Om Parkash vs Ram Parkash

R.L. Anand, J.—By this judgment, I dispose of three civil revisions bearing Nos. 3123, 3124 and 3481 of 1994 titled as Om Parkash and others v. Ram Parkash and another, Om Parkash and others v. Ram Parkash and Om Parkash v. Ram Parkash and another respectively as in my opinion all these revisions can be disposed of by one judgment.

It is necessary for us first to refer the facts of each case. Ram Parkash is the respondent before us in all the cases. He filed 3 suits. First suit filed by him on 24.9.1986 bearing No. 101 of 1986 against Om Parkash and Ram Kishan. It was a suit for permanent injunction in which it was alleged by the plaintiff-Ram Parkash that he along with Tulsa Ram, Om Parkash and Multani Lal purchased 47 kanals 8 marlasof land out of 101 kanals 7 marlas of land from Vasdev through registered sale deed dated 5.8.198). Each of them were having 800/2027 shares, 1147/2027 share and 133/2027 share respectively. The share of Tulsa Ram was wrongly described as 1600/2027 and that of plaintiff-Ram Parkash was similarly described as 147/2027. When the mistake was discovered, Tulsa Ram executed an agreement on 23.7.1983 admitting the share of the plaintiff-Ram Parkash in the land so purchased from his 947/2027 share and his own share as 800/2027 instead of 1600/2027 and also admitted that the plaintiff-Ram Parkash is in actual physical possession of 947/2027. Tulsa Ram was the father of Om Parkash. Subsequently, Tulsa Ram died and on account of dishonesty in the mind of Om Parkash, he wanted to enter into his possession forcibly and illegally in his 47 kanals 7 marlas share which was in actual cultivation of the plaintiff-Ram Parkash. Request of the plaintiff-Ram Parkash to get it corrected was declined by Om Parkash. Hence the suit was filed by Rarn Parkash against Om Parkash and Ram Kishan for injunction.

Rarn Parkash filed the second suit bearing No. 389 of 1986 on 26.7.1986. It was a suit for declaration on similar facts relating to another sale deed dated 5.8.1981 through which he allegedly purchased 947/2027 share and Tulsa Ram purchased 800/2027 share but his share was wrongly entered as 147/2027 and that of Tulsa Rain was entered as 1627/2027. Subsequently, Tulsa Ram also executed an agreement for correction of the share of the plaintiff-Ram Parkash.

The third suit was instituted by Ram Parkash on 8.11.1986 bearing civi I suit No. 676 of 1986 for permanent injunction against Om Parkash and his brother and sisters and mother relating to one more sale deed dated 5.8.1981 and in that case also Tulsa Rarn executed an agreement dated 23.7.1983 for correction of his share as 947/2027 instead of 147/2027 share and share of Tulsa Ram was to be corrected from 1600/2027 to 800/2027.

When these 3 suits were pending in the trial Court, joint applicant was moved. The Civil Court on the basis of that application, referred the matter to 3 Arbitrators, namely, Bhagat Roshan Lal, Haqim Rai and Satya Devi Chaudhary whose awards unan imous or by majority will be binding on the parties. To the agreement and to the statements for referring the matter to the Arbitrators, some of the parties were signatories and on behalf of others the counsel signed the application as well as the statement. Thereafter, the award dated 4.1.1989 was filed in the Court on 5.1.1989. On 3.2.1989, the defendant Om Parkash filed the objections to the award dated 4.1.1989. Challenging the validity of the award on the ground that Arbitrators had misconducted themselves as the award was given by them much after the expiry of the period. The Arbitrators were required to ask the patties to file their claims but they did not give any opportunity to the parties. The award and the alleged agreement dated 23.7.1983 were required to be registered. Award was not filed by majority as the same had been signed only by one or two Arbitrators. Dr. Satyadev was not joined. Therefore, the award given by the two Arbitrators cannot be held to be award by majority.

The objector pleaded that in view of these objections and that the Arbitrators have misconducted the proceeding and the award in question was required to be set aside and that it may not be made the rule of the Court. The plaintiff Ram Parkash filed reply to the objections in each of these cases submitting that the award given by the Arbitrators was perfectly legal and valid; Arbitrators had not misconducted themselves; the dale of submission of the award has been extended from time to time by the orders of the Court and that the Arbitrator gave the time to both the parties to submit their claims and they were given ample opportunities to lead all evidence and that the award in a pending case needs no registration. Since agreement dated 23.7.1983 does not create any right and that was yet to be implemented on the basis of the necessary rectification was got made in the 3 sale deeds. So agreement dated 23.7.1983 also does not require registration. The award given by the two Arbitrators Bhagat Ram and Haqim Rai was pleaded by the plaintiff to be an award by the majority inasmuch as the third Arbitrator Dr. Satyadev Chaudhary who participated in the award proceedings refused to sign the award.

Vide judgement dated 25.2.1992, the objections of the objectors were dismissed and the award dated 4.1.1989 was made rule of the Court. Not satisfied with the judgment and decree of the trial Court, three appeals were filed namely. CAs 92,93 and 94 of 1992 titled as Om Parkash v. Ram Parkash and others, Om Parkash v. Ram Parkash and Om Parkash and others v. Ram Parkash respectively. The learned Court of Additional District Judge, Sonepat. vide judgment and decree dated 5.4.1994 dismissed all the 3 appeals. The appellants were not satisfied with the decision of the Courts below. Hence these revisions,

1 have heard Mr. Gopi Chand, Advocate, for the petitioners and Mr. Vinod Sharma, Advocate, for the respondents and with their assistance I have gone through the record of the case.

I am of the considered opinion that these revisions deserve to be accepted and the decisions of the Courts below require reversal on account of technical reasons. Before I give my own reasons and reverse for reversal, it will be appropriate for me to reproduce paras 10 to 17 of the judgment of the first appellate Court :-

Arguments in me three appeals were heard for a number of days and when the arguments had been concluded, the learned counsel representing the appellants filed written arguments reply of which had to be obtained from the opposite side. It also requires mention that during arguments it not concerned with the (sic) had been brought to my notice by the counsel for the respondent Ram Parkash that the proceedings had been recorded by the arbitrators and photo copies were given to the contesting parties and one such photo was shown to the Court by Shri J,C, Bhagat Advocate representing Ram Parkash plaintiff- respondent. In order to appreciate the arguments properly and in order to avoid remand of the case to the trial Court I thought it expedient that notice be given to arbitrators Sarvshri Bhagat Roshan Lal and Hakim Rai to produce in the appellate Court record of the proceedings conducted by them in arbitration matters between the parties and in view of that order of mine passed on 9.10.1993 the record of arbitration proceedings was got produced in the Court. Simply for the purpose of proper appreciation of arguments. When the proceedings of the arbi- trators recorded by them were received in this Court, defendant-appellant Om Parkash filed objections on 16.11.1983 against the proceedings of the arbitrators. We are not concerned with the details of objections filed by said Om Parkash. Suffice it to say that plaintiff- respondent Ram Parkash contested those objec-tions against the award and the main objection taken by him is that objections at this belated stage are barred by limitation because the award had been filed in the trial Court on 5.1.1989 and filing of objections on 16.11.1983 after about 5 years is hopelessly time barred because objections can be filed only within 30 days of the award having been filed in the Court.

I have heard the counsel for the parties not only on the merits of the appeals but also regarding objections against the award of the Arbitrators many many years after the award having been filed in the Court.

Coming to the objections against the award filed on 16,11.1993. when the award had already been filed in Court on 5.1.1989 and that award was made rule of the Court by the learned Sub Judge as far back as on 25.2.1992, objections against that award filed in November, 1993, are hopelessly barred by limitation and the objections cannot be taken into consideration. So the objections against the award filed by objector Om Parkash are dismissed as having no force, being time barred.

Coming to the objections regarding the judgement of the trial Court the first objection is that the arbitrators were appointed on 23.4.1988 but the award was filed in Court on 5.1.1989 i.e. beyond 4 months and on that account the award in each of the three suits cannot be made a rule of the Court. An effort has been made to draw strength from State of Punjab V. Hardayal AIR 1985 SC 929, wherein it was held that the arbitrator cannot extend the prescribed time limit beyond 4 months and it is the Court alone which can extend such lime. I am afraid that this ruling cannot help the defendant- appellants in any way because in the present case time beyond 4 months was not extended by the Arbitrators but with mutual consent of the parties or their counsel the trial Court went on giving adjournments in the wail of the award. In this way. the two parties were consenting parties to the extension of time. Had any of the parties been not a consenting party to such implied extension of time in giving the award, that party could very easily tell the Court that it had objection in such adjournments and no extension should be given in wait of award. Moreover, in view of what has been held in S.D. Ghai and Co. Vs. Punjabi University, Patiala, , Court can be requested even orally to enlarge the time for making the award. If has also been argued on behalf of the plaintiff-respondent that where the parties have been willing by taking part in arbitration proceedings even after expiry of the prescribed time limit of 4 months, extension of time can be subsequently granted. FCl v. Kartar Kanr and another 1991 (1) L J R 295, a ruling of our own High Court, can be read with advantage in this regard. In that case reference to arbitrator was made in 1978 and award was given in 1982. Parties continuously and willingly participated in the proceedings and each party took a chance for award being in his favour. No serious objection to the conduct of impartiality of arbitrator was raised by any party. It was held by our Hon''ble High Court that it was a fit case for extension of time and that award was to be deemed to have been given in time in view of extension of lime. So, the objection that since the award was not given within 4 months by the arbitrators and on that account it is invalid has no force and it is over- ruled.

The next objection of defendant-appellants is regarding registration of the award dated 4.1.1989 or the agreement dated 23.7.1983 executed by Tulsa Ram deceased in his life time, the contention of the counsel for the appellants is that since Immovable property more than Rs. 100/- is involved so the award requires registration. I am afraid that this objection has also no force because the award was made by the arbitrators in reference by Court in pending proceedings and such an award is not compulsorily registrable. Reliance can be placed on Attarsing and Others Vs. Nanded Sikh Gurudwara Sach Khand Shri Huzur Apachalnagar Saheb Board, , wherein it was held that such an award is not compulsorily registrable because such award, unless made a decree of Court, is incapable of operating or purporting to create, declare, assign etc. any right in or to an immovable property as indicated by Section 16(2) of the Arbitration Act, 1940. Similar is the fate of objection raised by the appellants regarding the agreement dated 23.7.1983 because that agreement also did not per se create or extinguish any right in the suit land. So, this objection on behalf of the appellants regarding registration of the award or agreement is overruled, and finding of the trial Court in this regard is affirmed.

The next objection raised is that the award given by two of the arbitrators out of the 3 cannot be considered to be a majority award inasmuch as Dr. Satyadev the third arbitrator, did not join the proceedings and did not sign the award. This objection is also not impregnated with force. Proceedings recorded by the Arbitrators have been requisitioned from them for the sake of facility and for appreciating the arguments of the parties. Proceedings were recorded by the three arbitrators but unfortunately the award was not signed by all the three arbitrators and one of them Dr. Satyadev for one reason or the other did not think it proper to sign the award but this does not mean that the award given by two out of the three arbitrators willingly and voluntarily appointed by the parties cannot be held to be majority award. A similar situation came up for consideration in Amar Nath Vs. Uggar Sen and Others, . In that case parties had agreed to abide by decision of majority of Arbitrators and one of the Arbitrators refused to prepare award and sign that at the instance of one part. The award was held not invalid for want of signatures of one of the arbitrators. It was further observed that at the most it was a mere irregularity which did not vitiate the award of the majority.

It has further been argued on behalf of the appellants that Tulsa Ram died leaving a number of heirs all of whom were not parties in civil suit No. 101 of 1986 and simply because Om Parkash, one of the heirs of Tulsa Ram agreed to appoint arbitrators it does not mean that other heirs of Tulsa Ram also agreed to appoint arbitrators. It has further been argued that in the other defendants other than Om Parkash were not signatories to the application and the statement made in Court for appointment of arbitrators. The learned counsel for the appellants has further argued that on that account the reference to arbitrators is without any basis and consequently the award given by the arbitrators is meaningless and without authority. I am afraid that here again the argument is devoid offeree. Applications for appointing arbitrators and the statements made in Court in the three cases were signed by some of the defendants and by the counsel representing all the defendants. At no stage in civil suit No. 101 of 1986 heirs of Tulsa Ram other than Om Parkash, came forward to raise objection regarding the award. In other suits they were represented by a counsel. It has been held in Hart Shanker and another v. Mr. Am-raoti and another AIR 1944 Lah 280 that a pleader need not obtain express authority from client before referring the case to arbitration and that he has an implied authority to refer the case to arbitration in this way, when the counsel representing the heirs of Tulsa Ram other than Om Parkash signed the statement for referring the dispute to arbitration along with one of the heirs Om Parkash, reference to arbitrators cannot be held to be without authority. So this objection is also overruled.

One more objection has been raised not only in the grounds of appeal but at the time of arguments in the appeal also and that objection is that the claim put forth by Ram Parkash in the suits clearly falls in the definition of Benami transaction within the meaning of Act No. 45 of 19S8 and since a man cannot acquire or hold property Benami in the name of another person, so the suits were not maintainable. I ant afraid that this objection has also no force because this is not at all the case of Ram Parakash in any of the suits that he was the real owner of 947/2027 share and 800/2027 share was held by Tulsa Ram Benami on his behalf. His case is that he purchased 947/2027 share but through error his share was entered as 147/2027 and that of Tulsa Ram as 1600/2027 instead of 800/2027. The prayer of the plaintiff was for rectification in the sale deeds. There are two methods of rectification. One is through subsequent sale deed which is required to be got registered in case the value of the Immovable property exceeds Rs. 100/-. The other method is to bring a suit for rectification. In Bidyadhar Mohanty and Another Vs. Ananta Hota and Another, , it has been held that a suit for declaration of title and possession of property conveyed under sale deed on the allegations that property was wrongly described due to fraud or mistake is maintainable and Court has power to grant relief without driving the plaintiff to file a suit for rectification of sale deed. So, in view of this, this objection has also no force and it is over-ruled."

As I have just said above. 3 suits were instituted i.e. Civil Suits Nos. 101. 389 and 676 of 1986. First of all, I may refer to the parties of Suit No. 389. The suit was instituted by Ram Parkash against Om Parkash and others. The record of the trial Court shows that the suit was pending. Plaintiff Ram Parkash and defendant No. 1 Om Parkash made an application for referring the matter to the Arbitrators and it was agreed upon by these two persons only that let the matter be referred to the 3 Arbitrators whose unanimous decision would be binding upon the decision of the majority. All the three awards shall be binding between the parties. There is no valid consent on behalf of other 4 defendants. From the side of the plaintiff, his lawyer signed and from the side of the defendant, only Om Parkash (defendant himself) and his counsel Mr. J.P. Jain signed. The record of the trial Court further shows that there is one memo of appearance of Mr. J.P. Jain, Advocate, on behalf of defendant No. 5 but there is no power of attorney in favour of Mr. J.P. Jain. Resultantly, it has to be held that the agreement, if any, was between Ram Parkash and Om Parkash. Om Parkash had no power of attorney in his favour binding the interest of his co-defendants. Even the matter of defendant No. 5 had no validity to refer it to the Arbitrators. Even the award of the Arbitrators shows that they did not give any notice to the other defendants 2, 3,4 and 5 in the arbitration proceedings. When the very basis of the agreement to refer the matter to the Arbitrator is invalid, any award given by the Arbitrators on Ihe basis of invalid reference has to go. Since there is only one award, it has a direct bearing on the decision of other 2 suits i.e. Suit Nos. 676 and 101 of 1986. 1 am not in a position to make the award separable because in all the 3 suits, the point was the same as to whether the agreement which was executed by Tulsa Ram was a valid one or not and what are the rights, title and interests of Tulsa Ram in the land in dispute. The learned counsel for the respondent Mr. Vinod Sharma submitted that Om Parkash was signatory to the agreement and the rights of other co-defendants are similar with that of Om Parkash, therefore, the reference is valid. I am not in a position to subscribe the arguments of the learned counsel for the respondent for the simple reason that Om Parkash was never in a position to join the interest of others. Each party to the suit was invidually entitled to get a separate notice from the Arbitrator. It has been held in Firm Khetu Ram Bashamber Dass Vs. Kashmiri Lal Rattan Lal, that if an application is moved only by some of the interested parties, order of reference and award made on such reference is void ab initio and cannot be validated by the subsequent acquiescence or rectification. This judgement is fully applicable to the facts in hand. Similar view was taken in Deep Narain Singh v. Dhaneshwari AIR I960 Pat 201. Further, my view is supported by Jagannath Kapoor and Another Vs. Premier Credit and Instalment Corporation (P) Ltd., Yet my attention was invited to Sukalu Ram Gond Vs. State of M.P. and Others, . This judgement can also be taken for the advantage of the petitioners. Faced with this difficulty, the learned counsel for the respondents relies upon S.D. Ghai and Co. Vs. Punjabi University, Patiala, and Chandrakant Maganlal Patel and Another Vs. Ishwarlal Ghelabhai Choksey and Others, . In all the judgements, the point for determination is whether there was a valid reference or not. 1 have already said by giving the history of Civil Suit No. 389 of 1986 that neither Om Parkash nor J.P. Jain Advocate could join for reference of defendants 2 to 5. Similarly, in other two suits, the power of attorney of Mr. J.P. Jain Advocate does not give him the power to refer the matter to the Arbitrator. Thus, when very foundations of the reference are bad, the award cannot survive and has to go and once the Arbitrators have taken jurisdiction, which was never vested in them, it amount to misconduct on their pan,

In this view of the matter, I allow all the 3 revisions, set aside the judgments of the Courts below and remand the case to the trial Court with the directions to proceed with the suits as if from the stage when the applications were moved for making references to the Arbitrators by assuming as if there was no arbitration agreement between the parties. The findings should be given after taking into account the written statements and after framing proper issues, I may also make it clear that there will be no bar on the part of the Court if all parties to the suit agree for referring the matter to the Arbitrator afresh. In such a situation, it will always be open to the Court to again refer the matter to the Arbitrator. Till today the decision is that there was no valid arbitration. The Arbitrators have assumed the jurisdiction which was never vested in them which amounts to misconduct.

Resultantly, these 3 revisions are allowed. Impugned judgments are set aside. Parties are directed to appear before the trial Court and directions are also given to the trial Court to expedite the suit and try to dispose of the same within one year because the suits arc of the year 1986. The Registry is directed to send the records of the trial Court forthwith.

Revisions allowed.