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.