JUDGMENT

This revision petition is against an arbitrators' award to which objection was made in the lower Court but which was confirmed. The plaintiff in O.S No. 35 of 1929 on the file of the Court of the District Munsif of Madanapalle brought a suit against the defendant on, three items: (1) for 12 measures of paddy delivered by the plaintiff to the defendant's brother-in-law, the defendant having promised to pay for the same; (2) for a debt of Rs. 86-11-0 due by the defendant to the plaintiff in respect of tamarind and sugar-candy trade with regard to which the defendant executed a letter dated 25th August 1927; and (3) for three measures of Koru paddy cultivated in the manyam land of the plaintiff. The matter was referred to arbitrators who awarded the full sum to the plaintiff. Objections to the award were put in but were disallowed.

A preliminary objection has been raised that there is no power of revision in this Court in cases where the lower Court has confirmed the decision of the arbitrators and in support the well-known Privy Council case, Ghulam Khan v. Muhammad Hassan , is quoted. At first sight this seems to be a very strong case. The question of jurisdiction of the Court had been raised there as an issue but was referred with the rest of the suit to the arbitrators. The arbitrators having found wrongly on this point that the Court had jurisdiction, the Court accepted the award. It was held that as the arbitrators had jurisdiction to decide the law wrongly and the Court accepted the award, it could not be challenged in revision. But, if that case is looked into closely, it will be seen that the arbitrators' action had not fallen under any of the clauses of R. 15 of the Sch. II, Civil Procedure Code. Therefore the Court was bound to accept the award and did not act either without jurisdiction or with material irregularity in exercising its jurisdiction by doing so. This case has been considered in this connection in Debir-ud-din v. Amina Bibi where it was held “It cannot be laid down as a general rule that in no case in which an award has been filed and decree passed in accordance therewith can the High Court interfere under S. 115 Civil Procedure Code. Revision is permissible in cases in which the arbitrators or the Court may have exceeded their jurisdiction or acted with material irregularity in the conduct of the proceedings.” Similarly it was held—though the remark was obiter—in Aramanai Rajagopala v. Aramanai Rangasami with reference to the same case:

“There is no appeal against a decree based upon an award, but if it can be shown that the lower Court acted without jurisdiction or acted with material irregularity in dealing with the award, it would be open to the High Court on a proper case being made out to revise such an order.”

A number of cases have been quoted before me in which the High Court has so interfered. One of them Delhi Cloth and General Mills Co. v. Firm Kidari Pershad Chhedi Lal (4) is on its facts a close parallel to the present. There, an arbitrator received documents from one party and based his award upon those documents without giving the other party an opportunity of seeing those documents and of meeting the inferences deducible therefrom. It was held that a revision lies against a decree passed upon an award, where the Court which passed the decree has committed an error in procedure or has misused the jurisdiction. In R. Palavesam Chettiar…Plaintiff v. Narayana Aiyar…Defendant . (5) it was held that arbitrators cannot import their own personal knowledge unless empowered to do so. That is exactly the view taken in Neba Ram v. Khota Ram . In Ram Chandar v. Hans Ram it was held “where it appears from the award that the arbitrator in arriving at the decision was influenced by secret enquiry about the case made by him after recording the evidence and by the opinion of third persons about the merits of the case, his conduct amounts to judicial misconduct and vitiates the award.” In Merali Visram v. Sheriff Dewji the Privy Council case is also quoted and it was held, leave being given to convert the appeal into an application under S. 115 Civil Procedure Code, that the conduct of the arbitrators was so unauthorised with regard to procedure from first to last by any law that the Court could allow the application. I therefore overrule the preliminary objection.

Coming to the actual facts in the present case, the only objection to the award which is argued before me is the conduct of the arbitrators with regard to the alleged letter acknowledging the debt of Rs. 86-12-0. The petitioner (defendant) is one Savarala Venkatasubbayya. The disputed letter is signed ‘S’ in English and Venkatasubbayya in Telugu and this is very important in considering the conduct of the arbitrators. It is necessary here to quote the award on that point in full. It states as follows:

“We saw many letters written by the defendant himself:

1. Letter dated 24th September 1927 written to Venkatanarayana

2.””” 17-5-1927 to Ramayya.

3. ””” 27-8-1927”

4. ””” 12-9-1925”

The defendant admitted having written these letters. Therein in some the defendant has written x x x (S. Venkatasubbayya in Telugu) in some Savarala Venkatasubbayya (x x x x x x). When we made enquiries privately we ascertained that in the account maintained in the sundry bazaar of Meda Lakshminarayana in Kadiranathakota in the account of Savarala Venkatasubbayya at page 63 (22nd July 1929), page 132 (15th July 1928), page 280 (15th September 1928), page 286 (26th August), there is found signature of the defendant as S. Venkatasubbayya (S. x x x). So in the examination made by us in all ways we believe that the letter filed by the plaintiff was written by the defendant. We also think that the letter was written by the defendant with a bad motive. Therefore we decide the 2nd issue in favour of the plaintiff.”

List of witnesses examined on behalf of

Plaintiff. Defendant. 1. Plaintiff. K. Ramiah. 1. S. Venkatasubbayya. 2. Jari Siddappa. 2. B. Venkataramayya. 3. Konda Chinnappa Reddi. 3. Thalari Narappa. 4. Kolla Sankarappa. 4. S. Bapanna. 5. Madireddi Ramappa.

Exhibits read on behalf of Plaintiff.

1. Letter written by Venkatasubbayya.

24-9-1927 to M. Venkatanarayana.

17-2-1926 to Ramayya.

12-9-1926 Account patti to Ramayya.

27-8-1927 to Ramayya.

Exhibits on behalf of defendant: Nil.”

Several things are to be noted about this judgment. This is a judgment of men who have some acquaintance with the rules of evidence and even the manner of drawing up a judgment. They have drawn up a separate award. They called on the defendant to state whether he had written the four letters therein exhibited and got his admission. They carefully note that in some letters he has written ‘S’ in English and Venkatasubbayya in Telugu and that in some others “Savarala Venkatasubbayya” in Telugu. They have also been careful to mark these letters as exhibits for plaintiff as well as to give the list of witnesses examined for the plaintiff and for the defendant, and also to note that the exhibits on behalf of the defendant are nil. It is also to be observed that in the sentence “when we made enquires privately,” they use the English word “Privately”. It is also perfectly clear that the defendant must have relied strongly in denying the disputed letter on the fact of the English “S” which is found in the signature there but which is not found in any of the letters which he admitted, and which were signed entirely in Telugu characters. One would never suppose on reading this judgment that this highly important account which contained his signature written with English “S” was shown to the defendant or his statement about it taken. This is strongly borne out by the fact that it is not marked as an exhibit, nor is the name of Meda Lakshminarayana, in whose account is the signature of the defendant, found in the list of witnesses examined. There can be no question that if this document of vital importance was not shown to the petitioner the arbitrators were guilty of misconduct and that therefore the award should be set aside. This would be a case exactly like Delhi Cloth and General Mills Co. v. Firm Kidari Pershad Chhedi Lal quoted above and in this respect it would be clearly distinguishable from Sheik Mohidin Sahib v. Ramaswami Chetty , quoted for the respondent. The lower Court got over this objection by relying on the evidence of one of the arbitrators given before it, and if that evidence could be reconciled with what is stated in the award, then the fact that this Court might not attach the weight to it which the lower Court has done, would not be a sufficient reason for holding that the lower Court acted without jurisdiction or with material irregularity in the exercise of its jurisdiction, though there would be still one more matter outstanding which I shall mention later. I shall set out the evidence of this arbitrator in so far as it concerns the matter. He says in examination-in-chief “we compared the signature of Subbayya in the presence of both parties before all the arbitrators by looking into the account book of Lakshmidasayya. The account was sent for on the request of the plaintiff. We held no private enquiries”. In cross-examination he says:

“We acted on the evidence before us only. The private enquiry referred to in the award relates to the comparison of signature. Really there was no private enquiry as the accounts were sent for publicly.”

I must confess that I cannot see how this statement can be reconciled with what is so clearly set out in the arbitrators' judgment. It is there distinctly stated “when we made enquiries privately we ascertained that in the account of M. Lakshminarayana, there is found the signature of the defendant”. No doubt that in itself would not have been irregular if the account had been brought to the notice of the defendant before the arbitrators. That is not the sort of explanation which the witness attempts to give. He now says that the account was sent for on the request of the plaintiff, and that the arbitrators held no private enquiries, and in cross-examination he says: “The private enquiry referred to in the award relates to the comparison of signature.” This explanation of private enquiry seems to me a pure subterfuge. The comparison of signature by arbitrators is not a private enquiry. It is most important to note that even in his deposition there is no statement that the defendant was asked whether he admitted or denied his signature in this account. I have remarked above that the arbitrators have expressly stated in their judgment that the defendant admitted his signature in the letters there exhibited. In the nature of things, when this much more important document containing what was alleged to be his signature was in question, had he been present he must have been asked whether he denied or admitted it. When we find that fact neither noted in the original judgment nor deposed to by the witness and when the judgment does not contain the document as one of the exhibits, the conclusion seems to be irresistible that the evidence of the witness cannot be reconciled with the judgment. The lower Court makes no attempt to do so. It simply ignores the apparent difference. For the lower Court to have thus accepted the evidence of the arbitrator, which was in direct conflict with the judgment, and which evidence it was of course natural for the arbitrator to give in order to excuse himself and his fellow-arbitrators if they had adopted the procedure which on the face of the judgment they appear to have adopted, was a material irregularity in exercising its jurisdiction.

Another point to be mentioned is this, and even accepting the arbitrators' evidence, as the lower Court does, it still remains outstanding. There is no proof that any evidence was taken that this entry in the account was in the writing of the defendant. As I have said, Meda Lakshminarayana is not stated in the arbitrators' judgment to have been examined by the arbitrators. His name does not appear in the list of witnesses given in their judgment and it is not stated by R. W. 1 in his evidence before the Court that he was examined or was called as a witness. It is just arguable that it was still open to the arbitrators by mere comparison of the signatures in the admitted letters with the signature in the account to conclude that both are similar and that therefore that the disputed letter was written by the defendant. But if that was the case, the signature in the account did not really amount to any additional evidence at all because the question then was exactly the same as to whether the signature in the disputed letter was the same as the signature in the admitted letters, and if that could be determined by a mere comparison of the writing of the documents, then an unproved signature in the account would not be any additional evidence. In Sanyasi Rao v. Venkata Rao , Dobson v. Groves is quoted wherein Lord Denman C.J, observed: “When once the case is brought within the general principle by a possibility that the arbitrator's mind may have been biassed, there is a sufficient objection.” In the same Madras case, it is stated “In any event, it is settled law that if evidence is improperly admitted the Courts will not consider the question whether such evidence had or had not an effect upon the arbitrator's mind, and in this case the arbitrator having made private enquiries and obtained information, his award is thereby vitiated.” Here, the evidence improperly admitted is crucial evidence in the case. There can be no doubt that it must have very strongly affected the arbitrators' minds.

In the result, therefore, the whole award must be set aside, the petition allowed with costs and the suit remanded for disposal.

N. R. R.Case remanded.