Lakshmi Narain And Others v. Raghbir Singh And Others

1. In Civil Suit No. 48 of 1948 plaintiffs claimed injunction on their own behalf and on behalf of other shopkeeper of New Mandi, Hissar, ordering the defendants to remove encroachments made by them in the shamilat chowk. In that suit before evidence was examined the dispute between the parties was referred to the sole arbitration of Shri Joti Parshad of Hissar. On 9-8-1950, Shri Jyoti Parshad gave the award by which he ordered the removal of the encroachments.

2. Messrs Harnam Das Udami Ram, Om Parkash, Lakshmi Narain and Sheo Chand Rai objected to the award of the arbitrators.

3. In deciding the objections of Om Parkash the Court ordered that the award will be valid to far as it relates to Amar Nath though the award will not bind Om Parkash. In the objections of Messrs Harnam Das Udami Ram, Lakshmi Narain and Sheo Chand Rai, the Court saw no force which failed and were dismissed. In the result, the Court made the award rule of the Court and granted the plaintiffs decree in terms of award against the defendants except Om Parkash.

4. Prom the order passed by the Court of first instance Messrs Harnam Das-Udami Ram, Sheo Chand Rai and Jas Raj filed appeals in the Court of the Senior Sub Judge, Hissar. Those appeals failed and were dismissed with costs.

5. Messrs Harnam Das, Udami Ram and Lakshmi Narain are the applicants in Civil Revision No. 539 of 1951, Sheo Chand Rai is the applicant in Civil Revision No. 610 of 1951 while Jas Raj is the applicant in Civil Revision No. 178 of 1952.

6. On 4-1-1956, Mr. Kundan Lal Gosain under instructions from Jas Raj applicant withdrew Civil Revision No. 178 of 1952. On that statement Civil Revision No. 178 of 1952 was dismissed.

7. By this order I dispose of Civil Revision Nos. 589 and 610 of 1951.

8. Briefly summarised the facts giving rise to the present proceedings are these: In 1918, Shri Lakshmi Narain laid down the new Mandi Hissar. In that Mandi chowk shamilat was kept for the common use of the shopkeepers and residents of the Mandi. By award made on 3-3-1941, the encroachments on the shamilat chowk were either removed or compensation for encroachments was paid towards the joint fund.

9. On 12-8-1948, the plaintiffs instituted the suit out of which the present proceedings have arisen against 33 shopkeepers.

10. By application made on 30-8-1948 names of defendants 1, 27, 29, 30, 31, 32 and 36 were removed from the list of defendants as they nad removed the encroachments.

11. In these proceedings it is conceded that the building A1, B1, C1, D1, E1 and P1 was encroachment on the chowk shamilat. On 12-8-1948 Civil Suit No. 48 of 1948 was instituted. On 8-10-1949 Udami Ram purchased from Mt. Ram Piari the building which has been ordered to be demolished. On the purchase of the building Udami Ram joined the arbitration proceedings. In the proceedings before the arbitrator Udami Ram stated that the arbitrator may decide the dispute on the inspection of the spot.

12. In the previous arbitration proceedings Lakshmi Narain was ordered to pay Rs. 370/10/- on account of compensation to the common fund for the encroachment made. In the award given on 3-3-41 land measuring 12′-5″/12-11″×48″ was declared to be the property of Lakshmi Narain. By the award Shri Joyti Parshad Lakshmi Narain was ordered to demolish the encroachment made since 3-3-1941.

13. In proceedings before the arbitrator Mam Chand stated on 25-6-1950 that the firm Mam Chand-Kura Mal had sold shop No. 24 to Sheo Chand Rai. In the arbitration proceedings Sheo Chand Rai was summoned before the arbitrator.

14. On 2-7-1950, Sheo Chand Rai stated before the arbitrator that he would be satisfied with the decision of the arbitrator which he would give on the inspection of the spot.

15. Mr. Kundan Lal Gosain urges a double-barrelled objection to the validity of the award.

16. Firstly, it is said that a suit in which demolition of the building is claimed cannot be referred to arbitration. Secondly, it is said that the arbitration proceedings were vitiated inasmuch as “all the parties interested” had not applied in writing to the Court for an order of reference.

17. Mr. Kundan Lal Gosain urges that suits which granting of relief is a matter entirely within the discretion of the Court cannot be referred to arbitration.

18. In the cases upon which reliance is placed it has been said that disputes relating to restitution of conjugal rights, the genuineness of a will in probate proceedings, the appointment of a guardian of a minor or the question of insolvency cannot be referred to arbitration.

19. In my opinion, it is not necessary to discuss the authorities cited at the bar for on the language of Section 21 of the Arbitration Act 1940, it is impossible to support the proposition that a suit for mandatory injunction cannot be referred to arbitration.

20. In Fazal Rahman v. Mt. Zainab Bibi, AIR 1940 Lah 123 (A), Bhide J. said:

“The only ruling in point on which reliance has been placed in this respect is Muhammad Ibrahim Khan v. Ahmad Said Khan, ILR 32 All 503 (B). That ruling appears to be clearly distinguishable as the dispute in that case related to succession to the office of a mutwalli. It was pointed out that the appointment of a mutwalli is a relief-which would fall within the scope of Section 92 of the CPC, and consequently was not a matter which could be decided by a private arbitrator.”

21. In Hari Shanker v. Mt. Amraoti, AIR 1944 Lah 280 (C), Abdul Rahman J. said:

“* * * all the matters in dispute between the parties could be referred to arbitration even in a suit for restitution of conjugal rights although the authority to grant the final relief of restitution of conjugal rights could not be, according to the learned Judge, delegated to an arbitrator. This view was taken on the grounds of public policy and it is unnecessary to examine its correctness as that consideration does not arise in the matter of a declaration in regard to the validity or invalidity of an alienation.”

22. Again, there is ample authority that an objection to the award not taken within time in the Court of first instance cannot be permitted to be raised for the first time in appeal or revision. In the present case, the objection that the suit could not be referred to the arbitration of Shri Jyoti Parshad was neither taken in the Court of first instance nor taken in the Court of appeal.

23. In the circumstances, I overrule the objection that the dispute in the suit out of which the present proceedings have arisen could not be referred to arbitration.

24. Section 21 of the Arbitration Act, 1940 provides:

“Where in any suit all the parties interested agree that any matter in difference between them in the suit shall be referred to arbitration, they may at any time before judgment is pronounced apply in writing to the Court for an order of reference.”

25. In S. 21 of the Act the words “all the parties interested” mean parties interested in the specific dispute referred to arbitration and not in the subject-matter of the whole suit where the two are not identical.

26. Section 24 of the Act provides:

“Where some only of the parties to a suit apply to have the matters in difference between them referred to arbitration in accordance with, and in the manner provided by S. 21, the Court may, if it thinks fit so refer such matters to arbitration (provided that the same can be separated from the rest of the subject-matter of the suit) in the manner provided in that section, but the suit shall continue so far as it relates to the parties who have not joined in the said application and to matters not contained in the said reference as if no such application had been made, and an award made in pursuance of such a reference shall be binding only on parties who have joined in the application.”

27. In Civil Suit No. 48 of 1948 the plaintiffs claimed relief on behalf of themselves and on behalf of the other residents of the Mandi. That being so, it cannot be sustained that all persons interested in the dispute have not joined the reference. In any case, there were separate encroachments by Messrs Harnam Das, Udami Ram, Lakshmi Narain and Sheo Chand Rai. Those encroachments gave different causes of action to the plaintiffs to institute the suit out of which these proceedings have arisen.

28. In my opinion, the Courts below were right in thinking that cases of Harnam Das, Udami Ram, Lakshmi Narain and Sheo Chand Rai were separable from the cases of the other parties.

29. In Civil Revision No. 589 of 1951, it was urged that the reference to the arbitrator on behalf of Messrs Harnam Das, Udami Ram could not be made by Udami Ram.

30. In deciding this objection the Court of first instance found that Udami Ram was the manager of the joint Hindu firm. That finding was upheld in appeal.

31. In any case, from the sale deed it is plain that Udami Ram himself had purchased the property on 8-10-1949 from Sm. Ram Piari. In my judgment, the argument raised has no force.

32. On the facts summarised above, I maintain the award so far as the demolition of the properties is concerned.

33. No other point arises in Civil Revisions Nos. 589 and 610 of 1951. In the result, I dismiss with costs Civil Revisions Nos. 589 and 610 of 1951.

D.H.Z

34. Revisions dismissed.