Qazi Gh. Nabi vs Qazi Jalal-ud-din and Others

Hakim Imtiyaaz Hussain, J.—This appeal is directed against the order dated 29.9.2003 passed by Ist. Addl. District Judge, Srinagar in File

No. 104 Numbri of 1981 titled Qazi Abdul Hamid v. Qazi Gh. Nabi and Ors. by means of which the learned Addl. District Judge, Srinagar (the

trial court) has refused to set aside or interfere with the award passed by an Arbitrator appointed by the court in the case. The facts relevant for the

disposal of this appeal are as under:

Qazi Gh. Nabi, Qazi Jalal-ud-din, Qazi Rashid-ud-din, Qazi Siraj-ud-din and Qazi Abdul Hamid are real brothers being sons of one Qazi

Ataullah R/o Baghat Barzullah, Srinagar. They possess property in the shape of land and houses at Baghat-e-Barzullah and Mughal Mohalla,

Chattabal over which they are engaged in litigation with each other since the year 1966. Mst. Aisha was their mother who also had a share in the

said property. On 16.07.1966 all the five brothers""filed a suit for declaration against their mother Mst. Aisha in respect of 3 Kanals and 10 Marias

of land situated at Baghat-e- Barzulla, Tehsil Budgam. This suit was, however, later compromised by the parties under which all the five brothers

took 14 Marias each in the said land. Ultimately, the case was disposed of and a decree to that effect was passed by the court of Ist. Addl.

Munsiff, Srinagar on 20.7.1966. Though the matter ended in compromise but the litigation between the parties over the property did not stop. In

the year 1974 a suit for partition in respect of property situated at Baghat Barzulla, was filed by Qazi Jalal-ud-din against his other brothers in the

court of Sub Judge, Chief Judicial Magistrate, Srinagar on 14,3.1974 which was registered as COS No. 147 of 1974. In this case also the parties

entered into a compromise in which they admitted that the property was joint. Ultimately a consent decree was passed by the court on 17.4.1974.

The court ordered as under:-

Compromise was produced today and the statements of plaintiff- defendant Nos. 1 to 4 and counsel for defendant No. 5 were recorded. The site

plans showing the shares of the parties were filed alongwith the compromise, so preliminary decree for partition need not be passed in this case.

The parties agree that they have taken possession of their specific shares allotted to them after partition. Therefore, final decree for partition in

terms of the compromise is passed. The compromise deed and plans attached therewith shall form part of the decree. Parties are left to bare their

own costs.

On 30.08.1978, however, Qazi Gh. Nabi challenged the decree passed by Sub Judge, Chief Judicial Magistrate as also the compromise deed

filed before the court by means of a suit for declaration and perpetual injunction on the ground that the same was ineffective and inoperative. The

suit was transferred to the court of City Judge, Srinagar where it came to be registered as COS 71 of 30.8.1978. Meanwhile, Qazi Abdul Hamid

filed an application for execution before the court of Sub Judge, Chief Judicial Magistrate in respect of the decree passed by the court in earlier

suit. Qazi Gh. Nabi resisted the application on the ground that he had already filed a suit for cancellation of the decree which was pending before

the court of City Judge, Srinagar, as such the court could not proceed with the execution matter. The court, however, found that since no stay had

been granted by the court of City Judge, Srinagar and that the court was not a party to the civil proceedings, it was his duty to execute the decree

passed by it. The court therefore, appointed Sh. Sanaullah Dar, Advocate to effect actual partition and to give separate possession to the parties in

accordance with the terms of the decree after visiting the spot. This order was challenged by Qazi Gh. Nabi before this Court in an appeal as Civil

Miscellaneous Ist. Appeal No. 50 of 1978 titled Qazi Gh. Nabi v. Qazi Jalal-ud-din and Ors. The main ground taken by Qazi Gh. Nabi in the said

appeal was that the court of Sub Judge, Chief Judicial Magistrate, Srinagar was not competent to pass the decree on the basis of compromise in

the suit as it had no pecuniary jurisdiction to try the suit. It was urged before the court that the valuation of the suit was Rs. 15,000/- and the Sub

Judge, Chief Judicial Magistrate had no pecuniary jurisdiction to try the suit of this valuation, as such, the compromise arrived at between the

parties and the decree passed in terms of the compromise are void for want of jurisdiction. The appeal was heard by the then Chief Justice of this

Court (Hon'ble Mr. Justice Mian Jalal-ud-din) who by means of order dated 31.5.1971 allowed the appeal and set aside the order of the

executing court with the following observations:

It is true that the appellant did not take up the plea of jurisdiction before the executing court. He only mentioned in the objections that the decree

was void and invalid, without spelling out as to how the decree was void. But since the question of jurisdiction can be taken up at any stage of the

proceedings and for this the court has not to travel beyond the record, I think that this is a point on which the court has to address itself and give a

finding even in execution proceedings court that the decree sought to be executed is without jurisdiction.

I will, therefore, ask the court below to go into the question of jurisdiction and record its finding thereon. If, however, the court is of the opinion

that the decree does not suffer for want of jurisdiction, in that case the court will be justified in appointing a Commissioner who will go on spot and

partition the property as mentioned in clause (f) of the compromise deed. The request of the respondent decree-holder that a Commissioner be

appointed for partitioning the entire property metes and bounds is not entertainable in view of the fact that the compromise has already been

arrived at between the parties other than the one mentioned in clause (f) in the deed of compromise has been effected. To this extent the decree is

final and conclusive and no order for partition is required to be passed in so far as those properties are concerned. But, surely in so far as property

shown in clause (f) is concerned it is in joint ownership of all the parties and after passing of the decree no partition has taken place in respect of

that property. This request of the respondents decree-holders does not therefore appear to be unreasonable. The order of appointment of

Commissioner for effecting partition will, however, be passed by the executing court after hearing the parties and after deciding the question of

jurisdiction as raised before me.

With these observations the appeal is allowed and the order of the executing court is set aside to the extent as indicated above.

Meanwhile, the case pending before the Sub Judge, Chief Judicial Magistrate, came to be transferred to the court of City Judge, Srinagar but

the earlier suit filed by Qazi Gh. Nabi before the court of City Judge, Srinagar got dismissed for non-prosecution. Later the court of City Judge,

Srinagar found that the court of Sub Judge, Chief Judicial Magistrate had no pecuniary jurisdiction to hear the suit as such the judgment and decree

was without jurisdiction.

On 12.6.1981 Qazi Abdul Hamid filed another suit for partition against his brothers as well as his mother Mst. Aisha Begum before this Court

which was registered as suit No. 104 of 1981. Qazi Abdul Hamid alleged that the parties had the following property at Baghat-e-Barzulla and

Mughal Moallah, Chattabal, Sringar which was joint between them:

a. In Baghati Barzulla Tehsil Budgam a house three storied with an attic on the top, facing south with corrugated iron roofed top with a length and

breadth of 42'x31' and connected annex 24'zxl6'.

6""alongwith land under survey Nos. 1046, 158, 1479 and 1481 underneath and appurtenant with the following measurements;

i. In the north 310' Bounded in North

of Ghulam Rasool Wani. by house

ii. In the south 327' In the South by house

of Ahad Shah. and land

iii. In the West 81' West general road

iv. In the East 92' East by land of

Ghulam Mohd. Andrabi

b. Another house is three storeyed with corrugated iron roof having four windows and one door in the ground floor and six windows in the Ist and

2nd floor each with length and breadth of 26' x 20' total area the land underneath and appurtenant situated at Mughal Mohalla, Bagyas, Chattabal.

It was pleaded by Qazi Abdul Hamid that on the joint land at Baghat-e-Barzullah Qazi Siraj-ud-din and Qazi Bashir ud-din constructed houses

from their own sources. Qazi Gh. Nabi also constructed a cow shed on the said joint land from his own sources. The land underneath and

appurtenant thereto is the joint property of the parties. The land underneath buildings constructed by the defendant Nos. 1, 3 and 4 will fall in the

share of these defendants after partition of the joint property by the court and will be deducted from their shares. The said plaintiff therefore,

prayed to the court for ordering the partition of houses and land mentioned above by meets and bounds and prayed that the parties be put in

possession of their respective shares.

While other defendants including the mother admitted the plaint of Qazi Abdul Hamid, defendants Qazi Gh. Nabi and Qazi Siraj-ud-din in their

separate written statement alleged that the house had been constructed by Qazi Gh. Nabi and that the land under the house is not joint but is

exclusively owned and possessed by him.

This court of 27.6.1986 framed following issues in the case:-

Whether the suit property as mentioned in para 2 of the plaint is joint between the parties? OPP

In case issue No. 1 is proved in affirmative, to what share each party is entitled to in the suit property? OPP

Whether the admission by defendants 1 and 4 in the compromise deed presented by the parties before Sub Judge (CJM) Sgr. On the basis

whereof compromise decree dt. 17.4.74 was passed in civil suit No. 147 of 1974 is binding on them and they are estopped from disputing the title

and share of the parties specified therein respecting suit property? OPP

Whether the compromise arrived at in the court of CJM (Sub Judge) Sgr on the basis of which a compromise deed dt. 17.4.1974 was passed,

was an outcome of fraud and misrepresentation practiced on defdt. No. 1. OPD

Has any partition taken place between the parties pursuant to the compromise decree dt. 20.7.66 passed by Ist. Addl. Munsiff Sgr. In the civil

suit declaration No. 67 of 66 titled Qazi Gh. Nabi and Ors. v. Mst. Aisha Bano. If so, what is its effect on the present suit? OPD

Later, the case was transferred to the court of District Judge, Budgam before whom an application was filed by Qazi Abdul Hamid with the

prayer that the dispute may be referred to an Arbitrator. The defendants counsel did not object and the court found that since the parties to dispute

are real brothers and that the counsels for the parties have agreed for appointment of an Arbitrator it accordingly appointed Mr. Qasim Sahib,

President Bar Association Budgam, as the sole arbitrator in the matter to consider the whole controversy and resolve it under arbitration

proceedings. The court directed as under:

Application has been submitted by the counsel for the plaintiff requesting, that the dispute may be referred to an Arbitrator, in view of the fact, that

the parties to the dispute are real brothers and as such close relations. The defendants counsel Mr. M. Ashraf has no objection to the request to

appoint an arbitrator for settlement of the present controversy between the parties who are real brothers. Therefore, in view of the agreed

submissions of the Ld. Counsel for the parties, the request for appointment of arbitrator is allowed. As agreed by the Ld. Counsel for the parties,

Mr. Qasim Sahib, President Bar Association Budgam, is appointed as a sole arbitrator, to consider the present controversy and resolve it under

Arbitration proceedings. He shall be at liberty to give full opportunities to the parties to produce all oral and documentary evidence in whatever

nature they desire and is relevant for settled the controversy within a reasonable time. The parties may also be given right to address to their

satisfaction. The award may be submitted within a period of two months time. Arbitrator can if need arises request for extension of time. The

remuneration of arbitrator is fixed at Rs. 4000/- in the first instance to be shared by the parties in equal amount. The relevant record shall be made

available to arbitrator as and when required by him. Put up on 16th September, 1999.

The said Arbitrator entered upon the reference and after taking the requisite proceedings filed his award on 7.3.2000. The Arbitrator found

that the property in dispute was joint and unpartitioned between the parties and that they are entitled to share it equally. During the proceedings

mother of the parties namely Mst. Aisha had expired due to which her share was also distributed in between the remaining parties i.e. the sons of

Mst. Aisha Begum. As regards the house and land at Mughal Mohalla, Chattabal, Srinagar the Arbitrator found that the share of Mst. Aisha

Begum will devolve on the parties in equal shares. The Arbitrator mainly relied upon the compromise arrived at between the parties before the

court of Sub Judge, Chief Judicial Magistrate, a reference of which has been made above.

Qazi Gh. Nabi did not accept the findings of the Arbitrator and filed his objections to the same before the trial court. Meanwhile, the case got

transferred to the court of Additional District Judge, Srinagar, who on consideration of the objections of Qazi Gh. Nabi found that no ground was

made out for setting aside or for remittance of the arbitral award. The court, therefore, held that the arbitral award is final and binding on the parties

and shall be enforceable as decree of the court as ordained by Section 36 of the Act. The trial court observed as under:-

Thoughtfully perused the award which is speaking one and is quite justified. The two houses one situated at Baghat-e-Barzulla another situated at

Moughal Mohalla, Chattabal, have been thread-bear discussed by the arbitrator and the arbitrator thereafter has reached to a definite conclusion,

whereby, he has opined that the house including land underneath and appurtenant thereto situated at Baghat-e-Barzalla is joint and un-partitioned

between the parties i.e. plaintiff and defendants 1-4.

Out of the land under-neath and appurtenant there-to situated at Moughal Mohalla Chattabal, parties have been held entitled to the extent of share

out of the share of defendant No. 5 who is the mother of the parties and is now dead. Regarding this house during the arbitral proceedings plaintiff

and defendants 3 and 4 had not claimed any share as the same had been given to defendant No. 1,2 and 5. Now since defendant No. 5 is dead

being mother of the parties, her share has to devolve on the parties equally that is why Ld. Arbitrator has opined that the parties shall share it

equally to the extent of the share of the defendant No. 5,

While going through Sec. 34 of the ""Act"" and the grounds enumerated therein no ground is made-out for setting aside for remittance of the arbitral

award, therefore, arbitral award is final and binding on the parties and shall be enforceable as decree of the court as ordained by Sec. 36 of the

Act"". Objections of the (defendant No. 1) objector are therefore, rejected.

Being aggrieved by the said order of the trial court the appellant Qazi Gh. Nabi has filed this appeal on various grounds including the

misconduct on the part of arbitrator, the award being filed after the time fixed by the court and non application of mind on the part of arbitrator in

making the award. It is also pleaded that the decree and compromise on the basis of which the Arbitrator has based his award was not registered,

as such the award being on inadmissible evidence was not a valid award.

It may be mentioned here that one of the grounds taken is that the reference made by the District Judge, Budgam, of the matter to an

Arbitrator was incompetent. This ground, however, is not available to the appellant as already the point was taken before the trial court who has

disposed of the issue holding that the reference was a valid reference. The appellant later went in revision against the said order of the trial court

which was disposed of by this Court on 14.05.2002 holding that the order does not suffer from any jurisdictional error, illegality or infirmity.

Heard. Considered. The main ground taken by the appellant to assail the award of the Arbitrator is that the Arbitrator has misconducted the

proceedings. It is pleaded that the Arbitrator has gone beyond the parameters of reference and has framed the opinion regarding the rights of those

persons who were not parties to the suit, divesting the appellant of his rights and vesting them in favour of persons who are not parties to the suit. It

is also pleaded that the Arbitrator has mentioned in the award that the counsel for the appellant was present throughout the proceedings whileas the

counsel has denied this fact in the witness box. It is further pleaded that the Arbitrator has based its award on inadmissible evidence and that the

Arbitrator has based his findings on speculations.

The trial court has also gone to this aspect and has come to the conclusion that there was no misconduct on the part of the Arbitrator. Both the

appellant and the trial court have proceeded on the assumption as if misconduct was a ground to set aside the award under the Arbitration Act of

1997.

Under the old Act an award could be set aside on the ground that the Arbitrator has misconducted himself or the proceedings but now under

the new Act Section 34 of the Act does not provide misconduct of the arbitral tribunal or proceeding as a ground to set aside an award. The

courts jurisdiction to set aside an award on this ground has been substantially restricted by the new Act. Section 34 of the new Act, however,

provides the following grounds on which the court can set aside an award:

The party was under some incapacity; or

The arbitration agreement entered into between the parties is not valid under the law to which the parties have subjected it or failing any

indication thereon, under the law for the time being in force; or

The party making an application was not given proper notice of the appointment of an Arbitrator or of the arbitral proceedings or was otherwise

unable to present his case; or

The arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains

decisions on matters beyond the scope of the submission to arbitration; or

The composition of the Arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties.

The Arbitral award can also be set aside-

When the court finds that the subject matter of the dispute is not capable of settlement by arbitration under the law for the time being in force; or

The Arbitral award is in conflict with the public policy of India.

Thus, one of the grounds available to a party aggrieved of an award is to show that the award is in conflict with public policy. Public policy

connotes some matter which concerns the public good and interest. Public policy is equivalent to the policy of law. In Kolaparti Venkatareddi Vs.

Kolaparti Peda Venkatachalam, Andhra Pradesh High Court held:-

Whatever tends to injustice of operation, restraint of liberty, commerce and natural or legal right; whatever tends to the obstruction of justice or to

the violation of a statute and whatever is against the good morals - when made the object of a contract is against a public policy and therefore void

and not susceptible of enforcement.

Apex Court in Oil and Natural Gas Corporation Ltd. Vs. SAW Pipes Ltd., while dealing with the meaning and scope of public policy observed as

under:

Therefore, in our view, the phrase 'public policy of India' used in S.34 in context is required to be given a wider meaning. It can be stated that the

concept of public policy connotes some matter which concerns public good and the public interest. What is for public good or in public interest or

what would be injurious or harmful to the public good or public interest has varied from time to time. However, the award which is, on the fact of

it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/decision is likely to adversely affect the

administration of justice. Hence, in our view in addition to narrower meaning given to the term 'public policy in Renusagar's case (supra), it is

required to be held that the award could be set aside if it is patently illegal. Result would be - award could be set aside if it is contrary to:-

(a) fundamental policy of Indian law; or

(b) the interest of India; or

(c) justice or morality, or

(d) in addition, if it is patently illegal.

Illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against the public policy. Award

could also be set aside it is so unfair and unreasonable that it shocks the conscience of the Court. Such award is opposed to public policy and is

required to be adjudged void.

If an award is patently illegal or is so unfair and unreasonable that it shocks the conscience of the court, it is required to be adjudged as void.

When in an award the Arbitrator shirks from adjudicating upon the most vital point in the case which has a direct bearing on the decision of the

arbitrator the award can be said to be unreasonable and unfair.

In the present case the issue before the Arbitrator was very vital but the same has not been properly appreciated. It was the case of

respondent No. 1 that the house in dispute at Baghat-e-Barzullah was joint between the parties. He relied upon a compromise deed which the

parties had filed before the court of Sub-Judge, Chief Judicial Magistrate, Srinagar and on the basis of which the Sub Judge decreed the suit. The

case of the appellant on the other hand was that the house was not joint and that the compromise deed on the basis of which the respondent

claimed his share was not a valid compromise as it was filed before a court of incompetent jurisdiction and that the decree which had been based

on the said compromise was later on set aside on the ground of lack of jurisdiction. It was the further case of the appellant that the compromise

was obtained on the basis of fraud and misrepresentation.

It was on the basis of these pleadings that the court had raised two specific issues as issue Nos. 3 and 4 in the case which were as under:-

Whether the admission by defendants 1 and 4 in the compromise deed presented by the parties before Sub Judge (CJM) Sgr. On the basis

whereof compromise decree dt. 17.4.74 was passed in civil suit No. 147 of 1974 is binding on them and they are estopped from disputing the title

and share of the parties specified therein respecting suit property ? OPP

Whether the compromise arrived at in the court of CJM (Sub Judge) Sgr on the basis of which a compromise deed dt. 17.4.1974 was passed,

was an outcome of fraud and misrepresentation practiced on defdt. No. 1. OPD

These issues show that one of the main issue which was involved in the case was as to whether the compromise deed was outcome of fraud

and misrepresentation practised on the appellant.

The Arbitrator has referred to the compromise deed and has relied on it and based his findings on it. No doubt the court can not to go to the

reasons given by the Arbitrator in support of its award as the court has not to sit as an appellate court and reappraise the evidence, the court has

also not to go as to whether due reasons have been given by the Arbitrator but the court will definitely not allow to act upon on an award which

does not deal with the actual controversy between the parties.

The object of arbitration is to finally decide a dispute which has arisen between the parties. An award on an arbitration must, therefore,

comprise a decision by the Arbitrator on all the issues referred with which it deals. It must be a complete decision without leaving matter to be

dealt with subsequently.

The Arbitrator in the present case has relied upon the compromise deed without going to the issue as to whether there was any

misrepresentation or fraud in obtaining the compromise deed. This was the most material issue and the Arbitrator should have given its findings on

this issue. Determination and finding on this issue has a direct bearing on the findings of the Arbitrator. Since the Arbitrator's finding is based on the

said compromise, if it is found that the same was not effected through fraud or misrepresentation, the compromise was definitely a good piece of

evidence but if the finding is otherwise, placing reliance on such a compromise is not proper.

Since the Arbitrator has not gone to this important aspect the award is not a valid award. There is another aspect of the case which needs

consideration by the trial court. The suit was filed by plaintiff Qazi Abdul Hamid against Qazi Gh. Nabi, Qazi Jalal-ud-din, Qazi Rashid-ud-din and

Qazi Siraj-ud-din. During the proceedings of the case the suit against defendants 2 to 4 has been dismissed. What was the effect of this fact on the

award and the rights of the parties has not been considered by the trial court. It will be proper if the court goes to that aspect of the case and return

its finding.

In the circumstances of the case I find that the award passed by the Arbitrator cannot stand. The award as well as the order impugned is set

aside. The case is remanded to the trial court for referring the matter. Since the Arbitrator belongs to Budgam and the case is now pending before

the court of Additional District Judge, Sriangar it may not be convenient to sent the matter again to the same Arbitrator. The court may appoint a

new Arbitrator in accordance with the provisions of law and proceed in the matter accordingly. Order accordingly.