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2000 DIGILAW 778 (PNJ)

Harbans Singh And Ors. v. Sarbjit Singh And Ors.

2000-07-21

M.L.SINGHAL

body2000
Judgment M.L.Singhal, J. 1. Vide order dated 22.7.88 Sub Judge 1st Class, Tarn Taran ordered the award delivered by the Arbitrator dated 30.8.1985 to be made rule of the Court while dismissing the objections of Harbans Singh etc. in default filed to the award being made rule of the Court. As a sequel to this order dated 22.7.88, the same day itself, it was ordered that award Ex.CA of Pal Singh Arbitrator dated 30.8.85 is made rule of the Court. It was Misc. No. 34 of 1985 titled Sarbjit Singh and Ors. v. Harbans Singh and Ors. on the file of Sub Judge 1st Class, Tarn Taran in which the said orders were passed. 2. Not satisfied with the decree dated 22.7.99 of Sub Judge 1st Class, Tarn Taran. Harbans Singh etc. went in appeal. Appeal was dismissed by Additional District Judge, Amritsar vide order dated 6.9.90. 3. Still not satisfied, Harbans Singh etc. have come up in revision to this Court. 4. I have heard the learned counsel for the parties and have gone through the record. 5. Facts. There is an agreement dated 2.12.76 to sell land measuring 20 killas with Sarbjeet Singh, Wasan Singh, Prem Singh sons of Rattan Singh and Piaro wife of Rattan Singh at the rate of Rs. 7000/- per killa alleged to have been executed by Atma Singh. As per Sarbjit Singh etc., Atma Singh had received Rs. 40,000/- as earnest money. He was to execute sale deed till 22.12.83. As per Sarbjit Singh etc. Atma Singh died before the arrival of the stipulated date for execution of sale deed. Harbans Singh etc. sons and widow of Atma Singh refused to execute sale deed in their favour. Sarbjit Singh etc. put in application before the Sub Registrar saying that they are ready with the remaining sale money with a view to obtaining sale deed from Harbans Singh etc. but Harbans Singh etc. have not turned up. Sarbjit Singh etc. swore affidavit to this effect before Executive Magistrate, Tarn Taran. Sarbjit Singh etc. filed suit for specific performance against Harbans Singh etc. namely CS No. 46/84 in which Pal Singh was appointed as arbitrator to adjudicate the points of difference between the parties. Pal Singh gave award Ex.CA dated 30.8.85 which sought to call upon Harbans Singh etc. to execute sale deed in favour of Sarbjit Singh etc. Sarbjit Singh etc. filed suit for specific performance against Harbans Singh etc. namely CS No. 46/84 in which Pal Singh was appointed as arbitrator to adjudicate the points of difference between the parties. Pal Singh gave award Ex.CA dated 30.8.85 which sought to call upon Harbans Singh etc. to execute sale deed in favour of Sarbjit Singh etc. in accordance with agreement Ex.Al dated 2.12.76. Shri Pal Singh, Arbitrator believed this agreement as genuine. He believed the version of Sarbjit Singh etc. that they had paid Rs. 40,000/- as earnest money to Atma Singh. He directed Harbans Singh etc to execute sale deed in favour of Sarbjit Singh etc within a month of 30.8.85. He directed Sarbjit Singh etc. to pay the remaining sale money to Harbans Singh etc. within one month of 30.8.85 so that sale deed could be executed. It was also directed that if sale deed was not executed. Sarbjit Singh etc. could deposit the remaining sale money in court and the sale deed will be got executed in their favour through the process of the Court. Shri Pal Singh Arbitrator put in his award in court on 31.8.85. Harbans Singh etc. put in objections to the award being made rule of the court. It was stated that it is an exparte award obtained by Sarbjit Singh etc. through fraud, misrepresentation and without disclosing the real facts of the case. There was no proper service either on them (Sarbjit Singh etc.) or their previous attorney Shri Gurbhag Singh. Sarbjit Singh etc. did not disclose that power of attorney in favour of Gurbhag Singh had been cancelled and instead Mohan Singh had been appointed. Atma Singh never executed any agreement to sell the suit land to Sarbjit Singh etc. He never came to India between the year 1975-77. He died in 1981. When he never came to India during the year 1975-77, how could agreement dated 2.12.76 be imputed to have been executed by him. Sohan Singh, Avtar Singh sons of Atma Singh mortgaged the land in the year 1981. If there was any agreement to sell the land, how mortgage deed could be executed. Previous general power of attorney Shri Gurbhag Singh was also in England during those days. As such, he could not be present in arbitration proceedings. Sohan Singh, Avtar Singh sons of Atma Singh mortgaged the land in the year 1981. If there was any agreement to sell the land, how mortgage deed could be executed. Previous general power of attorney Shri Gurbhag Singh was also in England during those days. As such, he could not be present in arbitration proceedings. It was urged that if the award is allowed to hold the field, there will be grave injustice to them, in as much as, they would stand condemned unheard. Sarbjit Singh etc. contested the objections. It was denied that award was obtained through fraud and mis-representation. No notice was given to the arbitrator that power of attorney in favour of Gurbhag Singh had been cancelled. No notice was given to the arbitrator that instead Mohan Singh had been appointed power of attorney. If no notice was given to the arbitrator of these facts, how could arbitrator be expected to give notice either to Gurbhag Singh or Mohan Singh. 6. Following issues were framed: 1. Whether the award is liable to be set aside on the grounds mentioned in the objection petition? OP Objector 2. Whether the objectors are within limitation? OP Objector. 3. Relief. 7. Objectors examined Mohan Singh, Gurbhag Singh and Banta Singh in support of the objections. 8. Sarbjit Singh etc. examined Rattan Singh in support of the award. 9. Learned counsel for the petitioners i.e. Harbans Singh etc. submitted that petitioners had put in objections to the award being made rule of the Court and they had led evidence to substantiate those objections. They had examined Mohan Singh son of Gurbax Singh, Gurbhag Singh son of Fateh Singh and Banta Singh son of Ujagar Singh OWs. Respondents had also examined Rattan Singh AW1. Petitioners had stated inter alia in their objections that Atma Singh never came to India in the years 1975 to 1977 and, therefore, the agreement to sell alleged to have executed by him dated 2.12.76 was false and forged and that it was not executed by him. With a view to prove these objections, they had moved an application for additional evidence on 13.10.87 that they be allowed to produce Shir R.S. Bal, Handwriting and Finger Print Expert, Amritsar with a view to show that the said agreement was not signed by him and that the said agreement was false and forged. With a view to prove these objections, they had moved an application for additional evidence on 13.10.87 that they be allowed to produce Shir R.S. Bal, Handwriting and Finger Print Expert, Amritsar with a view to show that the said agreement was not signed by him and that the said agreement was false and forged. It was submitted that when the petitioners had stoutly stated that this agreement was false and forged and had never been signed by Atma Singh, their evidence should not have been scuttled or at least their objections should not have been dismissed in default but disposed of on merit on consideration of evidence that had come on record. It was submitted that the order dated 22.7.88 passed by the Sub Judge 1st Class, Tarn Taran whereby the award was ordered to be made rule of the court has brought about serious mis-carriage of justice. 10. It was next submitted by the learned counsel for the objectors that they filed appeal against the dismissal of these objections by Sub Judge 1st Class, Tarn Taran and the Additional District Judge, Amritsar was ill advised while dismissing the objections with the observations that this was an appeal against the decree and appeal should have accompanied by the decree appealed from. It was submitted that it was in fact not an appeal against the award being made rule of the court. In fact, it was an appeal against the dismissal of the objections in default and if dismissal of the objections in default were set aside, the direction that award be made rule of the court would have fallen to the ground. It was submitted that this appeal fell within the ambit of section 39 of the Arbitration Act, 1940. Section 39 of the Arbitration Act, 1940 reads as follows: 11. Appealable orders (1) An appeal shall lie from the following orders passed under this Act (and from no other) to the court authorised by law to hear appeals from original decree of the court passing the orders: An order (i) superseding an arbitration. (ii) on an award stated in the form of a special case. (iii) modifying or correcting an award. (iv) filing or refusing to file an arbitration argument. (v) Staying or refusing to stay legal proceedings where there is an arbitration agreement. (vi) setting aside or refusing to set aside an award. (ii) on an award stated in the form of a special case. (iii) modifying or correcting an award. (iv) filing or refusing to file an arbitration argument. (v) Staying or refusing to stay legal proceedings where there is an arbitration agreement. (vi) setting aside or refusing to set aside an award. Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court. (2) No second appeal shall be from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the (supreme Court). 11. It was submitted that appeal before ADJ was against the order refusing to set aside the award and fell within the ambit of Section 39 (1) Clause (vi) of the Act. It was submitted that in any case, the order passed by Sub Judge 1st Class, Tarn Taran dated 22.7.88 affirmed in appeal by Additional District Judge, Amritsar was bad in law. In as much as, Sub Judge should not have dismissed the objections in default. He should have disposed of the objections on the basis of evidence that had come on record particularly when the respondents had closed their evidence on 31.5.88. It was submitted that where is the rebuttal by the respondents to this part of the statement of Gurbhag Singh OW1 where he has stated that Atma Singh never came to India in 1976. He came to India for the last time in the year 1970 or 1971. 12. In my opinion, Sub Judge 1st Class, Tarn Taran should not have dismissed the objections in default and forthwith made award rule of the court. He should have disposed of the objections on merit when evidence had come on the record on the issue. "Whether the award was liable to be set aside on the grounds mentioned in the objection petition?" It was all the more necessary for this course to have been adopted when the objectors had denied execution of this agreement by Atma Singh and had submitted that the agreement was false and forged and the same was not signed by him as he was in England those during days. 13. 13. Learned counsel for the respondents, on the other hand, submitted that no appeal was competent against the order dated 22.7.88 of Sub Judge 1st Class, Tarn Taran dismissing the objections in default and making the award rule of the Court under section 39 of the Arbitration Act, 1940 as the order appealed against did not fall within any of the clause of section 39 of the Arbitration Act, 1940. In support of this submission, he drew my attention to Puppalla Ramulu v. Nagidi Appalaswami and Ors., AIR 1957 Andhra Pradesh 11, Bejoy K. Swaika v. Shyam Sunder Swaika and Ors., AIR 1977 Calcutta 455 and Nilkantha Sidramappa Ningashetti v. Kashinath Somanna Ningashetti and Ors., AIR 1962 S.C. 666. 14. In Puppalla Ramulus case (supra), it was held that section 14(2) can apply only to a case where the help of the Court is sought for getting the award into Court by calling upon the arbitrators to do it. Where the award is in Court and the only relief asked for is the passing of a decree in terms of that award, the case falls under section 17. No appeal is provided in case of dismissal of such application unless it comes under any of the exceptions specified therein and the only remedy is a revision petition. An appeal is creature of a statute and the right of appeal cannot be extended by implication. Therefore when the legislature thought fit to provide in section 39 (1) for appeals only in six cases, it is beyond the scope of a Court to confer a right of appeal in other cases by inference. Assuming an appeal is competent the right of the High Court to exercise its revisional jurisdiction is not taken away to correct errors that come to its notice under section 115, Civil P.C. though it would hesitate to do so normally. 15. In Bejoy K. Swailas (supra), it was held that "application for setting aside the award made by the Umpire was dismissed by the Court. The Court, thereafter, directed the award to be registered, Court had jurisdiction to pass such order and that was not appealable under section 39 read with section 41 of the Arbitration Act. Even if the order was passed in the suit, it did not determine any of the rights of the parties finally. The Court, thereafter, directed the award to be registered, Court had jurisdiction to pass such order and that was not appealable under section 39 read with section 41 of the Arbitration Act. Even if the order was passed in the suit, it did not determine any of the rights of the parties finally. Hence such order is not appealable under Cl-15 of the Letters Patent." 16. In Milkantha Sidramappa Ningashettis case (supra), it was held that "when no party filed an objection praying for the setting aside of the award, no question of refusing to set it aside can arise and therefore no appeal is maintainable under section 39 (1) (vi) which allows an appeal against an order refusing to set aside an award, against the order of the court ordering that the award be filed. 17. Learned counsel for the respondents submitted that no appeal lay under section 39 of the Act as this was not an order merely dismissing the objections in default but an order for award being made rule of the Court. Decree was drawn in terms of the award and, therefore, the appeal was competent under section 17 of the Arbitration Act, section 17 of the Arbitration Act reads as follows:- " Judgment in terms of award - Where the court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the court shall, after the time for making an application to set aside the award has expired or such application having been made after refusing it, proceed to pronounce judgment according to 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." 18. It was submitted that to arbitration proceedings the provisions of Civil Procedure Code apply, As per Order 41 Rule 1 CPC, every appeal shall be preferred in the form of memorandum signed by the appellant or his pleader and presented to the Court and that the memorandum shall be accompanied by decree appealed from (until the appellate court dispenses therewith) and the judgment on which it is founded." It was submitted that in this case the appellant had not filed copy of the decree nor they had applied that the filing of the copy of decree be dispensed with unless it was received by them, no appeal was competent in the absence of the copy of the decree in support of this submission, he drew my attention to Jagat Singh Bhargava v. Jawahar Lal Bhargava and Ors., AIR 1961 S. C. 832 where it was held that "requirement that certified copy of the decree should be filed along with the memorandum of appeal is mandatory, and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent." He drew my attention to Maghi Singh v. Jhagar Singh, 1983 (1) All India Land Laws Reporter 114 where it was held that "where appeal was filed without certified copy and there was note given on the appeal that certified copy would be filed later on and. no application had been filed seeking dispensing with the requirement of certified copy, appeal would be taken to have not been properly filed." He drew my attention to Ram ,Nath v. Kanhya Lal and Anr., AIR 1967 Pb. 204 where also, this view was taken. 19. It is true that appeal has to be accompanied with the certified copy of decree. Without certified copy of the decree, appeal would be incomplete, defective and incompetent. 20. Learned counsel for the respondents next submitted that the objections were dismissed in default. There was no decision on merit and, therefore, the petitioners could apply to the same court which dismissed the objections in default for restoration of the objections or else, the petitioners could treat the dismissal of the objections in default of their appearance and the award being made rule of the court and decree being passed in terms of the award to be an exparte decree. Petitioners could apply for setting aside this exparte decree to the same court. Petitioners could apply for setting aside this exparte decree to the same court. In support of this submission, he drew my attention to M/s Bhagwan Dass Bros. v. Ghulam Ahmed Dar and Ors., (1992-1)101 P.L.R. 20 where it was held that "where after objections to the award the objection or his counsel is unable to appear when the objections are taken up for hearing and if the application containing the objections is dismissed resulting in the award being made a rule of the court and a decree being prepared in terms of the award then it may be difficult to accept the absolute proposition in law that the provisions of Order 9 Rule 13 would not apply or for that matter that such a decree would not be in the nature of an exparte decree." 21. In my opinion, that was one remedy which the petitioners could resort to, to have the award having been made rule of the court set aside. 22. In this case, no decree appears to have been drawn up on 22.7.88. Decree was drawn up some where on 12.8.88 or thereafter as the stamp paper on which the decree was drawn up purports to have been purchased on 12.8.88. Petitioners applied for the certified copy of the following order: "The case has been repeatedly called since morning. It is now 3.45 P.M. As none has cared to come present on behalf of the objector, the objection petition is dismissed in default and on resultantly, the Award of Pal Singh Arbitrator dated 30.8.85 is made rule of the court, that has been exhibited as Ex.CA for the facility of its identification. The stamp paper of the requisite value be supplied by the beneficiary i.e. respondents and thereafter the decree sheet be drawn up and the file be consigned to the record room." 23. This order in an essence one dismissing the objections and, therefore, appeal under section 39 (1) (vi) was competent for setting aside the dismissal of objections. Objectors had prayed through these objections to set aside the dismissal of objections, It was an order refusing to set aside that award. It was submitted by the learned counsel for the respondents that agreement was executed by Atma Singh on 2.12.76 for sale of land measuring 20 killas. We are in the year 2000. Sarbjit Singh etc. respondents are in doldrums. It was submitted by the learned counsel for the respondents that agreement was executed by Atma Singh on 2.12.76 for sale of land measuring 20 killas. We are in the year 2000. Sarbjit Singh etc. respondents are in doldrums. So far, they have not been able to obtain specific performance of agreement, which was allowed in their favour by the arbitrator in the year 1985. It was submitted that it would be inequitable if the objections are remitted for being decided afresh. 24. Appeal filed by the objectors before the Additional District Judge is viewed as one under section 39 (1) (vi) of the Arbitration Act, which was competent without the certified copy of the decree. When the objectors had stoutly submitted that Atma Singh never visited India in the year 1976 and that this agreement was not executed by him and it was false and forged, the court should have decided the objections on merit on the basis of the evidence that had come before it and not dismissed the objections in default. So, this revision is allowed. Order dated 6.9.90 passed by Addl. Distt. Judge, Amritsar is set aside. Order dated 22.7.88 passed by Sub Judge 1st Class, Tarn Taran dismissing the objections in default and making the award the rule of the court is also set aside and the matter is remitted to the Addl. Civil Judge, Senior Division, Tarn Taran with a view to his deciding the objections on merit afresh.