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2001 DIGILAW 453 (MP)

Maharaj Singh v. Ramratan

2001-06-25

S.P.KHARE

body2001
Short Note This is defendant's second appeal under section 100, CPC. Arguments on the question of admission heard. There is a concurrent finding of fact of the trial Court and the first appellate Court that the house in dispute and the land bearing Khasra No. 43 on which it is standing belong to plaintiff Ramratan as these were allotted to his father in the family partition and defendant Maharaj Singh occupied the house three years prior to the institution of the suit in the year 1985 with the permission of the plaintiff. On these findings the suit for possession has been decreed. In this second appeal it has been argued on behalf of the appellant that the substantial question of law which arises for decision is whether the suit was barred under section 32 of the Arbitration Act, 1940 in view of the 'Panch Faisla' dated 25.9.1973 (Ex.D-1). This question was the subject matter of Issue No.1 before the trial Court. The finding on this issue is that this 'Panch Faisla' has not been proved. It has also been observed by the trial Court that it is unstamped, unregistered and it was not made a rule of the Court. The first appellate Court affirming these findings has further held that this 'Panch Faisla' does not bear the signature of the plaintiff. In the written statement, there is no plea that there was any 'arbitration agreement' between the parties and in pursuance of that agreement, the dispute was referred to the arbitrators. No such arbitration agreement was produced before the trial Court. Therefore, there was neither any pleading nor any proof regarding the arbitration agreement between the parties. According to section 2(a) an 'arbitration agreement' means a written agreement. It is well settled that an arbitration agreement must be in writing. A 'Panch Faisla' without a written arbitration agreement between the parties cannot be said to be an award under the Arbitration Act, 1940. It is the arbitration agreement between the parties which confers jurisdiction on the arbitrators to decide the dispute between the parties. It is through the arbitration agreement that the parties choose to abide by the decision of the arbitrators, a forum of their own choice, displacing the jurisdiction of the Courts established by law. Thus, a written arbitration agreement is a sine qua non for the arbitration proceedings under the Arbitration Act, 1940. It is through the arbitration agreement that the parties choose to abide by the decision of the arbitrators, a forum of their own choice, displacing the jurisdiction of the Courts established by law. Thus, a written arbitration agreement is a sine qua non for the arbitration proceedings under the Arbitration Act, 1940. It has been held by the Supreme Court in U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd. ( AIR 1996 SC 1373 ) that section 2(a) of the Arbitration Act, 1940 envisages a written agreement for arbitration and that written agreement to submit the existing or furture differences to arbitration is a condition precedent and therefore, the reference to the arbitrators was clearly illegal. In Chander Nath Ojha v. Suresh Jhalani (1999) 8 SCC 628 it has been observed that the requirement of law is that arbitration agreement should be in writing. That is also the view taken by the Supreme Court in K.K. Modi v. K.N. Modi (1998) 3 SCC 573 . The substantial question of law in a second appeal cannot arise in vacuo. It must emerge from the pleadings, the evidence and the findings recorded by the Courts below. In the present case there was absolutely no pleading in the written statement that there was a written arbitration agreement between the parties and in pursuance of that agreement, the dispute was referred to the panchas. It appears that an attempt was made to get the dispute settled through the intervention of certain persons but there was no arbitration or 'award' under the Arbitration Act, 1940. Both the Courts have held that this 'Panch Faisla' was not accepted by the parties and therefore, it is not a case of compromise or settlement between the parties to the dispute. Reliance has been placed on Shyamsingh v. Prahaladsingh 1961 JLJ 715 = 1961 MPLJ 745. In that case it was found that there was an arbitration agreement between the parties. By an amendment in the plaint, the award in question was challenged on several grounds. In that situation it was held that section 32 of the Arbitration Act, 1940 was attracted as the amended plaint raised the question for decision as to the existence of the arbitration agreement and of the award and also of the validity of the same. By an amendment in the plaint, the award in question was challenged on several grounds. In that situation it was held that section 32 of the Arbitration Act, 1940 was attracted as the amended plaint raised the question for decision as to the existence of the arbitration agreement and of the award and also of the validity of the same. In this decision a reference was made to the earlier judgment in Nathulal v. Biharilal AIR 1952 Nagpur 65 in which it was laid down that a plaintiff who has been a party to an arbitration agreement and who has pushed the arbitration proceedings to an award in the hope of getting an award favourable to him cannot, after the award is made, get rid of it by filing a suit on the same cause of action by ignoring the award or impeaching its validity. This decision shows that there must be an arbitration agreement between the parties followed by a reference and an award to render the suit on the original cause of action as not maintainable. The next case relied upon by the learned counsel for the appellant is Satish Kumar v. Surinder Kumar AIR 1970 SC 833 in which it has been held that an award, which is on the face of it regular. is conclusive upon the merits of the controversy. An award possesses all the elements of vitality even though it has not been formally enforced and it may be relied upon in a litigation between the parties relating to the same subject matter. This decision also pre-supposes the existence of a valid arbitration agreement between the parties. The third case on which reliance has been placed is Biharilal v. Khuman Singh 1978 JLJ SN 6. It has been held in this case that no civil suit can lie to give effect to the 'Panch Faisla'. That is not the relief which the plaintiff is claiming in the present suit. The plaintiffs case was based on his own title and that has been upheld by the trial Court and first appellate Court. In the absence of a written arbitration agreement between the parties for reference of the dispute to the Panchas there could not be an award under the Arbitration Act, 1940. Therefore, such an award cannot be a bar to the maintainability of the regular civil suit by the plaintiff. In the absence of a written arbitration agreement between the parties for reference of the dispute to the Panchas there could not be an award under the Arbitration Act, 1940. Therefore, such an award cannot be a bar to the maintainability of the regular civil suit by the plaintiff. In the absence of pleading and proof, the substantial question of law sought to be raised by the appellant does not really arise. The appeal is, therefore. dismissed in limine.