ambit of
his enquiry beyond the terms of the order at the invitation
of ’both parties, gave a decision on a matter which was not
covered by the Judge’s order for an account, and issued a
certificate to the effect that a, certain sum was due from
the defendant to the plaintiff. The question that was
raised before Goddard, J. by the plaintiff was that she was
entitled to recover the amount certified by the master, on
the ground that the certificate was equivalent to an award
having been made pursuant to an oral submission by counsel,
who asked him to deal with all matters in dispute, though
not technically covered by the order directing an account.
It was also submitted on her behalf that the minute in the
master’s book, indicating an order that he was prepared to
make on the plaintiff’s application for an order for
payment, was also an award entitling
(1) 6 Bell’s Ap. 308.
(2) 1 Macq. 714.
(3) 2 Macq. 478.
(4) (1937] 3 All E.R. 677.
934
her, not only to the, amount mentioned, but also to the
costs of the Chancery proceedings. After considering the
views expressed in a number of cases, Goddard, J. held:-
"I must take it that it has been finally
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decided, in a matter between the parties, that
the certificate was given ex cursum curiae.
Then, as I find it was the result of a hearing
which both parties requested, and to which
they assented, I think it falls within the
line of cases on which the plaintiff relies,
and can be enforced as an award."
This case went up in appeal before the Court of Appeal whose
decision is reported in Wyndham v. Jackson(1). That Court
differed from Goddard, J. on the nature of the order made by
the master and held that the determination by the master was
not a final determination and was never intended to be
treated as a final arrangement between the parties. That
matter was still to go before the Judge who had made the
order for account and the master’s certificate could not be
binding until it had been confirmed by the Judge. The
position of the master was held to be exactly analogous to
the position of an arbitrator to whom the court may have
referred a matter to make a report to the court in order
that the court may give a final decision between the
parties. On this view, the Appeal Court did not go into the
question whether the decision given by the master amounted
to a decision given extra cursum curiae and whether it was
enforceable as an award. The award of the master, being
treated as provisional and subject to confirmation by the
Judge, could obviously not be enforced as such. Thus,: the
view expressed by Goddard, J. that the decision of the
master could be enforced as an award, if it had been final,
was neither affirmed nor set aside.
The cases in India relied upon are two decisions of the
Bombay and Calcutta High Courts. In Sayad Zain v. Kalabhai
Lallubhai(2), before the case came to a regular hearing
before the Court of the First Class Subordinate Judge,
Surat, the parties as well as their pleaders signed an
application which ran as follows :-
"We have decided that the Court should make
a settlement of the dispute between us
according to Chapter XXXVIII of the Civil
Procedure Code, and we will abide by whatever
decision the Court may give.
We have specially decided that the Court
should have full authority to obtain
information from the parties in whatever way
the Court may think proper, but the parties
(1) [1938] 2 All E.R. 109.
(2) I.L.R.. 23 Bom. 752.,
935
are not to produce any evidence except
documentary records."
The Subordinate Judge, in pursuance of this agreement,
proceeded to deal with the case and ordered defendant to pay
plaintiff a certain sum, having dispensed ’with the
requirement of going through the formal procedure of
rejecting the suit and registering their application as a
fresh suit, because the parties referred him to the decision
in Raoji Trimbak Nagarkar v. Govind Vinayak Nagarkar(1). An
appeal against this decision was taken to the High Court of
Bombay which noted the fact that the Subordinate Judge had
referred to the case mentioned above and held:
"The very mention of that case shows that the
parties must have intended that the decision
of the Subordinate Judge as arbitrator should
be final. In that case, as in this, the
parties solemnly agreed by themselves and by
their pleaders to abide by the decision of the
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Court to be made in a particular way. They
cannot, therefore, appeal from it."
The Court further expressed the opinion that:
"The fact that the express provisions of
Chapter XXXVIII of the Civil Procedure Code
were knowingly disregarded, shows that the
proceedings were extra cursum curiae, and thus
the judgment of the Subordinate Judge was in
the nature of an arbitrator’s award, against
which an appeal cannot be entertained if the
competency of the appellate Court is objected
to by the party holding the judgment. The
fact that the Subordinate Judge gave his award
in the form of a decree will not make it a
decree from which a regular appeal can lie."
In Baikanta Nath Goswami v. Sita Nath Goswami(2), after the
hearing of a suit in a Munsif Court had commenced and some
evidence had been recorded, the parties agreed to leave the
questions in dispute between them to the determination of
the Munsif after he had inspected the locality, and also
agreed not to raise any objection to the decision so arrived
at by the Munsif and to hold themselves bound by the
decision of the Munsif. It was specifically stated in the
agreement that neither of the parties shall be competent to
raise any objection to the decision or to prefer an appeal.
Acting on this submission, the Munsif made a local
inspection and passed an order with which the plaintiffs
were not content, so that they applied to the Munsif under
section 623 of the Civil Procedure Code, 1882, for a review.
The Munsif granted the review and passed a second order in
modification of his
(1) [1897] P.J. 413.
(2) I.L.R. 38 Cal. 421.
936
first order, and again embodied the order in what purported
to be a decree in the suit. Against this decree, an appeal
was filed by the defendants before the District Judge who
entertained the appeal and made an order of remand. On
second appeal, the High Court of Calcutta held that the
first judgment of the Munsif was in the nature of an award
and that it did not lose that character because he embodied
the operative part of that judgment in what purported to be
a decree in the suit. He was in fact an arbitrator by the
submission of the parties and his decision was an award. It
was not open to him to alter that award when made or to
review his decision. It was further held that no appeal,
consequently, lay to the District Judge against that
decision. It is on the basis of these cases that it was
argued that, in the present case also, the order made by
Mallick, J. should be held by us to be in the nature of an
award made by an arbitrator, so that it cannot be treated as
a decree and filed as such in the partition suit which was
pending before him.
As against these cases cited on behalf of the appellant, our
attention has been drawn on behalf of the respondents to
the-views in Halsbury’s Laws of England, and to certain
decisions of Courts in India. In Halsbury’s Laws of
England, Third Edn., Vol. 2, at p.8 in para. 15, it is
stated:-
"An arbitration agreement must be an agreement
to refer disputes to some person or persons
other than a court of competent jurisdiction.
In principle, a judge sitting extra cursum
curiae may sit as arbitrator under an
arbitration agreement and a reference to a
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foreign court has been treated as an
arbitration agreement for the purpose of
exercising the jurisdiction to grant a stay of
proceedings arising out of the same subject-
matter. An agreement that the decision of a
judge sitting in court should be unappealable
is however, despite the language of some of
the decisions cited, not an arbitration
agreement; the decision, when given, is a
judgment, not an award, and the judge is not
placed in the position of an arbitrator."
Reliance is placed particularly on the last sentence of the
above extract from Halsbury’s Laws of England.
In Nidamarthi Mukkanti v. Thammana Ramqyya(1), parties in a
suit pending before the District Munsif presented a petition
undertaking that both parties would abide by the decision of
the Court that may be passed, as it thinks just, after
perusing the documents filed by both parties and all the
records in the said suit, and after measuring the sites and
inspecting the marks, etc.,.
(1) I.L.R. 26 Mad. 76.
937
which are thereon. The District Munsif ordered accordingly,
inspected the site, and found in favour of the plaintiff and
pronounced judgment giving him the order claimed, and
granted the injunction. It was held by the Madras High
Court on appeal that the District Munsif acted as arbitrator
by consent of parties and that, consequently, no appeal lay
from his decision which must be looked on as an award. It
was, however, added that, as no attempt had been made to
attack that award on any of the grounds specified in section
521 of the Civil Procedure Code, the Court must look on the
decree of the District Munsif as one passed in accordance
with the award and uphold it as such.
In Chinna Venkatasami Naicken v. Venkatasami Naicken and
Another(1), in a suit for money due upon a mortgage bond,
after the examination of some witnesses, parties agreed to
refer the questions of law and fact arising in the case to
the decision of three persons, viz.. the Subordinate Judge
and two friends of the parties. An award was made by the
majority. Thereupon, an application was presented by the
defendants to set aside the award on various grounds. The
Subordinate Judge over-ruled the objections and passed a
decree in accordance with the award. In the Revision before
the Madras High Court, the main ground taken was that the
reference to the Subordinate Judge as one of the arbitrators
was illegal and that whole award was vitiated thereby.
Seshagiri Ayyar, J., in confirming the decree of the Sub-
ordinate Judge, held:-
"In my opinion, therefore, although the
procedure adopted by the Subordinate Judge in
dealing with the matter as if it was a
reference under the second schedule and as if
the provisions of the Code applied was wrong,.
inasmuch as a decree was passed in terms of
the award, the defendant as a party to the
reference is not entitled to contest its
finality and to request that the case should
be heard again."
Wallis, C.J., said:-
"I think a reference of the suit to the
presiding judge must be held to be altogether
extra cursum curiae and not the less so when
two others are joined with him, and that the
decree passed in accordance with their
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decision must be regarded as a consent decree,
and as not subject to the provisions of the
second schedule."
In Noti Venkata Somayajulu Garu v. Adusumilli Venkanna(2),
in a suit claiming an easement of necessity in respect of
certain lands, the District Munsif, at the request of the
defendant, made
(1) I.L.R. 42 mad. 625.
(2) I.L.R. 58 Mad. 31.
938
a local inspection of the site, whereafter the plaintiff was
examined-in-chief and some documents were filed.
Thereafter, the parties requested the Court to give a
decision on the evidence already on the record and intimated
that they proposed to adduce no further evidence. The
Munsif gave his decision partly in favour of the plaintiff
and partly against him. The plaintiff appealed to the
Subordinate Judge who dismissed the appeal, holding it to be
barred by reason of the joint statement given by the parties
before the Munsif. On further appeal, the High Court of
Madras held that, although the proceeding was not extra
cursum curiae, the right of appeal was nevertheless barred
by reason of the special agreement.
In K. P. Dalal v. R. S. Jamadar(1), in an application
registered as a suit for ejectment from a premises, the
Judge trying the suit, at the first hearing of the suit,
after pleadings of parties had been put in, enuired of the
advocates of the parties as to whether they wanted a formal
trial or whether they were prepared to leave the matter to
him to be summarily decided as an arbitrator after hearing
the respective advocates and inspecting the premises. Both
the advocates agreed to the learned Judge hearing the facts
from them and after inspection of the premises by the Court
to submit to his decision as suggested. Thereafter, the
Judge inspected the premises and ultimately, on a further
agreement by both parties that the matters in dispute should
be decided by the Judge as an arbitrator, he gave his
decision. When the case came up in revision before the
Bombay High Court, the learned Judge of that Court referred
to the quotations from Halsbury’s Laws of England and
Russell on Arbitration which we have noticed earlier, and
expressed his opinion that he did not think that those
observations necessarily meant that the Judge ceased to be a
Judge and became a pure arbitrator in the sense that he
could refer the dispute to himself and also remit the award
to himself. The order of the trial Judge dismissing the
application and making no order as to costs was upheld on
the view that the trial Judge had not lost his capacity as a
Judge and had not become a pure arbitrator governed by the
Arbitration Act and, therefore, the provisions of that Act
would not apply to him, so that the order passed by the
trial Judge was correct.
In Baijnath v. Dhani Ram(2), a suit for declaration, removal
of certain encroachments, and a perpetual injunction came
for trial before the Munsif where the parties agreed that
the Munsif should decide the case on inspection of the
documents filed by the parties and on inspection of the
locality. They further agreed to accept the decision of the
Munsif. The Munsif wrote a judgment and decreed the suit in
part. There was an appeal to the
(1) A.I.R. 1945 Bom. 478.
(2) I.L.R. 51 All. 903.
939
District Judge which was dismissed and the second appeal
came before the High Court of Allahabad which was also
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dismissed. While the appeal before the District Judge was
pending, an application for review of judgment was also
presented before the Munsif. In disposing of this
application, the Munsif held that he was an arbitrator and
that his decision was binding on the parties, so that an
application for review did not lie as there was no
sufficient cause for review. This order was again taken up
in Revision before the High Court, and the question arose
whether the Munsif could not entertain the application for
review because he was an arbitrator. The Court held:-
"The Munsif, in accepting the position of an
arbitrator, had a two-fold capacity. He was
an arbitrator, but he was also the court. If
the arbitrator left anything undecided, the
parties would be entitled to go to the court
and to ask the court to remit the award to the
arbitrator. The fact that the two capacities
were consituted in the same person should not
deprive a party of his right of having matters
set right."
On this view, the Court was of the opinion that an
application for reveiw lay against the judgment of the
Munsif, allowed the revision and directed the Munsif to take
up the application for review afresh and consider it on the
merits.
In Edapalli Kotamma v. Nallapaneni Mangamma and Others(1),
in a suit for mandatory injunction directing the defendants
to remove certain constructions and for a permanent injunc-
tion restraining them from obstructing the flow of surplus
water from plaintiff’s land, the parties, after a
Commissioner appointed to inspect the locality had prepared
certain plans and submitted his reports, signed and filed a
memorandum before the District Munsif in the following
terms--
"Both parties agreed to abide by the decision
of the Hon’ble Court after personal
inspection. The parties are not adducing oral
evidence. Documentary evidence can be
received."
The District Munsif inspected the locality, placed on record
a detailed note of the physical features of the locality,
etc., and, on the basis of the Commissioner’s plans and
reports and his own personal inspection, gave a judgment for
the plaintiffs. A decree was also drawn up in the usual
course. The first defendant preferred an appeal which was
rejected by the first appellate court on the ground that it
was incompetent. In second appeal before the Andhra Pradesh
High Court, the question arose whether the first appellate
Court was right in holding that no appeal lay to it from the
decree of the trial Court. A learned single Judge of
(1) A.I.R. 1967 A.P. 700.
940
the Andhra Pradesh High Court differed from the view
expressed in Nidammarthi Mukkanti’s case(1) and held that
there could not be a reference to arbitration by the Judge
to himself. He expressed the view by saying.:
"It would be fantastic to say that in a case
like the present, the Court made a reference
to itself, fixed the time for the making of
the award, stayed its hand till the expiry of
the time fixed for the submission of the
award, received the award, gave time for
objections to the award, heard the objections
and, finding no grounds for setting aside the
award, pronounced judgment in accordance
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therewith."
He went on to hold:-
"The Arbitration Act of 1940 makes it clear
that a reference to arbitration could be made
only in accordance with the Act and the
procedure prescribed by the Act should have
been followed before ss. 17 and 39 of the Act
barring appeals from decrees on awards, could
be invoked. Consequently, the decision of the
trial Court could not be treated as the award
of an arbitrator and the decree that followed,
could not be held to be a decree on. an award
and therefore not open to appeal."
He then proceeded to examine the question whether, there
being no statutory provisions barring a right of appeal in
that case, there was any principle of law which deprived the
parties of the right of appeal. He noted the fact that, in
that case, there was no express agreement not to appeal; but
the controversy turned on the question whether, by their
conduct, the parties should be deemed to have given up their
right of appeal and whether the waiver of the right of
appeal should be implied from the terms of the agreement
between the parties. The learned Judge held that there had
been no waiver of the right of appeal, so that the appeal
before the first appellate Court was competent. The order
dismissing that appeal was set aside and the case was
remanded for a decision of the appeal on merits.
Reference may also be made to a decision of the Privy Coun-
cil in Pisani v. Attorney-General of Gibraltar(2). It that
case, the Crown claimed certain lands as escheated for want
of heirs of the deceased owner. The defendants to the
action were a purchaser from that owner, a person who
claimed that the purchaser was only a trustee for him, and
certain legatees and beneficiaries under a will of the
deceased. During the course of trial, it became evident
that the title of the Crown by escheat was unsustainable,
but, instead of dismissing the suit, the Court, with the
consent of the
(1) I.L.R. 26 Mad. 76.
(2) (1874) 5 P.C 516. (E).
941
parties, allowed an amendment of the pleadings by the
addition of a prayer that the rights of the several
defendants might be ascertained and declared by the decree.
of the Court. The Court then enquired into the rival claims
of the defendants and declared their respective rights. One
of the defendants preferred an appeal from the judgment to
the Privy Council and a preliminary objection was taken to
the competency of the appeal. The Judicial Committee of the
Privy Council held that,though the amendment of the
pleadings in the Court below could not have been made except
by consent of parties and though the Court below had been
invited by the rival claimants to adjudicate upon their
rights interse, there was no stipulation that the right of
appeal should be given up. The parties did not contemplate
that the Judge was to hear the cause otherwise than as a
Judge or that the litigation was not to go on subject to all
the incidents of a cause regularly heard in Court, including
an appeal to the Judicial Committee. There was nothing in
the proceedings suggesting that the parties waived their
right of appeal. It was in this context that the Judicial
Committee made the following observations:-
" It is true that there was a deviation from
the cursum curiae, but the Court had
jurisdiction over the subject and the
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assumption of the duty of another tribunal is
not involved in the question. Departures from
ordinary practice by consent are of everyday
occurrence; but unless there is an attempt to
give the Court jurisdiction which it does not
possess, or something occurs which is such a
violent strain upon its procedure that it puts
its entirely out of its course, so that a
Court of appeal cannot properly review the
decision such departures have never been held
to deprive either of the parties of the right
of appeal."
The Privy Council added that it was wrong to regard the
decision of the Court as an award of an arbitrator or to
attribute an intention to the parties that the decision
should not be open to appeal.
A review of all these decisions shows that the question as
to the nature of an order made in circumstances similar to
those with which we are concerned has been considered both
in England and in India primarily for the purpose of
deciding whether such an order is subject to an appeal like
an ordinary judgment of a Court from which an appeal lies.
In some cases, the right of appeal was negatived on the
ground that such a decision was in the nature of an
arbitrator’s award. In other cases, it has been treated as
a judgment amounting to a decision by consent of parties.
In the case before us, the position is different. No appeal
was ever sought to be filed against the order of Mallick, J.
dated
942
1st April, 1963. Further, the language of the agreement of
the parties, on the basis of which Mallick, J. proceeded to
make that ,order was different from that considered in these
various decisions. At the first stage, the parties got it
recorded that the matters were to be settled and referred to
the sole arbitration of Mallick, J. The parties agreed to
abide by any decision that might be given by him and that no
evidence need be taken except or to whatever extent Mallick,
J. might desire. The evidence need not be recorded in any
formal manner. Mallick, J. was to have all the summary
powers including the power to divide and partition the
properties. The conferment of these powers on Mallick, J.,
who was already seized of the partition suit, was clearly
intended to enable him to function as an arbitrator so as
not to be bound by the rules of procedure applicable to him
as a Court. At the same time, the parties added that
Mallick, J. was to make such decrees as he thought fit and
proper and, for the purpose of partition, if necessary, he
could engage or appoint surveyors and Commissioners as he
thought best. On the face of it, an arbitrator could not
pass any decree. The decree could only be passed by
Mallick, J. in his capacity of Court seized of the suit.
Even if it be held that the first part of the agreement had
the effect of bringing about a reference to him in his
capacity as arbitrator, he did not cease to be seized of the
partition suit as a Court. Even under the Arbitration Act,
if a reference is made to an arbitrator in a suit pending in
a Court, the Court does not cease to have jurisdiction over
the suit. All that is required by the provisions of the
Arbitration Act is that no further proceedings are to be
taken by the Court, except in accordance with the other
provisions of that Act. The suit continues to remain
pending before the Court. In a case like the present, where
the arbitration agreement envisages that the Presiding
Officer of the Court should himself act as an arbitrator,
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be, in such circumstances, will obviously occupy a dual
capacity. He will be both an arbitrator to decide the
matters referred to him by the agreement of the- parties,
and a Court before which the suit continues to remain
pending having jurisdiction to deal with the suit in
accordance with the provisions of the Arbitration Act. It
is a question whether a reference to arbitration by a
Presiding Judge, before whom a suit is pending, can be
competently made under the Arbitration Act; but that is a
point on which we need express no opinion, because, if it be
held that there was no reference to arbitration in the
present case, the order passed by Mallick, J. must be held
to be a preliminary decree passed by him as a Court seized
of the partition suit. On the other hand, even if it be
held that there was a competent reference, it is clear that,
after deciding the matters left to his decision as an
arbitrator by the parties, Mallick, J. proceeded further to
deal with the suit himself as a Court and to pass a
preliminary decree in it which course being adopted by him
943
was envisaged by the parties themselves when they stated
that he could make such decrees in the suit as he thought
fit. The actual order passed by Mallick, J. also makes it
clear that, in passing that order, he purported to act as
the Court deciding the suit and not as the arbitrator to
whom some matters in dispute were referred by the parties.
At the beginning of the order, Mallick, J. described himself
as "the Court". When making the operative order, he used
the following language:-
"In the result, for the present, I will pass a preliminary
decree as under :-
On the face of it when he passed this order he acted as a
Judge. seized of the suit who alone was competent to pass
the preliminary decree in the suit. Consequently, we cannot
accept the submission made by Mr. Chagla that the order made
by Mallick, J. should be held to be an award of an
arbitrator pure and simple and not a decree by a Court.
We are not concerned in this appeal with the question whet-
her it was appropriate for Mallick, J. to have dealt with
the suit in this manner, nor whether the actual order made,
by him passing the preliminary decree was correct or was
liable to be set aside on the ground of the incorrect
procedure adopted by him. As we have mentioned earlier, the
sole relief claimed before the High Court was the issue of a
writ of mandamus directing the Registrar on the Original
Side to recall, cancel and withdraw this order and to take
it off the record, on the ground that it was an award and
not a judgment of the Court. Since we have held that it was
a judgment of the Court, the Registrar on the Original Side,
under the Rules of the Calcutta High Court, was bound to
file it on the record and retain it there. The appellant
could have sought appropriate remedy for having that
judgment vacated and, if such a remedy had been sought
against that judgment directly, the question whether it was
a good judgment and should be retained on the record or not
could have been appropriately decided. The. remedy sought
by the appellant of seeking a writ to restrain the Registrar
on the Original Side from keeping the judgment on the record
of the suit could ’not possibly be allowed, while the judg-
ment stood and was not vacated.
In the result, we have to hold that the order of the High
Court dismissing the petition filed by the appellant was
correct and justified. The appeal is dismissed, but, in
view of the special circumstances of this case, we direct
parties to bear their own costs.
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V.P.S. Appeal dismissed-
944