Kunwar Bharat Singh v. Chandra Bhushan Singh — 1962 DIGILAW 85 (ALL)

JUDGMENT S.C. Manchanda, J. - This is a defendants' appeal under Section 39 of the Indian Arbitration Act dismissing the objection filed by the defendants to the award. 2. The question which falls for consideration is an interesting one, as to whether the provisions of the Indian Arbitration Act are subject to the pro visions of the U.P. Amending Act XVIII of 1956 whereby Sec. 332-B was inserted in the Zamindari Abolition and Land Reforms Act 1950 ? This question is res integra. 3. The facts leading up to this appeal may be briefly stated. The plaintiff as far back as 1949 had filed a suit against the present and other members of the family for a declaration that the plaintiffs had a half share in the suit properties. In the alternative the relief claimed was for a declaration that the parties were joint owners in the suit property. The suit was contested mainly by defendants 1, 2 and 4. The suit remained pending since 1949 for many years and the position which has now arisen in this case is as a result, several years later, of the promulgation of the U.P. Amending Act XVIII of 1956 which made it obligatory for a civil court in all pending proceedings and all suits in which a decree had not yet been passed to refer the matter of Sirdari rights if such a matter was in issue to the Revenue Court. The decision of the Revenue Court under Sec. 332-B (4) of the U.P. Zamindari Abolition and Land Reforms Act, (hereinafter referred to as the Z. A. and L.R. Act) had to be accepted by the Civil Court which was to proceed to decide the suit accepting the finding of the Collector or the Subordinate Revenue Court on the issue referred to it. I may here, conveniently, read the relevant section of the Z. A. and L.R. Act. I may here, conveniently, read the relevant section of the Z. A. and L.R. Act. "332-B(1) If in any suit relating to land instituted after the commencement of the U.P. Land Reforms (Amendment) Act, 1954, in a Civil Court or if instituted before the said commencement a decree had not already been passed, the question arises or is raised whether any party to the suit is or on any material date was a sirdar, adhivasi or asami of the land and such question has not previously been determined by a court of competent jurisdiction, the Civil Court shall frame an issue on the question and submit the record to the Collector for the decision of that issue only. Explanation - A plea of being a sirdar, adhivasi or asami which is clearly untenable and intended only to oust the jurisdiction of the Civil Court shall not be deemed to raise a question as aforesaid. (2) The Collector after reframing the issues, is necessary, shall decide such issue only, and return the record together, with his finding thereon to the Civil Court which submitted it. (3) The Collector may, instead of deciding the issue himself, transfer it to a competent subordinate revenue court which shall after reframing the same if necessary decide it and return the record. (4) The Civil Court shall then proceed to decide the suit accepting the finding of the Collector or the subordinate revenue court on the issue referred to it. (5) The finding of the Collector or subordinate Revenue Court on the issues referred to it shall, for the purposes of appeal be deemed to be part of the finding of the Civil Court." 4. The suit, however, before the coming into force on 28-5-1956 of the said Act XVIII of 1956 had reached a definite stage and that stage was that the parties had by mutual agreement applied to the court on the 22nd February 1956 for a reference being made of all the matters in dispute to the decision of a sole arbitrator. The said agreement for arbitration is paper No. 78(1.). It set out that though the parties were aware that the arbitrator whom they were appointing was the Vakil of defendant No. 4 yet the parties had absolute confidence in his integrity, impartiality and judgment and they were therefore appointing him as sole arbitrator. The said agreement for arbitration is paper No. 78(1.). It set out that though the parties were aware that the arbitrator whom they were appointing was the Vakil of defendant No. 4 yet the parties had absolute confidence in his integrity, impartiality and judgment and they were therefore appointing him as sole arbitrator. The Arbitrator was authorised, thereunder, to make enquiries and after taking such evidence as the parties may produce to give his award which will be acceptable to all of them. 5. Before the matter was referred to arbitration on 10-1-1956 an additional issue was framed which was numbered as issue No. 6 and it was - "Has the plaintiff a share in the Bhumidhari rights and if so what ?" Naturally, this issue also was referred to the arbitrator. On the date when this issue was so referred the Civil Court had jurisdiction to try such an issue itself and therefore it could have undoubtedly referred this matter to the decision of the Arbitrator. But, while the arbitration proceedings were pending the said amending Act came into force on the 28th May 1956 and on that date if this issue regarding Sirdari rights had been pending decision with the Civil Court - it would have been obligatory on the Civil Court to have rferred this issue to the Revenue Court. It is conceded by Mr. Shambhu Prasad learned counsel for the respondents that, if the issue of Sirdari had arisen after the coming into force of the Amending Act (Act XVIII of 1956) then the Court could not have been able to refer such an issue for the decision of the arbitrators even if the parties had mutually agreed that it should be so referred to arbitration but according to him as the reference was in fact made before the amending Act had come into force the jurisdiction of the arbitrator to decide the question of Sirdari rights could not be taken away by subsequent legislation. The jurisdiction of the Civil Court to decide any such issue after the coming into force of the Act XVIII of 1956 was undoubtedly taken away by the Legislature. That a competent Legislature has the right to divest the Civil Courts of such jurisdiction is unquestionable. The jurisdiction of the Civil Court to decide any such issue after the coming into force of the Act XVIII of 1956 was undoubtedly taken away by the Legislature. That a competent Legislature has the right to divest the Civil Courts of such jurisdiction is unquestionable. If any authority is required for this proposition it is to be found in the decision of the Supreme Court in the Case of Akbar Khan Alam Khan v. Union of India, A.I.R. 1962 SC 70, where it was laid down that a competent Legislature may take away a Civil Court's jurisdiction to try other questions also and no authority has been shown that this cannot be done. 6. In these circumstances, the only question that really falls for consideration is whether this matter, including the issue of Sirdari rights, having already been referred to Arbitrators by the Civil Court on the 28th February 1953, before the coming into force of Act XVIII of 1956 on the, 28th May 1956, would remain untouched thereby and the Arbitrator can proceed to decide the question of Sirdari at a time when the Civil Court itself stood divested of its jurisdiction to try such an issue? The answer thereto must depend on whether the competence and the jurisdiction of the arbitrator is something which flows from the order of reference of the court or proceeds de hors, and independently thereof and once the matter has been referred to arbitration does the suit cease to be pending with that Court? Unless the answer thereto can be given in the affirmative this appeal must partially succeed. 7. There cannot be much doubt that parties cannot by agreement confer jurisdiction where it does not exist and where the Court has no jurisdiction the agreement of parties cannot confer jurisdiction to make the reference vide T. Wang v. Sona Wangali, AIR 1925 Calcutta 812. Even if reference has been made, and the Court at the time of the passing of the decree on the award finds that it has been divested of jurisdiction by statute in respect of a particular shop, the court will have no alternative but to withhold itself in passing a decree on a matter which it has no jurisdiction vide Jodha Ram v. Ralla Ram, AIR 1928 Lahore 730. 8. In this connection a reference to the scheme of the Indian Arbitration Act can be usefully made. 8. In this connection a reference to the scheme of the Indian Arbitration Act can be usefully made. Sec. 15 gives the Court after the award is filed the power to modify and correct the award. Sec. 16 gives the Court the power to remit the award to the arbitrators. Under Section 21 it is the parties who have to apply to the Court in writing that a reference to an arbitrator be made. The appointment of the Arbitrator is by the Court and finally it is the Court that proceeds under Section 17 to pronounce judgment in terms of the award, and upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except on the ground that it is in excess of or not otherwise in accordance with the award. 9. It is thus manifest that the Arbitrator's power to arbitrate have to be sanctioned by the Court, the Court delegates its powers of deciding the paints in dispute to the arbitrator but the award given by the arbitrator is not affective unless the Court pronounces its judgment in terms of the award and upon the judgment so pronounced a decree is given by the Court and then and then only is the award enforceable at law. Therefore, all that happens when a reference is made is that the jurisdiction of the court while the matter is pending with the arbitrator, is temporarily suspended but the jurisdiction of the court is never ousted. As soon as the award is filed the Court's jurisdiction becomes operative again and remains so till the decree is passed upon the judgment pronounced in terms of the award. During all this period the suit necessarily remains pending with the Court. 10. A reference may also be made to sub-sec, 2(c) of the Arbitration Act which defines "Court". "Court" means a Civil Court having jurisdiction to decide the questions forming the subject matter of the reference if the same had been the subject-matter of a suit ...." These words mean that the Court can only refer such matters as it would have decided by itself in the suit. "Court" means a Civil Court having jurisdiction to decide the questions forming the subject matter of the reference if the same had been the subject-matter of a suit ...." These words mean that the Court can only refer such matters as it would have decided by itself in the suit. Surely the Civil Court could not legally have decided the issue of Sirdari after the Amending Act XVIII of 1956 had come into force, and even if it had referred such an issue to the arbitrators before the Amending Act had come into force and the arbitrator had not given his award even then the Court could not legally have made that part of the award a rule of the Court and passed a decree in terms thereof. 11. In the ultimate analysis therefore it is the judgment of the Court and the decree in terms of the award is also that of the Court. If by the time the judgment comes to be pronounced the court's jurisdiction has been taken away to pronounce judgment on a .particular point it has no alternative but to hold its hands as otherwise its judgment and decree would be without jurisdiction. Therefore, even if there is no power under the Arbitration Act to withdraw any part of the reference once made by the Court, the jurisdiction of the arbitrator cannot ever be greater or larger than that of the Court. It is aximatic that the court cannot confer greater jurisdiction than it itself possesses. If the Court is divested of its powers the arbitrator's powers a fortiori, will also stand diminished to that extent. The arbitrator's powers stem from that of the Court and are not de hors the Court. 12. On the merits the only objection taken to the award was that of the misconduct of the arbitrator. I was taken through the evidence on the point by Mr. Ambika prasad learned counsel for the appellants. The trial court has in my judgment, rightly rejected such an objection as being without substance. 13. In the result the appeal succeeds only on the point that issue no. I was taken through the evidence on the point by Mr. Ambika prasad learned counsel for the appellants. The trial court has in my judgment, rightly rejected such an objection as being without substance. 13. In the result the appeal succeeds only on the point that issue no. 6 regarding Sirdari rights could not have been the subject of an award and much less of the judgment of a court, nor could a decree of the court in terms of the award have been passed on the date i.e. the 17th December 1956 when the decree was passed. The award therefore to the extent that it deals with Sirdari rights cannot be allowed to stand. The Civil Court must refer issue no. 6 to the revenue court. This is obligatory notwithstanding the amendment of the Act and deletion of Sec. 332-B subsequently in 1958, as the relevant date is the date on which the decree of the Civil Court was made. 14. The appeal is allowed in part. In the circumstances of the case there will be no order as to costs.