Thoongan vs Chinna Alagu Kudumban

Jackson, J.—The defendant in S. C. No. 625 of 1924 on the file of the District Munsif''s Court of Satur seeks to revise his judgment and

decree. This suit was originally referred to arbitration and upon one of the two arbitrators reporting that his colleague was fabricating false records

the learned district munsif recalled the suit from the file of the arbitrators and proceeded with it. The point taken in this revision petition is that he

had no jurisdiction to do so. There is no provision in Sch. 2 of the code for a revocation at this stage, and as observed by the Judicial Committee in

Sadiq Husain v. Nazir Begum [1911] 33 All. 743 all that the Courts in India can do is to take advantage of the sections of the code which enable

them to keep the machinery of arbitration going. A Court acting under Sch. 2 can only revoke an arbitration in the cases specified in paras. 5, 8

and 15. No doubt, in the present case, if the matter had reached an award, para. 15 might have been applicable, It is urged on behalf of the

counter-petitioner that although the lower Court had no authority to revoke this case, nevertheless the fact that the defendant allowed himself to be

examined in the subsequent proceeding amounts to a waiver. Even if the defendant had in terms agreed to the procedure of the learned district

munsif, I am doubtful whether that alone would have given it validity. But in the present case I see no clear evidence of such agreement. The

defendant began by protesting that the evidence alleged to have been wrongfully recorded by the arbitrator should be evidence in the suit, and

when that plea was rejected, no doubt, he proceeded to answer questions in his examination; but I do not find that he ever consented to the

procedure which the district munsif set up. In these circumstances the decree of the lower Court must be cancelled and the case remanded for

retrial according to law from the stage at which the arbitrator reported the alleged misbehaviour of his colleague. Costs to be costs in the suit.