AI Structured Summary
Not yet generated for this judgment
Judgment
Curgenven, J.—This was a suit referred to arbitration and the finding of fact is that out of five arbitrators one was absent during the
examination of one of the witnesses. The learned District Munsif is of opinion that the terms of reference provided for such a contingency inasmuch
as the parties agreed that the opinion of the majority should be accepted. But it is one thing to say that and quite another thing to say that the
parties agreed that the arbitration might be conducted by a majority, or by less than the full number of arbitrators. This view of the Lower Court
has not been supported here and it must be found on the authority of Thanimiraju v. Bapiraju ILR (1888) 12 M. 113-that it was incumbent on
each of the arbitrators to be present at each of the meetings and that accordingly, if the matter stood there, the award would be liable to be set
aside as illegal. The learned District Munsif has, however, also found that, if there was any irregularity from this cause, the plaintiff has waived it. He
notes that the plaintiff''s next friend was present on each occasion and has admitted that he took no notice of the circumstance that one of the
arbitrators was on one occasion absent. It was his business to object at the time and not to allow the proceedings to go on and terminate. The
principle has been laid down by the Privy Council in (1876) L.R. 3 I.A. 209 (Privy Council) . ""The appellant,"" their Lordships say,
having a clear knowledge of the circumstances on which he might have founded an objection to the arbitrators proceeding to make their award, did
submit to the arbitration going on; that he allowed the arbitrators to deal with the case as it stood before them, taking his chance of the decision
being more or less favourable to himself; and it is too late for him, after the award has been made, and on the application to file the award, to insist
on this objection to the filing of the award.
This seems to me to be precisely what the plaintiff''s next friend did, and I cannot say that in accepting his conduct as an answer to the objection
the learned District Munsif has gone beyond the discretion vested in him. There is clearly no question here of exceeding his jurisdiction.
Exception is then taken to the manner in which the arbitrators have dealt with the B and D schedule properties. As regards the B schedule
property, it is said that they have not decided as between the plaintiff and the defendants to whom it belongs and as regards the D schedule, that
their decision was in conflict with admissions actually made by the defendants. It is to be observed, however, that these objections were not taken
in the memorandum filed by the plaintiff upon the award and I see no reason accordingly why I should allow them to be taken now.
It only needs to be added that the Privy Council have held in Ghulam Jilani v. Muhammad Hassan (1901) L.R. 29 IndAp 51: ILR 29 Cal. 167:
12 M.L.J. 77 (P.C.) that revision is generally objectionable in cases of awards, and I think that on the principles laid down in that case a Court
should not interfere unless it finds not only an illegality committed but some substantial harm resulting from that illegality. I have not in any way been
shown how the latter condition is satisfied.
The civil revision petition is dismissed with costs.