Nanha Prasad Singh and Another vs Jagdambi Singh

Dhavle, J.—This is an application in revision out of a Small Cause Court suit for the recovery of Rs. 236 on the ground that this was money paid by the plaintiff for the settlement of 14 bighas 15 kathas of land which however was actually not made over to him by the defendant''s father, and son, members of a joint Hindu Mitakshara family.

The learned advocate for the defendants, who are the petitioners before me, points out that on 29th November 1937, there was a joint petition filed in the lower Court for a reference of the dispute to arbitration, as a result of which 7th January 1938 was fixed as the date for the arbitrators to file their award. On 7th January there was a petition filed by the plaintiff praying for superseding the order of reference on the ground that two of the three arbitrators had since been discovered by him to be indebted to the defendants. The order of reference was therefore, as the dower Court puts it, superseded and the trial proceeded. The learned advocate has challenged the propriety of this order and pointed out that two of the three arbitrators had actually sent in their award on the previous date, while the third who had the papers had returned them, saying that there could be no agreement among them. Reference is made to the well-known case in Pestonjee Nussurwanjee v. Manockjee & Co. (1867) 12 M.I.A. 112 for the principle that an agreement referred to arbitration cannot be revoked by any party without good cause.

But that was a case where the matter had been referred to arbitration by agreement between the parties without the intervention of a Court of justice and in any event it is not disputed in the present case that two of the three arbitrators were in fact indebted to the defendants. What is urged is that they were appointed arbitrators by both the parties with full knowledge of the fact of their indebtedness to the defendants. It is difficult to accept this assertion as a correct statement of facts in view of the course taken by the trial subsequently.

There does not appear to have been any protest against the order of the lower Court superseding the award. On 28th January, defendants filed a petition for time to summon his witnesses, and on 4th February, defendant 2, son of defendant 1, actually accepted the written statement filed by his father.

It is obvious therefore that the parties agreed in having the reference superseded, though it may be that some of the proceedings may not have been absolutely in order. I do not think that it can be said that this is a case where the lower Court had no jurisdiction to proceed with the trial at all. The plaint was there, and then came this reference to arbitration which the parties substantially seem to have concurred in getting superseded, followed by the regular trial. That the plaintiff paid Rupees 236 for the settlement of the land and that the land was not actually delivered to him by the defendants are findings of fact which have not been assailed. The learned advocate endeavoured to show that the paper showing the settlement was not properly stamp, ed and should not have been admitted in evidence, but Section 36, Stamp Act, is against this contention.

The only other point raised by the learned advocate is the award of interest by way of damages made by the lower Court. A recent Privy Council decision has shown that such an award cannot be made, and the learned advocate for the opposite party does not contest this.

The result is that this application fails substantially and only succeeds to the extent that the interest allowed by the lower Court by way of damages must be omitted from the decree obtained by the opposite party.