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Ramkumar v. Kushalchand Ganeshdas
Factual and Procedural Background
The original plaintiff was Shrikisan. On his death the applicant (his widow) was placed on the record as his heir and legal representative by an order-sheet dated 5 September 1922. At that time her age was recorded as 14 and the amendment to the title of the suit reflected that she was a minor. A reference to arbitration was made on her behalf by her next friend by an application dated 29 October 1925, at which time she was still a minor according to the record.
The applicant attained majority sometime in 1926 while the suit and arbitration proceedings were still pending. An award dated 30 November 1926 was filed in Court on 1 December 1926. Subsequent procedural events included the filing of objections by a pleader on behalf of the plaintiff on 23 December 1926 and at least one application by the plaintiff asserting that she had become a major and requesting to continue the suit and an opportunity to give evidence (a petition dated 7 January is referenced in the opinion, with both 7 January 1925 and 7 January 1927 appearing in the text). The 2nd Class Subordinate Judge No. 1, Akola, treated the award as the rule of Court and passed a decree in terms of the award on 7 January 1927 without serving the statutory notices or following certain required procedures.
The present opinion is rendered on a revision application challenging the decree passed by the subordinate Judge; the appellate court finds material irregularities in the lower court's procedure and grants revision.
Legal Issues Presented
- Whether a reference to arbitration made on behalf of a minor by a next friend (without the court's express leave recorded in the proceedings) can validly bind the plaintiff after she attains majority.
- Whether the next friend should have been removed by the Court once the plaintiff attained majority and failed to indicate whether she wished to continue the suit (i.e., scope and effect of R. 9, O. 32 and O. 32, R. 12(5) of the CPC in this context).
- Whether the manner in which the arbitrator conducted the inquiry and the procedural steps taken by the Court (including notice of filing the award) affected the validity of the reference and the award (including compliance with para. 10, Sch. 2, Code of Civil Procedure and Article 158, Limitation Act).
- Whether the decree passed by the subordinate Judge without serving the statutory notice and without regularizing the plaintiff's status after majority was vitiated by material irregularity.
- Whether an unstamped award can be treated as valid and form the basis of a decree (including the duties of the arbitrator under Section 29(g) of the Stamp Act and the need to remit under para. 14, Sch. 2, Code of Civil Procedure to have the award engrossed on stamped paper).
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sanyasi Rao v. Venkata Rao | Cited concerning how the manner in which an arbitration enquiry is held can affect the validity of the reference and of the award. | Used to show that the conduct of the arbitration inquiry was a matter worthy of consideration in assessing the award's validity. |
| Doraswami Pillai v. Thungaswami Pillai | Authority for the duty to remove a next friend where there is a failure of duty by the next friend (in the context of R. 9, O. 32 CPC). | Applied to conclude that the next friend should have been removed because of failure to act when the plaintiff attained majority. |
| Chatarbuj Das… (Defendant) v. Ganesh Ram… (Plaintiff) | Cited in connection with the imperative provision for giving notice of the filing of an award to the parties. | Relied upon to support the proposition that the failure to give notice of filing was a deplorable dereliction of duty and materially irregularated the exercise of jurisdiction by the subordinate Judge. |
| Maharajah Joymungal Singh Bahadur v. Mohan Ram | Authority indicating that an appeal might lie against a summary disposal or that summary treatment could be open to challenge. | Referenced to demonstrate that the Judge's summary rejection and decree might have been appealable and thus indicative of procedural invalidity. |
| Ibrahim Ali v. Mohsin Ali | Analogously cited regarding potential grounds for appeal or challenge to summary disposal. | Used with other authorities to show that the subordinate Judge's procedure was open to attack and might have warranted appellate interference. |
| Dawoodji & Son v. Sherman (A.I.R. 1925 Rang 238) | Cited alongside other cases to show precedential support for challenging a summary disposal and the necessity for proper procedure. | Invoked to reinforce that the learned Judge's disposition of objections and the award without proper procedure was seriously vulnerable to challenge. |
Court's Reasoning and Analysis
The court's analysis proceeds by identifying multiple procedural failings by the presiding subordinate Judge and by the plaintiff's representatives, and then applying the relevant procedural rules and authorities to those facts.
- The court emphasizes the grave responsibilities of a presiding officer to follow legally prescribed procedure and not to act arbitrarily. The subordinate Judge should have respected procedural requirements when dealing with a minor plaintiff who subsequently attained majority.
- The court notes that the reference to arbitration was made on behalf of the plaintiff while she was a minor by her next friend (application dated 29 October 1925). Because she attained majority during the pendency of the suit (in 1926 according to the opinion), the question arose whether the reference could validly continue without the court recording express leave or otherwise regularizing the plaintiff's position.
- The court finds a failure of duty on the next friend within the meaning of R. 9, O. 32 of the Code of Civil Procedure and holds that the Court ought to have removed the next friend (citing Doraswami Pillai v. Thungaswami Pillai).
- At the date of the award (30 November 1926, filed 1 December 1926) the plaintiff had attained majority. The pleader engaged by the next friend had a duty to bring this fact to the Court's notice; the next friend should then have been discharged after notice as required by O. 32, R. 12(5) CPC. The plaintiff, as a major, would then have had the option to elect to proceed with or repudiate the award, and the title of the suit would have to be corrected before further steps (filing award, passing decree, superseding reference, remitting award) were taken.
- The court criticizes the lower Judge for not regularizing the proceedings (bringing the plaintiff properly on record as willing to carry on the litigation in her own name) before calling upon her to file objections to the award. The Judge's failure to follow para. 10, Sch. 2 (Code of Civil Procedure) and the requirement to see whether the arbitrator filed the award together with depositions and documents was a material irregularity.
- The opinion stresses the statutory imperative to give notice of the filing of the award to the parties (referring to para. 10, Sch. 2 and Article 158, Limitation Act) and finds a "deplorable dereliction of duty" by the Judge in failing to give such notice, thereby vitiating the decree.
- The court finds that the plaintiff's petition (referenced as dated 7 January) in which she asserted majority and requested to continue the suit and to have an opportunity to give evidence was ignored by the presiding officer. The Judge proceeded to treat the plaintiff as a minor acting through a next friend and, without taking evidence, made the award the rule of the Court on 7 January 1927. The court considers this summary treatment and refusal to entertain evidence a serious invalidation of the decree.
- The objections filed by Mr. Athavle on 23 December 1926 were characterized as premature and possibly incompetent because, once the plaintiff had become a major, the authority of the next friend ipso facto ceased unless a fresh power had been obtained from the plaintiff. The court finds the proceedings to be in a muddled state and blames both haste and procedural inattention for the lower court's errors.
- The court also identifies a substantive defect: the award as produced was unstamped. Under Section 29(g) of the Stamp Act the arbitrator, as the executant of the award, had a duty to ensure the award was engrossed on stamp paper or to direct a party to provide the necessary stamp. An unstamped award "has no valid existence" and the Court could not properly look at it or pass a decree upon it.
- Given these material irregularities (failure to remove next friend, failure to regularize the plaintiff's status, failure to serve statutory notices, and the unstamped state of the award), the court concludes that the subordinate Judge's decree is vitiated and must be set aside.
- The court therefore re-opens and remands the proceedings with specific directions: ascertain the date the plaintiff attained majority; determine whether she wishes to continue or abandon the suit (in whole or part); determine whether she elects to affirm or repudiate the arbitration proceedings and whether any person acted on her express authority after she became a major; ensure the notices of filing of the award prescribed by statute are given and the parties are called upon to file objections; ensure a properly stamped award is before the Court; remit the award to the arbitrator under para. 14, Sch. 2, CPC for engrossment on stamp paper and republishing to the parties within a time to be fixed.
- On costs, the court declines to award costs in this Court, finding both parties blameworthy for the faulty procedure; costs in the Court below are ordered to follow the event.
Holding and Implications
REVISION ALLOWED
Direct consequences of the holding:
- The decree passed by the 2nd Class Subordinate Judge No. 1, Akola, is set aside for material irregularity.
- The proceedings in the lower court are re-opened and remanded with detailed directions to regularize the plaintiff's status after attaining majority, to give the statutory notices of filing of the award, to call for objections, and to ensure the award is properly stamped and, if necessary, remitted to the arbitrator for engrossment on stamp paper under para. 14, Sch. 2, CPC.
- No costs are awarded in this Court; costs in the Court below will follow the event.
Broader implications: The opinion addresses procedural irregularities in the particular case and prescribes corrective steps for the lower Court. The opinion does not purport to lay down a new doctrine beyond applying existing procedural provisions and cited authorities to set aside a decree vitiated by material procedural defects.
1. I think this revision must be allowed. The 2nd Class Subordinate Judge No. 1, Akola, must understand that there are very grave responsibilities devolving on him by virtue of his office as the presiding officer of a Court of justice. He must bear in mind that there is something like procedure laid down by law for the proper disposal of a case and that he is bound to respect it and cannot act arbitrarily and whimsically as he pleases. The applicant is the widow of the original plaintiff Shrikisan; on his death, she was placed on record as his heir and legal representative (vide order-sheet dated 5th September 1922.) Her age then was 14 as the amendment in the title of the suit shows. The reference to the arbitration was made on her behalf by her next friend as per application dated 29th October 1925, when she was still a minor. How far the reference could be made by a minor's next friend without the leave of the Court expressly recorded in the proceedings was a question which had an important bearing on the validity of the award. Similarly, how far the manner in which the enquiry was held by the arbitrator affected the validity of reference and of the award was also a matter worthy of consideration: cf. Sanyasi Rao v. Venkata Rao(1).
2. She attained majority some time in 1926, i.e, during the pendency of the suit and necessarily of the arbitration proceeding. Nobody took care to ascertain just then from her whether she desired to continue the suit, as soon as she attained majority.
3. This necessarily involved the question whether she desired to continue the arbitration proceedings upon the reference made during her minority. There was thus a failure of duty on the part of the next friend within the meaning of R. 9, O. 32 of the CPC and it was the duty of the Court to remove the next friend on that account: of Doraswami Pillai v. Thungaswami Pillai(2).
4. In any case, there was or could be no doubt that at the date of the award which is dated 30th November 1926, and which was filed into Court on 1st December 1926, she had attained majority and it was the duty of the pleader engaged by the next friend to bring the fact to the notice of the Court at once; and then her next friend should have been discharged after notice as required by O. 32, R. 12(5) of the CPC. She had the option to make her own election, either to go on with the suit and accept the award, or to repudiate the same wholly or partially. On such election being made, the title of the suit had to be first corrected; thereafter, the proceedings for filing the award, and passing a decree in terms thereof, or for superseding the reference, or remitting the award etc. had to be commenced. Until the proceedings pending before the Court were regularized and brought into conformity with law, and, plaintiff who had attained majority was properly shown on the record a willing to carry on the litigation to a termination in her own name, I may say the Court was not justified in calling upon her to file her objections, if any, to the filing of the award. In fact, it was the duty of the Court to first put the house, so to say, in proper order, as a preliminary to the reception of the award; but the procedure followed by the learned Judge is so materially irregular that the decree passed by him without serving notice and following the proper procedure is vitiated, and it must be set aside. If he had cared to turn his eyes to para. 10, Sch. 2, he would have at once known the requirements of law which he was bound to comply with. He had to see whether the arbitrator had filed the award in Court together with any depositions and documents which have been taken and proved before him.
5. He would also have been able to see therein the imperative provision for giving notice of the filing to the parties. Article 158, Lim. Act, also makes this clear. There is a deplorable dereliction of duty on the Judge's part which constitutes a grave and material irregularity in the exercise of his jurisdiction, and his judgment is, therefore, liable to be set aside, for want of such notice: cf. Chatarbuj Das…(Defendant); v. Ganesh Ram…(Plaintiff).*(4).
6. Even though the plaintiff made an application to the Court stating that she became major, the Court seems to have taken no notice of her prayer that she wanted to continue the suit as a major plaintiff. This was on 7th January 1925. By the same petition she requested also an opportunity to give evidence in support of her objections but the presiding officer ignored the petition. Unmindful of the serious invalidating consequences which his refusal to grant the prayer in the petition would involve, he straightway proceeded to reject it, and thinking that he could dispose of the suit by passing a decree in terms of the award and describing plaintiff as still a minor acting through a next friend, summarily decided the objection as if they were mere questions of law, and, without taking any evidence, made the award the rule of the Court on 7th January 1927. This seriously invalidates his decree and even an appeal might have lain against it: cf. Maharajah Joymungal Singh Bahadur v. Mohan Ram(5), Ibrahim Ali v. Mohsin Ali(6), and Dawoodji & Son v. Sherman (A.I.R 1925 Rang 238).
7. The Judge thus had the satisfaction of having washed his hands off the case and I cannot help remarking that he indeed secured for practically statistical purposes one disposal to his credit in respect of a big complicated suit pending on his file ever since 26th November 1919. The Judges of civil Courts must realize that justice cannot be broken on the wheel of statistics in this slipshod manner. The real merit of a Judge lies in his turning out work of good quality and not showing large disposal merely for statistical purposes. I wish the Judge in this particular case had realized this are long in the course of his sufficiently long tenure of office as a Judge and resisted the temptation to puff up statistics of his Court by such a disposal.
8. The objections which were filed by Mr. Athavle, pleader, on plaintiff's behalf, on 23rd December 1926, were, if I may say so, premature and even incompetent, as plaintiff who was then major could presumably not be duly represented by him under the appointment made by her next friend, as that authority had legally come to an end as soon as plaintiff attained majority and the guardian ipso facto ceased to represent her and to act as her next friend for the purposes of the suit unless the aforesaid pleader had taken care to obtain a fresh power from plaintiff herself. In short, the whole proceeding was in a state of muddle. If the Judge had bestowed more careful thought ta the case and to its special requirements at that stage, in view of the altered state of things, I dare say he would surely have come to realize the difficulties of the situation, and may possibly not have landed himself, or the plaintiff, at any rate, in still greater difficulties, by making the award the rule of the Court in his great anxiety and haste to terminate the proceedings by somehow disposing of the, objections and going to the length of even holding that they were barred by limitation. If I may venture to say so, I think that, until the notices prescribed by para. 10, Sch. 2, Code of Civil Procedure, were given to the parties, there was no obligation on them to file any objections. How far the several objections raised to the filing of the award were likely to affect the validity of the award is a matter on which I advisedly refrain from expressing any opinion at this stage. I am drawing the attention of the Judge to the several defects in his procedure and to the requirements of law in the hope that this will enable him to remedy the defects, at least now, if it were possible for him to do so, and thus to bring his proceedings within the strict rules of procedure sanctioned by law as far as possible.
9. As I find that the procedure of the Court below is full of material irregularity in the exercise of its jurisdiction, and principally that of rejecting the plaintiff's application dated 7th January 1927 was highly irregular, I have no alternative but to set aside the decree, and re-open the proceedings and remand the case for proper disposal thereof according to law with advertence to the above remarks. The Court below must now formally ascertain from the plaintiff on what date she attained majority; whether she is willing to continue the suit in her own name or is desirous of even abandoning it, either wholly or partially, and if so to what extent; and further, whether she elects to affirm the arbitration proceedings initiated and conducted in her name by her next friend and her agents, partly during her minority and partly after she attained majority, and so far as the proceedings after majority are concerned, whether she had as a matter of fact expressly authorized anybody to act on her behalf. The notices of the filing of the award prescribed by the statute must now be given to the parties, and they should be called upon to file their respective objections, if any, to the award, and to the passing of the decree in terms thereof. Before doing so it will be necessary for the Judge to see that a proper and duly stamped award is before him.
10. In this connexion I may draw the lower Court's attention to the fact that the award in question is unstamped. Unless and until it is engrossed on a stamp paper it has no validity and cannot operate as an award. As it stands at present it has no valid existence, so to say, and the Court could not be justified in looking at it; far less, could it pass a decree in terms thereof. The executant of the award being the arbitrator, under Section 29(g) of the Stamp Act, it was his duty primarily to direct any of the parties to provide him with the necessary stamp, and to see that he did not deliver or publish his award on a plain paper, and thus save himself from the blame attaching to him of having evaded the stamp law. It will, therefore, be necessary for the Court to remit the award to the arbitrator under para. 14, Sch. 2, Code of Civil Procedure, to enable him to pass the necessary order for providing him with the requisite stamp paper for re-writing and engrossing the award thereon, and then submitting it to the Court, after publishing the same to the parties, within a time to be fixed by it, for further action.
11. In the peculiar circumstances of the case I do not think it fit to award costs of one party against the other in this Court, as both parties are to blame for the faulty procedure. Costs in the Court below will follow event.
12. Revision allowed.
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