Maharaj Bhagat vs Harihar Bhagat

Das, J.—The order complained of must be set aside.

The petitioner was the plaintiff in a suit to recover money on a hand note alleged to have been executed by the opposite party, The suit was by consent of the parties referred to the arbitration of certain individuals, and it appears that time for filing the a ward was extended from time to time. On the 3rd March 1921 the Court recorded the following Order in the order sheet: "Time extended to 17th March 1921 for filing the award. Pleaders of both parties be informed that parties must come ready with their witnesses, if the award not filed till the date, fixed and the order for arbitration will be superseded."

It appears that the award was not filed on the 17th March 1921 and the learned Munsif at about 4 p.m. sailed on the suit and dismissed it. Thereafter the petitioner presented an application under Order IX, Rule 4, but the learned Munsif dismissed that application in a very elaborate judgment.

In my opinion the learned Munsif has, not acted according to the provision of paragraph 8 of the II Schedule. Civil Procedure Code. That paragraph provides as follows:

Where the arbitrators or the umpire cannot complete the award within the period specified in the order, the Court may, if it thinks fit, either allow further time, and from time to time, either before or after the expiration of the period fixed for the making of the award, enlarge such period; or may make an order superseding the arbitration, and in such case shall proceed with the suit.

In my opinion a Judge does not act within the spirit of this paragraph by proceeding with the suit on the date fixed for the filing of the award. It must be remembered that the filing of the award is an act of the arbitrator, and it will be manifestly unjust to require the party to be present in the Court on the date on which the award is required to be filed by the arbitrator. The paragraph obviously means that the Court must wait till the date fixed by the Court for the filing of the award. If the award is not filed on that date, the Court may then, and not in anticipation of the arbitrators not filing the award, make an order superseding the arbitration and fixing a date for proceeding with the suit. That course was not adopted in this case and the order must accordingly be set aside.

I would set aside both the orders of the learned Munsif and direct him to proceed with the suit.

The petitioner will be entitled to costs of this application, hearing fee one gold mohur.