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Rajasthan High Court · body

1960 DIGILAW 310 (RAJ)

Bhoormal v. Narain Lal

1960-12-02

JAGAT NARAYAN

body1960
JAGAT NARAYAN, J. — This is a revision application by the plaintiffs against an appellate order of the Civil Judge, Sojat. 2. The plaintiffs instituted a suit for the recovery of Rs. 978.9.6 against the defendant on 10.9.53. During the pendency of the suit a reference to arbitration was made through the intervention of the court. The award was filed in court on 7.9.55. The parties were not present on that date as the court had fixed 10.9.55 for the appearance of the parties in anticipation of the award being filed. 3. According to the order-sheet, on 10.9.55 when the case was called the lawyers of the parties were present and they were informed that the award had been filed and that if any party had any objection it should be filed on 26.9.55 which was fixed as the next date of Peshi. 4. On 26.9.55 Shri Maya Shankar appeared for the plaintiffs and Shri Chiranji Lal appeared for the defendant. Shri Chiranji Lal stared that on the previous date of hearing Shri Manak Lal lawyer of the defendant was not present and requested the court to extend the time for filing the objections against the award. The court however held on the basis of the order-sheet dated 10.9.55 that Shri Manak Lal was present on that date on behalf of the defendant and that he had due notice of the filing of the award. But it found that one months time should have been allowed to the parties to file objections. Time for filing objections was accordingly extended by another 15 days and 27.10.55 was fixed as the next date of Peshi. No objection was however filed by any party by 10.10.55 upto which time for filing objections had been extended. On 27.10.55 the presiding officer was on leave and the case was ordered to be put up on 31.10.55. On that date an objection was filed by the defendant. It is paper No. A 51/1. After narrating the objections against the award the following note was appended :— "Notice of the filing of this award was given on 26.9.55. The objection is being filed today after excluding the time taken in obtaining the copies." This objection was signed by the defendant personally as well as by his lawyer Shri Manak Lal. After narrating the objections against the award the following note was appended :— "Notice of the filing of this award was given on 26.9.55. The objection is being filed today after excluding the time taken in obtaining the copies." This objection was signed by the defendant personally as well as by his lawyer Shri Manak Lal. It was contended on behalf of the plaintiffs that the objection was barred by limitation under Art. 158. This contention was upheld by the presiding officer on the ground that notice of the filing of the award was given to the parties on 10.9.55 and the period for filing objections expired on 10.10.55. The only argument advanced on behalf of the defendant before the trial court was that he was entitled to exclusion of time requisite for obtaining a copy of the award under sec. 12 of the Limitation Act. It appears that a copy of the award had been taken by the defendant before 26.9.55. According to the defendant the notice of the award was given to him on 26.9.55. The court observed that even if that date be accepted as the date of giving a notice the period for filing objections expired on 26.10.55 and the defendant was not entitled to exclude any time for obtaining the copy of the award as it had already been obtained by him before 26.9.55. It is significant that it was not alleged before the trial court that Shri Manak Lal was not appearing as a lawyer on behalf of the defendant. 5. Against the order of the presiding officer the defendant preferred an appeal. The sole ground taken in this appeal was that Shri Manak Lal was not authorised to appear on behalf of the defendant and so notice to Shri Manak Lal on 10.9.55 could not be taken to be notice given to the defendant. 6. The learned Civil Judge who decided the appeal accepted this contention on the ground that the Vakalatnama in favour of Shri Manak Lal was not on record and that under O.3 R. 4 C.P.C. Shri Manak Lal could not act for the defendant unless he had been appointed by a document in writing signed by the defendant. 7. On behalf of the plaintiffs it is urged that the decision of the learned Civil Judge is erroneous. 7. On behalf of the plaintiffs it is urged that the decision of the learned Civil Judge is erroneous. It is contended that the objection filed by the defendant on 31.10.55 and signed by him personally is signed by Shri Manak Lal also which shows that he was appearing for him in this suit. The order-sheet dated 26.9.55 also shows that he was appearing for the defendant at that stage of the case. It may be mentioned here that several lawyers were engaged by the defendant in this case to represent him. Shri Chiranji Lal appeared for the defendant on 26.9.55. The defendant himself admitted that he was given notice of the filing of the award by the court on 26.9.55. This admission is conclusive for purposes of the present case. Further it is contended that Shri Chiranji Lal stated on 26.9.55 that on 10.9.55 Shri Manak Lal was not present. If some other lawyer had been appearing for the defendant in those days in these proceedings Shri Chiranji Lal would have named that lawyer and not Shri Manak Hal as the lawyer who was not present on 10.9.55 according to his allegation. Lastly it is argued that these facts go to show that Shri Manak Lal was appearing for the defendant and he could not have done so without filing his Vakalatnama. It is pointed out that before the trial court it was not alleged by the defendant that Shri Manak Lal was not appearing for him and that it was in the memorandum of appeal for the first time that it was alleged by the defendant that Shri Manak Lal was not appearing for him. It is suggested that Shri Mank Lals Vakalatnama might have been removed deliberately from the file before it was sent to the appellate court. 8. A perusal of the file shows that the whole of the index was written at that time. This must have been done before sending the record to the appellate court. The pages of the file also appear to have been numbered on the day. This also must have been done before it was sent to the appellate court. From the mere fact that the Vakalatnama is not entered on the index it cannot be inferred that it was not filed. The pages of the file also appear to have been numbered on the day. This also must have been done before it was sent to the appellate court. From the mere fact that the Vakalatnama is not entered on the index it cannot be inferred that it was not filed. The fact that Shri Manak Lal signed the objection against the award and presented it leaves no doubt in my mind that he was appearing for the defendant in this case. This objection is signed by the defendant also. Further the order-sheet dated 26.9.55 goes to show that even on 10.9.55 it was Shri Manak Lal who was appearing for the defendant. The court would not have permitted Shri Manaklal to appear for the defendant without filing his Vakalatnama. I accordingly infer that Shri Manaklal must have filed his Vakalatnama in this case. It might have been misplaced or it might have been removed deliberately. The learned Civil Judge was accordingly not justified in holding that because Shri Manaklals Vakalatnama was not recorded notice of filing the award given to Shri Manaklal by the court was not notice to the defendant. 9. So far as the Older of the trial court is concerned it was attacked on behalf of the defendant on the ground that there was no material on record to show that the defendant had obtained a copy of the award before 26.9.55. The trial court must have referred to the register of copies or it may be that a copy of the award taken by the defendant was shown to it. It is for the defendant who wants time requisite for obtaining copies to be excluded to show whether he actually obtained any copy and if so how much time was necessary for obtaining it. No copy of the award has been filed to show that one was actually taken. 10. Another argument advanced on behalf of the defendant was that a reading of sec. 14 of the Arbitration Act along with Art. 158 of the Limitation Act goes to show that the court should get a written notice of the filing of the award served on the defendant personally in the manner provided in Order 5 C.P.C. I am unable to accept this argument. 11. Sec. 14 of the Arbitration Act makes provision for the giving of two notices. Under sub-sec. 11. Sec. 14 of the Arbitration Act makes provision for the giving of two notices. Under sub-sec. (1) the arbitrators are required to give notice in writing to the parties of the making and signing of the award. Under sub-sec. (2). the court is required 10 give notice to the parties of the filing of the award. In sub-sec. (2) the words "notice in writing" have not been used. This clearly shows that it is not contemplated that the no ice under sec. 14(2) should be in writing. In this connection the decision of the East Punjab High Court in Han Chand Vs. Lachhmandas(1) may be referred to. 12. Coming now to the third column of Art. 158 on which the defendant relied till it was amended in 1919 the starting point was the date when the award is submitted to the court". There was a conflict of decisions on the question whether in view of paragraph 10 of Sch. II of the C.P.C. which required the court to give the parties notice of filing of the award, time under the Article must, notwithstanding the third column, run only from the date of the notice. The words "when the award is filed in court and notice of the filing has been given to the parties" were substituted in the third column in 1919 for the words "when the award is submitted to the court" and it was made clear that time ran only from the date when the award was filed in the court and notice of the filing given to the parties. A question arose as to when the court could be said to have given notice. It was held that a mere direction to issue notice was not giving any notice and that a notice could be said to be given to a party only when such party received the notice. The third column was again amended in 1940 and the starting point now is "the date of service of the notice of filing of the award". As has been shown above 8.14(2) of the Arbitration Act does not prescribe a notice in writing by the court. The third column was again amended in 1940 and the starting point now is "the date of service of the notice of filing of the award". As has been shown above 8.14(2) of the Arbitration Act does not prescribe a notice in writing by the court. In my opinion the words "the date of service of the notice of the filing of the award" mean exactly what the words mean "when the award is filed in court and notice of the filing has been given to the parties" meant. The Limitation Act cannot prescribe a notice in writing when the Arbitration Act itself does not prescribe one under sec. 14(2). Under sec. 41 of the Code of Civil Procedure it is only applicable to proceedings under the Arbitration Act subject to the provisions of that Act. As sec. 14(2) does not prescribe for a notice in writing it follows that the provisions of sec. 142 or O. 48, R. 2 C.P.C. are not applicable to a notice given under sec. 14(2). The notice need not therefore be served in the manner provided in Order 5 C.P.C. 13. It may be noted that sec. 14 occurs in Chapter II which deals with arbitration without intervention of the court. This section is primarily worded to meet the requirements of such an arbitration. It is only by virtue of sec. 25 that the provision contained in sec. 14 are applicable to arbitration in suits "so far as they can be made applicable . In a suit parties appear on date fixed for their appearance either personally or through pleader. They are deemed to have notice of the proceedings on the dates fixed for their appearance or on dates not fixed for their appearance but on which some proceeding in the suit takes place in their presence or in the presence of their pleaders. The word "notice" means nothing more than "information". Sec. 14(2) prescribes the giving of the notice of the filing of the award by the court. The requirement of this section is sufficiently complied with if the court deliberately imparts information of the filing of the award in court to the parties or their pleaders. In this connection the following cases may be referred to :— Sharf Ali Vs. Sultan Ali (2), Ram Bharosey Vs. Pearey Lal (3), Saroj Bala Bose Vs. Jatendra Nath Bose(4) and Bholanath Roy Vs. In this connection the following cases may be referred to :— Sharf Ali Vs. Sultan Ali (2), Ram Bharosey Vs. Pearey Lal (3), Saroj Bala Bose Vs. Jatendra Nath Bose(4) and Bholanath Roy Vs. Bata Kishna Roy (5) On behalf or the respondent the decision of the Sind Chief Court in Hola Ram Vs. Governor General of India(6) was referred to in which it was held that notice should he given personally to the parties and notice to their pleaders was not sufficient. This view has not been accepted by any other High Court. With all respect I am unable to see why in an arbitration in a suit notice given by the court to the pleaders or duly recognised agents of the parties should not be deemed to be notice to the parties. 14. In the present case the information about the filing of the award was communi-cated by the court to Shri Manak Lal who was appearing for the defendant on 10.9.55. The present objection which was filed after 10.10.55 was therefore barred by limitation. Even according to the admission made by the defendant himself in his objection filed on 31.10.55 it was admitted by him that notice of filing of the award was given to him on 26.9.55. Assuming for the sake of argument that it was so, he could have filed his objection by 26.10.55. He has not shown that he is entitled to exclusion of any time either under section 12 of the Limitation Act or under any other provision of law. The objection filed by him on 31.10.55 was time barred even on the basis of his own admission. 15. I accordingly find that the decision of the trial court that the objection was time barred is correct. I therefore allow the revision application, set aside the order of the appellate court, dismiss the objection filed by the respondent on 31.10.55 as time barred, and restore the decree passed by the trial court on the basis of the award. The applicants will be entitled to recover the costs of this Court and that of the appellate court from the respondent.