Ram Narayan Rai and Others vs Lalji Rai and Others

Fazl Ali, J.—The circumstances which have given rise to this application are briefly these: The opposite party Nos. 1 to 4 brought a suit for partition and setting aside a compromise against the petitioners and by the consent of the parties the subject matter of the suit was referred to the arbitration of nine persons.

It was stated in the petition filed by the parties asking the Court to refer the matter to arbitration, that the opinion of the majority of the arbitrators would prevail. The record of the case was sent by the Court to the arbitrators through one Sahadeo Rai who is said to have been made the sir punch in the case. The order sheet of the case shows that on 16th April 1928 Sahadeo Rai returned the papers of the case with the report that only five of the punchas had met together and decided the case against the plaintiff and they had made over the award to one Babu Ram Tewari for obtaining the signatures of the other arbitrators but Babu Ram had not returned the papers since. On the same day it appears that another paper was received by post in Court. "This paper purported to be an award in the case in favour of the plaintiffs and was signed by seven of the arbitrators, "the signatures appearing on the reverse ''side of the paper namely, on the side on which there was.'' no writing. On 21st April 1928 the defendants filed an objection to the award and repudiated it as ''feeing illegal and fraudulent. The learned ''Subordinate Judge held an enquiry into the matter and in the course of the enquiry four of the arbitrators including Sahadeo Rai appeared and supported the case of the defendant that no such award had really bean given as had been recorded by the Subordinate Judge. Three of the arbitrators, however, came and supported the case of the plaintiffs that the award in question had really been given by all the nine arbitrators. The other two arbitrators were neither examined by the parties nor by the Court. It wag urged on behalf of the defendant that a mere look at the piper which purported to be the award arid a reference to the manner in which this alleged award had been signed by the arbitrators was sufficient to show that it was a most suspicious document.

The learned Subordinate Judge, however observed that.

on mere suspicion from the look of the paper it would not be safe to hold that the award was fraudulent or had been surreptitiously obtained.

He also came to the finding that the defendants had failed to prove that the award was fraudulent and therefore disallowed their objection and ordered the award to be filed and the suit was disposed of accordingly. The petitioners then came up to this Court in revision and obtained a rule.

Now, it is contended before me by the learned advocate for the petitioners that the award is illegal on the face of it because it was admittedly not signed by all the arbitrators. The learned advocate refers me to the mandatory provisions of para. 10, Schedule 2, Civil P.C., which says that the persons who make the award shall sign it. The learned advocate also refers me to a number of decisions in support of his proposition, the latest being the decision in the case of Ramdas Sahu and Others Vs. Judagi Lohar and Others, . In that case it was held by Kulwant Sahay, J, that there being a distinct statutory provision that the award must be signed by the persons who made it, the want of signatures of some of the arbitrators from the award entirely invalidated the award. The following observations made by the learned Judge in that case may be quoted here:

There is a distinct statutory provision that the award must be signed by the persons who made it. The learned Subordinate Judge was of opinion that the writing out of the award was a ministerial act and, if all the arbitrators agreed in the decision of the points referred to them and the formal award was written out in the absence of one or other of the arbitrators and it was not signed by some of them that did not invalidate the award.

In my opinion the writing out of the award cannot be treated to be a ministerial act. The award embodies the decision to which the arbitrators came and the writing of the decision in a case cannot be treated to be a ministerial act. Even if the writing out of the award be a ministerial act, it does not become an award until it is signed by the arbitrators. It was open to them to dhange their mind upon further consideration when the written award was placed before them for signature. The provisions of para. 10, Schedule 2, are based on sound judicial principles. Instances are not wanting where Judges have changed their minds when judgments dictated by them are placed before them for signature.

It is, however, contended by the learned advocate for the opposite party that this decision cannot prevail against or at any rate it is distinguishable from the decision of a Division Bench of this Court in Ram Narain Ram v. Pati Ram Tewari [1916] 1 Pat. L.J. 90 in which it was held that where the parties had agreed to abide by the decision of the majority of the arbitrators, an award could not be set aside on the ground that it had not been signed by the minority. The learned advocate for the opposite party also refers me to the decisions in Naser Ali v. Mt. Tinoo Dossia 6 W.R. 95 and Dandekar v. Dandekars [1881] 6 Bom. 663 in support of his contention that the failure of all the arbitrators to sign the award will not be fatal where it has been agreed upon between the parties that the decisions of the majority will prevail and the award has been1 signed by the majority of the arbitrators. Some of these decisions have been referred to by Sahay, J., in the case to which I have already referred and it has been- pointed out that at least in the case of Dandekar v. Dandekars [1881] 6 Bom. 663 and in the case of Ram Narain Ram v. Pati Ram Tewari [1916] 1 Pat. L.J. 90, the reports do not show that any reference was made before the learned Judges to the provisions of Section 516 of Act 10 of 1877 (the old Civil Procedure Code) or para. 10, Schedule 2, of the present Civil P.C. Assuming however, that the point of law was correctly decided in those cases there is a further point which arises in this case and which in my opinion should have been investigated by the lower Court. Para. 10 Schedule 2, not only provides that the award shall be signed by the arbitrators but it further provides that the arbitrators shall cause it to be filed in Court. In order therefore that the award might be acted upon by the Court it was necessary that it should have been properly placed before the Court.

In this particular case the alleged award reached the Court under mysterious circumstances and none of the arbitrators takes the responsibility for saying as to who caused the award to be sent to Court. Sabadeo Rai who was admittedly the sir punch and to whom the records of the case had been sent for arbitration and who on the very day that the said award is said to have reached the Court had returned the records to the Court, disclaims all responsibility for the award or for having caused it to be sent to Court. It has not been explained anywhere as to why the award should not have come to Court through Sahadeo Rai who, as we have already seen, submitted the records to the Court with a certain letter containing a different version altogether as to the circumstances of the arbitration and as to the nature of the decision arrived at by the majority It was therefore incumbent on the lower Court to have come to a decision in view of these circumstances of the case, that it was the arbitrators who caused the award to be filed in Court. This the learned Subordinate Judge has not done: and in my opinion he was not competent to act upon the award until he was satisfied that the award had properly been placed before him by the arbitrators and by no other persons.

In this view of the case I would allow this application with costs, set aside the order of the learned Subordinate Judge against which this application is directed and direct him to enquire into the question as to whether it was the arbitrators, who caused the award to be filed in, Court. The hearing fee is assessed at, two gold mohurs.