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2009 DIGILAW 33 (JK)

Nazir Ahmed Shah v. Halima (Mst. )

2009-02-04

MOHAMMAD YAQOOB MIR

body2009
1. By medium of this Revision petition orders dated 2.6.2008 and 18.6.2008 passed by Learned 2nd Additional Munsiff Srinagar, in the suit captioned Mst Haleema v. Nazir Ahmad Shah and others are impugned. For appreciating the controversy in its right direction it shall be quite relevant to notice the precise factual matrix of the case. One Ghulam Nabi Shah has died, survived by two daughters and two sons. The deceased has among other properties left behind one Kanal of land as well as three Storeyed building with Attic constructed thereon. The said building is used as a hotel and is run under the style `Sterling Hotel’. The said hotel building was occupied by Government Polytechnic College for Women during the years 1992-1995. Thereafter was leased out to State Forest Corporation and remained under its occupation from the year 1996 to the year 2004. Thereafter is run as a hotel by the parties. 2. Regarding accounts, dispute arose. Suit titled Mst. Haleema v. Nazir Ahmad Shah and others stand instituted before the Court of 2nd Additional Munsiff for rendition of accounts and perpetual injunction. Alongside suit, application for appointment of receiver also stand filed. During the course of the proceedings of the suit respondent No.2 (defendant No.2) filed the written statements on 17.6.2008, at the same time counsel for the parties agreed for appointing advocate Ghulam Hassan Masoodi as arbitrator. The order recorded on 17.6.2008 is in Urdu version. The English version of which reads as under: "17.6.2008: Counsel for plaintiff present. Defendant No. 1 has already filed written statement. Counsel for defendant No.2 today filed written statement, be made part of the file. Defendant No. 3 has already been given up, fixed for statement of parties. At this stage, with the consent of counsel for the parties, Advocate Ghulam Hassan Masoodi is appointed for arbitration. Detailed order in English version is annexed. Suit after award is filed by the arbitrator, be put up." 3. In the said order it is mentioned that detailed order in English version is attached, but the detailed order in English version is dated 18.6.2008, which reads as under: "During the course of proceedings Learned counsel for defendant No.1 Mr. Detailed order in English version is annexed. Suit after award is filed by the arbitrator, be put up." 3. In the said order it is mentioned that detailed order in English version is attached, but the detailed order in English version is dated 18.6.2008, which reads as under: "During the course of proceedings Learned counsel for defendant No.1 Mr. Syed Maqbool Ahmad Qadiri has submitted in the open court, that a suit was pending between the parties before the court of Principal District and Sessions Judge Srinagar, wherein by the consensus of parties the matter alongwith all allied matters have been referred to arbitrator Mr. Ghulam Hassan Masoodi (Advocate) for arbitration and Learned counsel for the defendant No.1 has submitted that this suit be also referred to the same arbitrator for arbitration. Learned counsel for the defendant No.2 has agreed with the statement of the Learned counsel of the defendant No.1, for referring the matter to the arbitrator. The Learned counsel for the plaintiff submits that though the plaintiff was not the party to the suit, wherein Ghulam Hassan Masoodi (Advocate) has been appointed as arbitrator, still he agrees and if this matter is also referred for arbitration to Mr. Ghulam Hassan Masoodi Advocate. By consensus of Learned counsel for the parties this suit is also referred for arbitration to the arbitrator Mr. Ghulam Hassan Masoodi (Advocate)." 4. Learned Munsiff has not stopped there but has also opined about the merit of the matter by stating that the parties are entitled to their respective shares and has further decided the application for appointment of receiver, whereunder has appointed the arbitrator as receiver. Further has also stated that the Commissioner appointed vide order dated 2.6.2008 shall furnish requisite report to the arbitrator. 5. Learned Munsiff in an arbitrary manner at the back of the petitioner on 2.6.2008 has appointed the Commissioner Mr. Bashir Ahmad, who has also been asked to avail the Police assistance, when there was no prayer for Police assistance. 6. The reference to the suit as was pending before the Learned District Judge, is also required to be taken note of, (titled Qayoom Shah v. State and others) wherein dispute related to the individual shares of the plaintiff and defendants No. 5 and 6 therein ( i.e. Abdul Qayoom Shah, Nazir Ahmad Shah and Masood Ahmad Shah). 6. The reference to the suit as was pending before the Learned District Judge, is also required to be taken note of, (titled Qayoom Shah v. State and others) wherein dispute related to the individual shares of the plaintiff and defendants No. 5 and 6 therein ( i.e. Abdul Qayoom Shah, Nazir Ahmad Shah and Masood Ahmad Shah). Learned District Judge vide order dated 22.5.2008 has recorded that the plaintiff and defendants No. 5 and 6 made a statement that they have to decide to refer the controversy involved in the suit and allied disputes for arbitration to Mr. Ghulam Hassan Masoodi ( Advocate). It is also recorded that the parties being legal heirs of late Ghulam Nabi Shah are entangled in disputes relating to their shares in the other properties left by their deceased father. There is also disagreement regarding the apportionment of income generated by the Cinema Complex and (other properties). 7. It is in the context of the order dated 22.5.2008 petitioner (defendant No.1) had stated that in the suit pending before the Learned District Judge, with the consensus of the parties matter therein alongwith allied matters have been referred for arbitration, which means that the dispute regarding `Shah Cinema’ as well as other allied properties, which include the `Hotel Sterling’ have been referred for arbitration. 8. Though the appearing counsel for the parties laid much stress on the question of appointment of receiver and both tried to highlight as to what was required to be done by the Learned Munsiff while passing order viz-a-viz appointment of receiver. 9. The order dated 2.6.2008, whereunder Commissioner has been appointed has been passed at the back of the petitioner, it is quite strange that the main suit was listed on 2.6.2008, parties were present, application for appointment of Commissioner was not presented, otherwise would have been reflected in the interim order recorded on 2.6.2008 in the main suit. Learned Munsiff at the back of the petitioner on the same date should not have passed the order on the application for appointment of Commissioner. Further more Learned Munsiff has gone a step ahead by permitting the Police assistance and direction has been issued to the SHO to provide assistance, when in the application for appointment of Commissioner no prayer for police assistance has been made. On both counts the order appointing Commissioner is bad in the eye of law. 10. Further more Learned Munsiff has gone a step ahead by permitting the Police assistance and direction has been issued to the SHO to provide assistance, when in the application for appointment of Commissioner no prayer for police assistance has been made. On both counts the order appointing Commissioner is bad in the eye of law. 10. The order dated 18.6.2008 is also passed in transgression of the power. It is strange that on 17.6.2008 interim order has been recorded to the effect that the detailed order in English is annexed, when the detailed order in English is dated 18.6.2008. 11. It is also strange that the parties had agreed for referring the matter in dispute to the arbitrator, as the arbitrator had already been appointed for settlement of the disputes relating to Shah Cinema and other properties left by the deceased Ghulam Nabi Shah. So there was no question of appointing the arbitrator afresh. Learned Munsiff should have recorded that since dispute relating to Shah Cinema and other properties of the deceased stand referred to the arbitration, so the parties shall approach the arbitrator and the arbitrator had to deal with all the disputes. 12. Not only this, even Learned Munsiff has gone a step ahead by appointing the arbitrator as receiver. To appoint receiver is a harshest measure could not be appointed unless parties were given proper opportunity of being heard. It was recorded in the order dated 17.6.2008 that the matter already stand referred to arbitration, the Learned Munsiff on 18.6.2008 has passed the detailed order illegally and arbitrarily. It is quite strange that Learned Munsiff has also asked SHO to provide assistance to the arbitrator when the same was not prayed for and was otherwise unwarranted. Even if Learned Munsiff could be held to have power to pass orders on application for appointment of receiver, still respective parties should have been given proper opportunity. It appears that petitioner has been kept in dark as on 17.6.2008, when interim order was recorded in Urdu language, only thing which is mentioned is regarding appointment of arbitrator, then on 18.6.2008 at the back of the petitioner receiver has been appointed. In any case the order has to cause failure of justice. 13. Above position apart, even otherwise the important question for consideration is as to whether Learned Munsiff had any jurisdiction to pass the order i.e. to appoint the receiver. In any case the order has to cause failure of justice. 13. Above position apart, even otherwise the important question for consideration is as to whether Learned Munsiff had any jurisdiction to pass the order i.e. to appoint the receiver. Arbitration is governed by Arbitration and Conciliation Act (hereinafter for short referred to) `The Act’. In terms of Section 5 of the Act Judicial intervention has been minimized. The object is to encourage expeditious and less expensive settlement of the dispute. 14. When the matter is referred to arbitrator and the party require any interim relief, same is governed by Section 9 of the Act. Even interim injunction and appointment of receiver can be prayed for. The question which arises, is as to which court can grant such interim order. In terms of Section 21 (e) of the Act, the court means the Principal Court of original jurisdiction in the District and includes High court in exercise of its ordinary original Civil jurisdiction, but does not include any Civil court of a grade inferior to such principle Civil Court, this position is controlled by Section 42 of the Act, but Section 42 of the Act is not applicable, because the dispute viz-a-viz property left behind by the deceased Ghulam Nabi Shah stand referred to arbitration by the Learned Principal District Judge Srinagar, as embodied in his order dated 22.5.2008. So if any, interim measure in terms of Section 9 of the Act was required, application could be filed before the Learned Principal District Judge Srinagar. On these premises jurisdiction of Learned Munsiff was ousted. He had only to close the proceedings of the suit, as the matter stood referred to the arbitrator or should have observed that the matter referred for arbitration, hence proceedings of the suit closed. 15. Refusal or grant of interim measure in terms of Section 9 of the Act is appealable, as the appeal is prescribed under Section 37 of the Act against such orders. But the order passed by Learned Munsiff is in exercise of jurisdiction not vested in him. 16. The award as shall be made by the arbitrator to whom dispute regarding shares relating to Shah Cinema and other allied properties stand referred is required to be filed before the court of Principal District Judge. 17. Learned Munsiff has exercised the jurisdiction not vested in him. 16. The award as shall be made by the arbitrator to whom dispute regarding shares relating to Shah Cinema and other allied properties stand referred is required to be filed before the court of Principal District Judge. 17. Learned Munsiff has exercised the jurisdiction not vested in him. The passing of the order viz-a-viz appointment of Commissioner as well as appointment of receiver is totally beyond jurisdiction, has to cause failure of justice, so are unsustainable, therefore set aside. 18. In order to avoid any future confusion, it is made clear that the parties shall be at liberty to move the court of Principal District Judge Srinagar for grant of interim measure, if warranted, as permissible under Section 9 of the Act. It is also made clear that appointed arbitrator Mr. Ghulam Hassan Masoodi shall settle the disputes as referred for arbitration by the Learned Principal District Judge, which include the suit property i.e. Hotel Sterling being one of the property left behind the deceased Ghulam Nabi Shah. The arbitrator shall ensure participation of all the interested parties in the arbitration. The award as shall be made, shall be open to challenge to the aggrieved party before the court of Principal District Judge Srinagar, as permissible under chapter VII i.e. Section 34 of the Act. 19. Both the orders dated 2.6.2008 and 18.6.2008 to the extent under challenge are set aside. Revision petition succeeds and is disposed of as detailed hereinabove. Copy of the order alongwith Subordinate record be sent back for follow up action. Copy of the order be also sent to Learned Principal District Judge Srinagar and also sent to arbitrator for information.