Sh. Mulk Raj vs Hem Raj and another

Mufti Baha-Ud-Din Farooqi, J.—One. Lala Mulk Raj, hereinafter called 'the plaintiff, filed a civil suit against Shri Bakshi Ram and Hem Raj.

hereinafter called 'the defendants', in the Court of Munsiff Jammu. The plaintiffs case was that he owns a two storeyed house at Buca Danga,

Jammu, adjoining an open space on its northern and eastern sides belonging to defendant No. 1 and that he had acquired a right of easement in

respect of two smoke chimneys in his house, one in the ground floor and. the other in the second floor and so also in regard to the Jharnas (holes)

in the parapet walls of the upper storey which defendant No. 1 had no right to close, as he proposed to do, by the construction of the house, on

the open space at the instance of defendant No. 2. His further case was that defendant No. 1 had also no right to use the walls In his house

adjoining the open space in the proposed construction in as much as these walls were constructed by him at his own expense. In this context he

prayed for the grant of a decree for permanent injunction restraining the defendants from using the walls, as aforesaid, as also from closing the

smoke chimneys and Jharnas in his house. The defendants denied that the walls belonged to the plaintiff exclusively and pleaded in the alternative

that according to the custom prevailing in Jammu city a common wall could be used by the owners of the ad-Joining houses in any manner. They

further pleaded that the plaintiff had not acquired any right of easement. The trial Court raised the following issues:-

(1) Whether the smoke-chimneys and the Jharnas in dispute have been existing for more than twenty years, and therefore the plaintiff has acquired

a right of easement in respect of their use which light is still subsisting? O. P. P.

(2) Whether the walls in dispute are the exclusive property of the plaintiff? O. P. P.

(3) In case issue No.. 2 is not proved, whether the said walls are the common walls of the parties, and whether, according to the custom prevalent

in Jammu, the defendants are entitled to construct on them ? O. P. D.

During the progress of the suit the parties agreed to refer the dispute to the arbitration of Sarva Shri Radha Krishan Anand. Om Prakash Gupta

and Krishan Lal. Accordingly they filed the agreement Ex. P. W. 1 in the trial Court on June 6, 1962. The trial Court recorded the statements of

the parties in sun-port of the agreement and then referred file matter to the arbitration of the said arbitrators. The arbitrators made their award on

26-9-1962 and filed it in the trial Court on the following day. The plaintiff challenged the award on various grounds. The objections found favour

with the trial Court and the Court set aside the award by its order dated 31-12-1962. On appeal the learned Additional District Judge Jammu held

that the only flaw which could be found in the award was that the arbitrators had left issue No. 1' undetermined and that the trial Court should,

therefore, have more appropriately remitted the award to the arbitrators u/s 16 (1) of the Arbitration Act for decision on this issue. Accordingly he

set aside the order of the trial Court and remanded the case to the trial Court for fresh directions. By its order dated 16-7-1963 the trial Court

referred the matter to the arbitrators with the direction that they should give their decision on issue No. 1. The arbitrators found the issue in favour

of the plaintiff and filed their award in the Court on 18-1-1964. The award was inter alia based upon the previous statement of one of the

arbitrators namely. Om Prakash, given by him in a different case in the Court of City Judge Jammu on 7-9-1963. who, therefore declined to

associate himself with the award and made an endorsement to that effect on the award itself. The defendants filed objections and challenged the

award. The objections were treated as an application u/s 33 of the Arbitration Act and the parties were directed to produce their evidence. At this

stage, on an application made by the plaintiff, the case was transferred from the Court of Munsiff, Jammu, to the file of City Judge, Jammu. One of

the objections taken by the defendants was that the award (i. e. subsequent award) was invalid and unenforceable because one of the arbitrators

namely, Om Prakash, had not taken part in the proceedings resulting in the award. This objection found favour with the learned City Judge who

held that the award dated 18-1-1964 was invalid and unenforceable and that issue No. 1 was still open and called upon the parties to produce

their evidence with regard to the same. On appeal the learned District Judge Jammu recorded a finding to the contrary and remanded the case for

consideration of the remaining objections taken by the defendants. The order was confirmed on revision by this Court by its judgment dated 3-3-

1967. The remaining objections taken by the defendants, in substance, were that the award dated 18-1-1964 was procured improperly and it was

vitiated because It was based on the previous statement of one of the arbitrators. By its judgment dated 2-12-1968 the learned City Judge held

that issues Nos. 2 and 3 were concluded by the previous award dated 26-9-1962 and after negativing the remaining objections, as aforesaid, to

the award dated 18-1-1964 confirmed both the awards and made them the rule of the Court. The order was upset on appeal by the learned

Additional District Judge, Jammu who set aside both the awards dated 26-9-1962 and 18-1-1964: superseded the order of reference and

directed that the suit be tried on its merits by the Court below. Hence this revision by the plaintiff.

The award dated 18-1-1964 is mainly founded on the statement of one of the arbitrators namely. Om Prakash, which was given by him in the

Court of City Judge, Jammu, in case Mulk Raj v. Lala Kapoor Chand, Civil Suit No. 126 of 1963 on 7-9-1963 in which he stated that the present

house was built by the plaintiff after demolishing the old house and that the chimneys and Jharnas in dispute were located in the new house at the

places at which they existed in the old house. This is clear from the statement of Krishan Lal, another arbitrator, who was examined in the trial

Court when he says.:

It is correct to say that with a view to maintaining the prestige of Shri Om Prakash, one of the arbitrators we gave an award different from the one

given by us earlier on 26-9-1962 because Om Prakash had made a statement in a different case which had a bearing on the present award.

He makes it more clear in the later part of his statement when he says:

From the statement of Om Prakash we learnt that the chimneys and Jharnas existed for more than twenty years and so the question of his prestige

arose.

His repeated use of the word 'prestige' indicates nothing more than that the arbitrators placed implicit reliance on the previous statement of Om

Prakash.

The question arises whether the action of the arbitrators in placing reliance on the previous statement of one of them constitutes legal misconduct

It is true that the arbitrators are not bound by the rules of evidence contained in the Evidence Act but that is not the same thing as saving that they

are not bound by any rule of evidence. They must follow rules of evidence founded on fundamental principles of justice. They will be guilty of

judicial misconduct if they decide the matter on evidence which is not binding on the parties. Accordingly where the arbitrators act on a previous

statement which the party against whom it is sought to be read had no opportunity to meet, they are guilty of judicial misconduct. The impression

carried by me at the hearing of this revision was that Om Prakash had made his statement in a suit between parties to the present litigation which

led me to express my doubts about whether reliance placed on this statement by the arbitrators constituted legal misconduct But on going through

the file 1 find that the defendants were not party to the suit in which the statement was made. It was a suit between the present plaintiff and

somebody else and Om Prakash appeared as a witness for the plaintiff in that case. The present defendants had no opportunity to meet the

statement of Om Prakash in that case. Accordingly no reliance could be placed on this statement even If it was verified to be correct by Om

Prakash as stated by the arbitrators in the award dated 19-1-4964. The action of the arbitrators in basing their award dated 19-1-1964 on the

statement of Om Prakash constitutes, in my opinion, judicial misconduct on their part In agreement with the learned Additional District Judge, I,

therefore, hold that the award dated 19-1-1964 is vitiated by misconduct and must be set aside.

On the finding recorded above it Is therefore open to the parties to agitate the matter covered by issue No. 1 before the trial Court but not so

the matters covered by issues Nos. 2 and 3 which are concluded by the previous award dated 26-9-1962, as rightly observed by the trial Court

The learned Additional District Judge has however taken a contrary view which. I feel, is not sustainable. Dealing with question of the chimneys the

arbitrators had stated in the previous award that the presence of two chimneys was unnecessary and meaningless and that one chimney alone In the

second storey could serve the purpose of discharging the smoke from both storeyes of the house with a little alteration which could be done at the

expense of the defendants. Likewise referring to the Jharnas it was observed therein that the Jharnas existed in the Parapet walls of the upper

storey and both the parties could use these walls as parapet walls. Observing ""that the arbitrators had travelled beyond their jurisdiction in

adjudicating upon the necessity or otherwise of the two chimneys"", the learned Additional District Judge, in his judgment under revision, held that

the award was liable to be set aside on this account. In the end, therefore, he set aside the previous award as well. In this he has overlooked the

judgment of his learned predecessor dated 15-5-1963 and the order of the Munsiff dated 16-7-1963 based thereon, according to which issue

No. 1 alone was referred to the arbitrators for fresh determination. This was done to pursuance of Section 16 (1) of the Arbitration Act according

to which the Court may remit the award in whole or only a part of it for reconsideration. The part not remitted became final and so viewed issues

Nos. 2 and 3 stood concluded by it. It was not open to the Additional. District Judge to reopen the case in this respect end set aside the entire

award dated 26-9-1962. His order in this behalf is liable to be set aside

In the result the judgment of the Additional District Judge under revision is upheld to the limited extent that the award dated 18-1-1964 on Issue

No. 1 is set aside and it is hereby directed that the trial Court will determine issue No. 1 after affording the parties opportunity to produce their

evidence in relation thereto and then pass appropriate orders in the case based on such determination and the award dated 26-9-1962 concerning

Issues Nos. 2 and 3. The revision shall stand disposed of accordingly. The parties win bear their own costs in this court They will put in their

appearance in the trial court on 5-2-73.

S.M.F. Ali, C.J.

I agree.