Sagar Mull v. Hira Maharaj

Ross, J.:— This is an appeal against an order of the learned District Judge of Monghyr reversing a decision of the Munsif and remanding the suit for trial on the merits. The suit was brought by Plaintiff No. 1, Hira Maharaj, and his minor son against the six defendants who are said to be members of the Committee of the Lakhisarai Gausala. The suit was for specific performance of an agreement for sale of a plot of land entered into by the defendants with the Plaintiff No. 1 on the 18th of December 1920. The parties entered into an agreement to refer the matter to arbitration and a petition was presented on behalf of the minor plaintiff for leave to enter into this agreement and permission was granted by the Court. As the award was not submitted by the time limited by the Court, after several adjournments had been given, the arbitration was superseded on, the 27th of March 1921 and the case was fixed for hearing for the 30th. On that date another application was made by Plaintiff No. 1 and the defendants to refer the suit again to arbitration. This was granted and the same arbitrators were appointed and they submitted their award on the following day.

2. The Munsif passed a decree in accordance with the award and dismissed the suit. The learned District Judge held that the reference to arbitration was illegal inasmuch as no permission was granted to the minor plaintiff to enter into-the agreement by which the case was submitted to the arbitrators on the second occasion. He therefore set aside the decree and remanded the suit for trial on the merits. On behalf of the appellant, who is Defendant No. 6, the contentions are a first, that no appeal lay to the. District-Judge; secondly, that the question of permission to the minor plaintiff did not arise inasmuch as it was only Plaintiff No. 1 who asked for relief; thirdly, that no permission was necessary because O. 32, R. 7, does not control para. 1 off Sch. 2 to the Code; and, lastly, that even if permission was ordinarily necessary, it was not necessary in this case as Plaintiff No. 2 was joint with his father the karta of the family, and: was therefore represented by him.

3. On behalf of the respondents it is contended in the first place that even if no appeal lay to the District Judge he has passed a proper order such as the Court would have passed on an application by the plaintiff under S. 115 and, therefore, this Court should not interfere; secondly, that the supersession of the arbitration on the 27th of March cancelled all the proceedings in arbitration up to that date and it was necessary to obtain fresh permissions for the minor plaintiff to enter into an agreement to refer the suit to arbitrators: and thirdly, that permission was necessary because O. 32, R. 7, controls para. 1 of Sch. 2; and, therefore the reference to arbitration was without jurisdiction and the order passed by the District Judge was right.

4. Now para. 15 of Sch. 2 states the grounds on which an award can be set aside. These are for the trial Court to consider; and the ground now taken fell to be considered and was considered by that Court and it was decided that the award was not invalid on that ground. Under para. 16, therefore, the Court had to pronounce judgment according to the award and it did so. Cl. (2) of that paragraph states the grounds on which an appeal may be taken against such a decree viz., that it is in excess of the award and not in accordance with it. No such ground was taken before the District Judge and therefore no appeal lay. This is plain on the language of the section itself and the authorities are clear: Ghulam Khan v. Muhammad Hassan(1), Lutawan v. Lachya(2) and Khudi Ram Mahto v. Chandi Charan Mahto(3). The case which the learned District Judge has relied upon, Benodelal Pakrasi v. Pran Chandra Pakrasi(4) was decided in 1898 under the old Code and before the decision of the Judicial Committee and is no longer law. The learned counsel for the respondents did not attempt to support this part of the judgment and conceded that no appeal lay to the District Judge. But as the District Judge entertained and decided the appeal there is a second appeal to this Court. That second appeal must be decided according to law and the judgment of the District judge must be set aside.

5. As to the contention of the respondents that this Court should not interfere when a proper order has been made, this argument can be raised only in answer to an application for the Exercise of the revisional jurisdiction of the Court. This is not the case here; nor is there any application by the respondents against the order of the Munsif; consequently this point does not arise. Moreover, even if it did arise, this contention could not succeed because it rests on a pure technicality. The defect is formal only, because on the first reference to arbitration permission was accorded to Plaintiff No. 2; and there is no ground for supposing that it would have been refused on the second occasion.

6. But on the merits it is clear that the appellant is entitled to succeed. I do not propose to enter in the question whether O. 32, R. 7, controls para. 1 of Sch. 2—a question on which there has been much difference of opinion; nor need I discuss the argument that Plaintiff No. 1 represented Plaintiff No. 2 so as to make it unnecessary for the Court to grant permission to Plaintiff No. 2 to agree to arbitration. But the plaint itself shows—and the prayer is specific—that only Plaintiff No. 1 prayed for judgment. No relief was sought for Plaintiff No. 2 and he was in no way interested in the suit. The agreement of which specific performance was sought was entered into by the defendants with the Plaintiff No. 1 and he alone was entitled to enforce it.

7. On every ground I am of opinion that the decision of the learned District Judge is wrong and must be set aside. The appeal is therefore decreed with costs throughout and the decree of the District Judge is set aside and that of the Munsif is restored. The application in revision is dismissed.

8. Das, J.:— I agree.

9. Appeal allowed.