Jaipal Tewary vs Tapeswari Tewary

Jwala Prasad, J.—The suit brought by the plaintiff who is the appellant here was dismissed by both the Courts below. During the pendency of the appeal before the Subordinate Judge an application was filed before the District Judge, on the 9th December 1916, for a reference of the case to the arbitration of the persons named therein. This application has been signed by one Narain Lal who was the Pleader engaged on behalf of the defendants and by Babu Balbir Prasad Pleader on behalf of the plaintiff. The defendants Nos. 6 to 9 are described in the plaint as pro forma defendants. In the body of the plaint it is said that they were made defendants to avoid any objection and that they need not appear. They did not contest the claim of the plaintiffs. As a matter of fact it appears that they did not appear at any stage of the case. The contest, therefore, was between the plaintiff and the other defendants who appeared in the case.

The petition referred to above was rejected by the District Judge on the ground that all the parties did not join in the application for referring the matter to arbitration. The appeal was dismissed by the lower Court on the merits after hearing the parties on the 8th January 1917.

This is an appeal against the judgment and decree of the lower Court, dated the 8th January 1917. No appeal was preferred against the order, dated 9th December 1916, rejecting the application for referring the dispute to arbitration. The present appeal was filed on the 17th April 1917. It is doubtful whether there is any express provision in the CPC for an appeal against an order refusing to refer to arbitration on the application of the parties under rule 3 of the Second Schedule. If an order under rule 3 was appealable, then the appeal of the plaintiff against that order was barred by time. Section 104 of the CPC makes certain orders passed by a Court regarding arbitration matters appealable, but it appears that an order under rule 3 does not come under any of the clauses mentioned in section 104.

It was contended by the learned Vakil on behalf of the respondent that it comes under clause (e) of section 104, but that clause apparently refers to an order passed, under rule 18 of the Schedule, for it relates to a stay of suit when there is an agreement outside the Court to refer matters to arbitration, whereas rule 3 relates to the reference by the Court of the matter in difference in a suit pending in Court for final adjudication by the arbitrators appointed by the parties. If section 104 did not apply, there was no appeal from the order rejecting the application and hence there was no bar to the objection being taken in the present appeal. If on the other hand section 104 did apply, the objection could be taken u/s 105 in an appeal against the final decree as has been done in this case, for the result of the granting of the petition for reference to arbitration would affect the decision of the case and the decision of the arbitrators would have taken the place of the decision of the lower Appellate Court. Similar was the view taken in the case of Ram Autar Tewari Vs. Deoki Tewari, and also in Datta v. Khedu 11 Ind. Cas. 935 : 33 A. 645 : 8 A L.J. 678. However be that as it may, it appears to me that the second appeal on behalf of the plaintiff should be dismissed upon another ground.

The application filed before the District Judge referred to above praying for the reference of the case to the arbitrators for arbitration has not been signed by the parties themselves. The Pleaders of the parties who have signed the application do not appear to have had any express authority given to them by the powers-of-attorney or Vakalatnamahs filed in this ease. They had, therefore, no power to make this application on behalf of their clients.

The power of a Pleader is defined in the Vakalatnamah or power-of-attorney given to him. A Pleader has no right to compromise on behalf of his client unless expressly authorized to do so; nor is be empowered to refer a matter to arbitration except by an express authority in that behalf.

The principle appears to have been recognized in the case of Jagapathy Mudaliar Vs. Ekambara Mudaliar, and in Thakoor Pershad v. Kalha Pershad 6 N.W.P.M.C.R. 210. In the case of Ram Jiawan Ram Vs. Kali Charan Singh and Others, it was held that a Pleader should not apply for an order for referring a case to arbitration unless he has been expressly authorized to do so. A Vakalatnamah in general terms is wholly insufficient. This ruling added further that where, however, a party on whose behalf an application is signed knows about it and acquiesces in it, he cannot raise an objection for want of authority to the Pleader afterwards. Well the first portion of the ruling supports the view that I have taken whereas there is nothing on the record to show that the parties in this case acquiesced in the filing of the application. There are so many defendants in the case and so it is impossible to say whether all the defendants were present or they acquiesced in that application. As a matter of fact the parties had the appeal heard and decided by the Judge and in this Court the defendants contest the application for reference filed before the Judge.

The definition of Pleader given in clause 5 of section 2 of the CPC makes it clear that the position of a Pleader is that of an agent in relation to his client and his power is, therefore, created entirely by the Vakalatnamah given to him by his client.

In this case there is no express authority in either of the Vakalatnamahs filed on behalf of the plaintiff or the defendants to refer the matter to arbitration. I, therefore, hold that the application has been filed without any authority at all. Under rule 1 of the Second Schedule an application for an order for reference to arbitration must be made by all the parties interested and that application must be in writing. In this case there was no application in writing made by the parties themselves nor by their authorized agents. The application was, therefore, rightly rejected by the lower Court.

On behalf of the respondents it was also contended that all the parties to the suit were not made parties to the application for reference to arbitration. This was the view taken by the learned Subordinate Judge. The point is a controversial one. Kale 1, as it now stands, is different from the corresponding section 506 of the old Code of Civil Procedure. In the place of all the parties to the suit in the old Code we have in the present Code "all the parties interested." This obviously means that all the parties interested in the litigation only need be parties to the application. It is a question of fact in each case as to who are the parties interested in the litigation. In the present case upon the pleading the defendants Nos. 6 to 9 do not appear to have been interested in the litigation; they were expressly named as pro forma defendants and were made defendants with the express words that they need not enter appearance in case they had no objection to the claim of the plaintiff. As a matter of fact they did not appear at any stage of the litigation. It is needless to say more upon the point, for, as already observed, there was no proper application before the lower Court as required by the Second Schedule. It was argued, however, on behalf of the appellant that clause 2 of rule 1 of the Schedule requiring that the application shall be in writing is only directory and not mandatory, and that the application may be made orally by the parties.

Reliance has been placed upon the ruling in Abdul Hamid Vs. Riaz-Ud-Din, for the above contention. In that case the application was made orally by the parties who were identified by their respective Pleaders before the Court and their application was reduced in writing by the Court itself, and the matter was thereupon referred under the orders of the Court to arbitration. The facts in that case are quite dissimilar to the facts in the present case and in the particular circumstances of that case the requirements of the rule might be taken to have been complied with. I, therefore, hold that there is no substance in the contention of the learned Vakil for the appellant. This is the only ground upon which the appeal has been pressed before me.

The learned Vakil made a passing reference in the course of his argument that he was entitled to a modification of the decree of the Court below in that he should have been allowed a right of easement to go over the land of the defendants in order to repair his wall. This point does not appear to have been pressed in the Courts below and there is no reference to it at all in the judgment of either Court. It has not been seriously pressed before me as well, and I do not think that there is any force at all in the contention. Apart from its having been raised at a late stage, it should not be permitted in second appeal unless there is a substantial ground for the new point to be raised. I, therefore, dismiss this appeal with costs.