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Allahabad High Court · body

1965 DIGILAW 290 (ALL)

Binda v. Indrabali

1965-08-13

D.S.MATHUR

body1965
ORDER D.S. Mathur, J. - This is a revision u/s 115 CPC by Binda against the order of the District Judge of Jaunpur, dismissing his appeal and thereby confirming the order of the Civil judge whereby the ex parte order confirming the ex parte award was not set aside, 2. Considering that the whole matter is being remanded for a fresh hearing it is not necessary to make any comment on the merits of the case. Only the question of law involved shall be considered to enable the lower courts to act according to law. 3. The material facts of the case are that when the Consolidation Officer referred the question of title to the Civil Judge under the then Section 12(4) of the U.P. Consolidation of Holdings Act (to be referred hereinafter as the Act), he fixed a date for the appearance of the parties before the Civil Judge and information of this date was given to them including Binda. That day was declared a holiday and the case was taken up by the Civil judge on the re-opening of the courts. Binda did not put in appearance that day and in his absence the Civil Judge framed issues and referred them to the Arbitrator as required under the above section, for making an award. He at the same time fixed a date for appearance before the Arbitrator. Binda was not served with any fresh notice and it appears, the date of appearance was not communicated to him. When Binda did not appear before the Arbitrator on the date fixed, he proceeded with the arbitration ex-parte and made an ex-parte award. While singing the award the Arbitrator fixed a date for the appearance of the parties before the Civil Judge and it appears, Binda had no information of this date also. The Civil Tudge confirmed the award when no objection was filed by any of the parties. It was after about two months that Binda moved the Civil Judge for setting aside the exparte order by which the exparte award of the Arbitrator had been confirmed. At the same time, he filed an objection to the award. The Civil Judge dismissed the application end refused to set aside the earlier order. The appeal preferred before the District Judge met the same fate and Binda has now moved this Court in revision. 4. At the same time, he filed an objection to the award. The Civil Judge dismissed the application end refused to set aside the earlier order. The appeal preferred before the District Judge met the same fate and Binda has now moved this Court in revision. 4. Though the question of title was referred to the Civil Judge for determination, it has to be referred to the Arbitrator as required u/s 12 (4) of the Act. The Arbitrator to whom the reference is made is one who is appointed by the State Govt. u/s 37(1) of the Act. The question arises whether the proceedings before the Arbitrator and also the subsequent proceedings are governed by the provisions of the Arbitration Act, or by the rules framed by the State Government u/s 54 of the Act. 5. Section 14(1) of the Arbitration Act contemplates that after signing the award the Arbitrators or Umpire shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payble in respect of the arbitration and award. Similarly, Under Sub-section (2) of Section 14 of the Arbitration Act it is necessary for the court to give notice to the parties of the filing of the award. Where no objection to the award is filed within the prescribed period, or the objection is dismissed, the award is made a rule of the court and a decree passed accordingly. On an objection made the award can be remitted for reconsideration or can be set aside with or without a fresh reference to the same Arbitrator. 6. The words "notice in writing to the parties" used in Sub-section (1) of Section 14 of the Arbitration Act would suggest that the notice of the making and signing of the award must be given to all the parties including those who had not put in appearance before the Arbitrators or Umpire. Similarly, where the award is filed in court by the Arbitrators or Umpire, or is filed in court on an application being made by a party to the award, the notice has to be given to all the parties irrespective of whether they had put in appearance before the Arbitrators or Umpire or not. 7. Similarly, where the award is filed in court by the Arbitrators or Umpire, or is filed in court on an application being made by a party to the award, the notice has to be given to all the parties irrespective of whether they had put in appearance before the Arbitrators or Umpire or not. 7. Section 14 of the Arbitration Act thus makes it clear that the notice of the making and signing of the award, and also of the filing of the award has to be given in one case by the Arbitrators or the umpire & in the other by the court-to all the parties to the arbitration agreement and not merely to those who had put in appearance before the Arbitrators or Umpire. By implication it can also be said that the Arbitrators or Umpire as the case may be must give notice to all the parties before entering into arbitration. In other words, therefore, if the provisions of the Arbitration Act are fully applet cable to arbitration proceedings there conducted under the Act, it shall be necessary for the Arbitrator and also the court to give notice to all the parties including those who had not put in appearance at the earlier stages. 8. However, Rule 63 of the U.P. Consolidation of Holdings Rules, 1954 (to be referred hereinafter as the Rules) can suggest that intimation be given to only such parties as were present at the earlier stage. Sub-rule (3) thereof provides that the Assistant Consolidation Officer shall intimate the date on which the parties should attend the court of the Civil Judge while transmitting the record to him. Similarly, Sub-rule (4) lays down that while referring the issues to the Arbitrator for making the award within a specified period, the Civil Judge shall intimate the parties of the date on which they should appear before the Arbitrator and obtain their signatures or thumb impressions in token of the information. 9. Sub-rule (1) of Rule 63 of the Rules provides that where the Arbitrator has made the award he shall sign it and give notice in writing to the parties of the making and sighing thereof and he shall thereafter transmit the record of the case to the Civil Judge after giving intimation of the date on which the parties should appear before him (Civil Judge). 10. 10. When these three sub rulerare read together, it can rightly be said that the intimation of the date of appear once before the Civil Judge, Arbitrator and the Civil Judge again, as the case may be, has to be given to the parties present and it is not necessary to serve a notice on the parties not present Consequently, if Rule 63 of the Rules is valid and it is not necessary to serve a fresh notice on absentee parties, the exparte decree passed on the basis of an exparte award shall be legal and this Court shall have no jurisdiction to interfere in revision with the orders of the subordinate courts. But if it is necessary for the Arbitrator to give notice of the making and signing of the award to the absentee parties also, and it is also necessary for the Civil Judge to give notice to the absentee parties of the filing of the award, the award cannot be made a rule of the court unless such a notice is given and the aggrieved party has an opportunity to object to the award. 11. The record suggests that the Arbitrator had not given any notice to Binda, applicant of the making and signing of the award and the Civil Judge had also not given notice to him of the filing of the award. No final opinion is being expressed and it shall be for the Civil Judge to record a finding on this point. In case he finds that the notices had been given and the objection to the award was not filed within the prescribed period, he can dismiss the objection on the ground of limitation and the final result shall be that the order confirming the award shall stand. But if he finds that no such notice was served on Binda, he shall have to be given a hearing before the objection can be dismissed. 12. As already indicated above, Section 12(4) of the Act merely lays down that the question of title referred to the Civil Judge shall be referred to the Arbitral or for decision. But if he finds that no such notice was served on Binda, he shall have to be given a hearing before the objection can be dismissed. 12. As already indicated above, Section 12(4) of the Act merely lays down that the question of title referred to the Civil Judge shall be referred to the Arbitral or for decision. As laid down in Section 46 of the Arbitration Act, the provisions of a special law governing arbitration override the provisions of the Arbitration Act; and consequently, the reference to arbitration shall be to the Arbitrator appointed u/s 37(1) of the Act and in other respects the arbitration proceeding shall be governed by the provisions of the Arbitration Act. This has also been made clear in Section 37(1) of the Act, which clearly provides that "in all other respect the matter shall be determined in accordance with the provisions of the Arbitration Act" 13. If Clauses (rr) and (rrr) had not been incorporated in Section 54(2) of the Act, there could be no controversy in that the provisions of the Arbitration: Act were applicable and the giving of; the notice at the two stages, referred to above, was necessary. But these two clauses of Section 54(2) of the Act confer power on the State Govt. to make rules to provide for "the procedure for transmission of the question of. title to the Civil Judge and of reference by the Civil Judge to the Arbitrator" and "the return of the decision thereon by; the Civil Judge to the Consolidation; Officer;" and also "the procedure relating to the disposal of references by the Arbitrator." These clauses are some what in conflict with Section 37(1) of the Act, Section 37(1) laying down that "in all other respect the matter shall be determined in accordance with the proviso ions of the Arbitration Act, 1940," while Clauses (rr) and (rrr) giving power to the State Government to make rules on the points detailed above. One rule of interpretation of statutes is that a subsequent provision in the enactment prevails over the earlier one, and the other rule is that the court shall make an attempt to harmonise the various provisions which appear to be contradictory. 14. One rule of interpretation of statutes is that a subsequent provision in the enactment prevails over the earlier one, and the other rule is that the court shall make an attempt to harmonise the various provisions which appear to be contradictory. 14. Therefore, we can harmonise the two provisions by laying down that the rules strictly falling within Clauses (rr) and (rrr) of Section 54(2) of the Act shall prevail over the corresponding provisions of the Arbitration Act and such rules shall govern the arbitration proceeding, and in other respect the arbitration shall be governed by the provisions of the Arbitration Act. While interpreting the above clauses of Section 54(2) of the Act it shall be necessary to give a broader meaning to the words used therein. In other words, the rules framed by the State Government shall be valid only to the extent they provide for: (1) The procedure for transmission of the question of title to the Civil Judge; (2) The procedure for transmission of reference by the Civil Judge to the Arbitrator; (3) The return of the decision thereon by the Civil judge to the Consolidation Officer; and (4) The procedure relating to the disposal of references by the Arbitrator. When the Assistant Consolidation or Consolidation Officer fixes a date and gives intimation thereof to the parties for appearance before the Civil Judge, he can be said to be complying with the prescribed procedure for transmission of the question of title to the Civil Judge. Similarly, the rule directing the Civil Judge to fix a date and give intimation thereof to the parties while referring the issues to the Arbitrator can be said to be within the rule making power. It can also be said that the Arbitrator can proceed with the arbitration without giving fresh notice to the absentee parties. But it is doubtful if Clause (rrr) of Section 54(2) of the Act shall cover action to be taken by the Arbitrator after the making of the award. It can also be said that the Arbitrator can proceed with the arbitration without giving fresh notice to the absentee parties. But it is doubtful if Clause (rrr) of Section 54(2) of the Act shall cover action to be taken by the Arbitrator after the making of the award. Even if we assume for the sake of argument that it is not necessary for the Arbitrator to give notice of the making and signing of the award to the absentee parties, the above two clauses do not give power to the State Government to lay down a rule in conflict with the provisions of Section 14 (2) of the Arbitration Act with regard to the giving of notice of the filing of the award. When Section 54(2) does not give power to the State Government to lay down the procedure how the award when received from the Arbitrator shall be dealt with by the Civil Judge, there must be compliance of the corresponding provisions of Section 14(2) of the Arbitration Act. 15. In this connection it may be observed that the omission on the part of the Arbitrator to give notice to the parties of the making and signing of the award shall invariably amount to a mere irregularity in case notice of the filing of the award is subsequently given to them. Arbitrators take no further action after the making and signing of the award. The communication of the information that the award has been made and signed merely enables the parties to move the court u/s 14(2) of the Arbitration Act for the filing of the award. But the Arbitrators exercising jurisdiction under the Act themselves transmit the record of the case (including the award) to the Civil Judge (vide Rule 63(7) of the Rules, i.e. file the award in court as contemplated by Section 14(2) of the Arbitration Act; and no occasion can ever arise for a party to move an application u/s 14(2) of the Arbitration Act for filing of the award. In other words, no party can suffer an injury as a result of the Arbitrator not giving notice to the parties of the making and signing of the award. 16. In other words, no party can suffer an injury as a result of the Arbitrator not giving notice to the parties of the making and signing of the award. 16. However, the giving of the notice of the filing of the award is necessary to enable the aggrieved party to file an objection to the award, i. e. to have it set aside or remitted for reconsideration. Unless such a notice is given no decree tan be passed on the basis of the awaid, considering that objection to the award can be filed any time, in any case, within the prescribed period of the date of knowledge of the filing of the award. 17. To sum up, that part of Rule 63 of the U.P. Consolidation of Holdings Rules which enables the Civil Judge to pass a decree on the basis of the award, or to set aside the award, or remit it for reconsideration without serving notice of the filing of the award on absentee parties is not valid; and it is necessary for the Civil Judge to serve a notice of the filing of the award on the absentee parties also. As already mentioned above, no such notice appears to have been served on Binda. If such be the case, his objection to the award had to be heard and disposed of on merits. Both the courts below have thus failed to exercise the jurisdiction vested in them and this Court can pass a suitable order in exercise of the revisional jurisdiction. 18. The revision is hereby allowed and the orders of both the Civil Judge and the District Judge in appeal are set aside. Both the applications, one for setting aside the exparte order and the other, an objection to the award, shall now be disposed of afresh in accordance with the law. Costs on parties.