Arati Paul Vs. The Registrar, Original
Side, High Court Calcutta & Ors  INSC 68 (10 March 1969)
10/03/1969 BHARGAVA, VISHISHTHA BHARGAVA,
VISHISHTHA SHELAT, J.M.
CITATION: 1969 AIR 1133 1969 SCR (3) 926 1969
SCC (2) 756
Practice & Procedure-Judge seized of
suit-Parties agreeing to refer matters in dispute to arbitration of
Judge-Decision and decree by Judge--Whether award or judgment of court.
When a partition suit and connected
testamentary suit were pending before a Judge on the original side of the High
Court of Calcutta, the parties filed an agreement before the Judge and got it
recorded that the matters in dispute in both the suits were to be referred to
the sole arbitration of that Judge. The parties agreed to abide by any decision
*at might be given by the Judge and that no evidence need be taken except to
the extent that the Judge may desire and that the evidence need not be recorded
in any formal manner.
It was also agreed that the Judge was to have
all summary powers including the power to divide and partition the properties.
At the same time the parties added that the Judge was to make such decrees as
he thought fit and proper and for the purpose of partition, if necessary, he
could engage or appoint surveyors and commissioners. The Judge thereafter gave
a decision passing a preliminary decree in the partition suit and it was filed
on the record of the suit as a judgment. A preliminary decree was drawn up in
terms of that order but before it was signed, the plaintiff presented a
petition under Art. 226 of the Constitution for the issue of a writ of mandamus
directing the Registrar of the High Court to recall, cancel and withdraw the
order and take it off the record of the partition suit as it was not a judgment
in the suit but was only an award. The writ petition was dismissed by the High
In appeal to this Court,
HELD : Where an arbitration agreement
envisages that the Presiding Judge of the Court should himself act as an
arbitrator he will occupy a dual capacity. He will be both an arbitrator to
decide the matters referred to him by the agreement of the parties and a court,
before which the suit continues to remain pending, with jurisdiction to deal
with the suit in accordance with the provisions of the Arbitration Act. [942 F]
In the present case the powers, conferred by the agreement on the Judge already
seized of the partition suit, were intended to enable him to function as an
arbitrator so as not to be bound by the rules of procedure applicable to him as
a court. If such a reference to arbitration by a Presiding Judge before whom
the suit was pending could not be competently made under the Arbitration Act,
then the order by the Judge must be held to be a preliminary decree passed by
him as a court seized of the partition suit. If there was a competent
)reference, then, after deciding the matters referred to him as an arbitrator,
the Judge proceeded to deal with the suit himself as a court and to pass a
preliminary decree in it. Such a course was contemplated by the parties
themselves when they stated that the Judge could make such decrees as he
thought fit. A 927 decree could only be passed by the Judge in his capacity of
a court seized of the suit, because, an arbitrator could not pass a decree. The
actual order passed by the Judge also made it clear that, in passing it, he
purported to act as a court deciding the suit and not as an arbitrator to whom
matters in dispute were referred by the parties. Therefore, the order of the
Judge was a judgment and not an award.
Since it was a judgment of the Court, the
Registrar of the High Court, under the Rules of the Calcutta High Court on the
original side, was bound to file it on the record and retain it there and the
appellant was not entitled to the relief claimed. [942 A-D, F-H; 943 A-F]
Bickett v. Morris, (1866) L.R. I H.L. Sc. 47, White v.
Buccleuch (Duke) (1866) L.R. 1 H.L. Sc. 70,
Robert Murray Burgess v. Andrew Morton,  A.C. (H.L.) 136, Wyndham v.
Jackson,  3 AR E.R. 677, Wyndham v.
Jackson,  2 All E.R. 109, Sayad Zain v. Kalabhai Lallubhai, I.L.R. 23
Bom, 752, Raoji Trimbak Nagarkar v. Govind Vinayak Nagarkar, (1897) P.J. 413,
Baikanta Nath Goswami v. Sita Math Goswami, I.L.R. 38 Cal. 421, Nidamarthi
Mukkanti v. Thammana Ramayya, I.L.R. 26 Mad. 76, Chinna Venkataswami Naicken v.
Venkatasami Naicken & Anr. I.L.R. 42 Mad. 625, Noti Venkata Somayajulu Guru
v. Adusmilli Venkanna, I.L.R. 58 Mad. 31, K. P. Dalal v. R. S. Jamadar, A.I.R.
1945 Bom. 478, Baijnath v. Dhani Ram, I.L.R. 51 All. 903. Edappalli Kottamma v.
Nallapaneni Mangamma & Ors. A.I.R. 1967 A.-P.700, Pisani v. Attorney-General
of Gibraltar, (1874) 5 P.C. 516 (B), Russel on The Law of Arbitration, 17th
Edn. p. 117 & Halsbury's Laws of England, 3rd Edn. Vol. 2 p. 8 para 15,
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 745 of 1966.
Appeal by special leave from the judgment and
order dated February 18, 1965 of the Calcutta High Court in Appeal from
Original Order No. 226 of 1964.
M. C. Chagla, D. N. Mukherjee and P. K. Sen,
for the appellant.
B. Sen, S. C. Mazumdar, G. S. Chatterjee for
Sukumar Bose, for respondents Nos. 1 and 2.
N. N. Goswari and S. N. Mukherjee, for
respondents Nos. 3 and 4.
The Judgment of the Court was delivered by
Bhargava, J. This appeal, by special leave, is directed against a judgment of
the Appellate Bench of the High Court of Calcutta dated 18th February, 1965,
dismissing an appeal against an order of a single Judge by which he dismissed a
petition under Art. 226 of the Constitution on 26th August, 1964. The facts
leading up to this litigation are that one Shrish Chandra Paul died in the year
1930, leaving behind his widow Pramila Sundar his daughter Arati, and 4 sons
Balai, Kanai, Netai and Gour. In the year 1945, Netai died leaving his mother Pramila
Sundari as his sole heiress. On 27th September 1946, a deed of gift in respect
of two premises Nos. 60/11 and 60/12 in Gouri Beria 928 Lane was executed by
Pramila Sundari in favour of her three sons Balai, Kanai and Gour. On 18th
March, 1952, there was an I agreement for partition between Pramila Sundari and
her three sons Balai, Kanai and Gour, by which the joint estate left by Shrish
Chandra Paul was partitioned into four lots and a small portion of the property
was left joint. On 13th June 1957, Pramila Sundari instituted Suit No. 1045 of
1957 against Balai, Kanai and Gour for a declaration that the deed of gift and
the agreement of partition were void and inoperative, and for a fresh
declaration of the shares of the parties and partition of the joint properties.
In this suit, Arati was also impleaded as a defendant. On 26th August, 1957,
Pramila Sundari executed a will bequeathing her entire-estate absolutely to
Arati Paul and Gour in equal shares. On 13th January, 1958, Pramila Sundari
died, and, consequently on 12th December, 1959, an order was made in Suit No,
1045 of 1957 transposing Arati Paul as the plaintiff. On 3rd February, 1960,
Arati Paul applied in the Calcutta High Court for grant of Letters of
Administration, with a copy of the will of Pramila Sundari annexed. This
testamentary proceeding was contested and was marked in the year 1962 as
Testamentary Suit No. 12 of 1962. On 17th December, 1962, the Testamentary Suit
No. 12/1962 and the Partition Suit No. 1045/1957 appeared in the peremptory
list of Mallick, J., and the Testamentary Suit was partly heard.
On 2nd and 3rd January, 1963, there was
further hearing in the testamentary suit. On 4th January, 1963, an agreement
was put forward before Mallick, J. referring the dispute in both the suits to
the sole arbitration of Mallick, J. extra cursum curiae. Since this reference
is of importance, we may quote it in full:"It is recorded that all the
parties consent to this Testa. Suit as well as the partition Suit being Suit
No. 1045 of 1957 and all the disputes involved in these two matter be settled
and referred to the sole arbitration of the Hon'ble Mr. Justice P. C. Mallick
and the parties agreed to abide by any decision that will be given and no
evidence need be taken except or to what his Lordship might desire and the
evidence need not be recorded in any formal manner. Parties agree that his
Lordship would have all the summary powers including the power to divide and
partition the properties and to make such decrees as his Lordship thinks fit
and proper and for the purpose of partition if necessary to engage or appoint
Surveyors & Commissioners as his Lordship thinks best.
It is recorded that all the parties have
referred this matter to the Learned Judge in what is known as Extra Cursum Curiae
jurisdiction of this Court.
929, It is further recorded that all parties
agree that they will not prefer any appeal from or against the decree or order
that may be passed by his Lordship the Hon'ble Mr. Justice Mallick." When
this note was recorded, all the parties to the two proceedings were represented
through their counsel. In pursuance of this agreement, Mallick, J. passed an
order in Suit No. 1045/ 1957 on 1st April, 1963. It may be mentioned that the
main dispute in the present case is whether this order of Mallick, J. in this
partition suit amounts to an award or a judgment in a suit. On the same day, by
a separate order, he also granted Letters of Administration in the Testamentary
Suit. On 5th April, 1963, Arati Paul filed an objection to the recording of
this order as a judgment.
On 4th May, 1963, drafts of decrees drawn up
in terms of that order were issued. On 13th May 1963 Arati Paul applied for
change of her Attorney in the partition Suit No. 1045/ 1957. On 17th May, 1963,
the order of Mallick, J. dated 1st April 1963 was filed on the record of Suit
No. 1045/1957 as a judgment. On 24th July, 1963, the application of Arati Paul
for change of Attorney was allowed. Thereafter, on 20th August, 1963, Arati
Paul presented a Letter of Demand to the Registrar of the Original Side of the
High Court to recall, cancel and withdraw the filing of the order of Mallick,
J. dated 1st April, 1963 from the record of the suit and to take it off the
file of that suit.
Failing to get any response, Arati Paul, on
4th September, 1963, presented a petition under Art. 226 of the Constitution
praying for issue of a writ in the nature of mandamus directing the Registrar
of the High Court on the Original Side to forthwith recall, cancel and withdraw
the filing of the said pretended Award (that is how the order of Mallick, J.
was described in this petition) dated 1st April, 1963 as a judgment in the said
Suit No. 1045/1957 as part of the records of the said suit, and another writ of
mandamus directing the Registrar of the High Court to forthwith take off the
said,pretended Award dated 1st April, 1963 from the file and/or records of the
said Suit No. 1045/1957. In this petition, apart from the Registrar of the High
Court on the Original Side, Balai, Kanai and Gour were also impleaded as
opposite parties. This petition under Art. 226 of the Constitution was numbered
as Matter No. 366 of 1963 and was summarily rejected by Banerjee, J. on 5th
On 16th September, 1963, Appeal No. 228 of
1963 was entertained against this judgment under the Letters Patent, but an
application presented for an interim injunction restraining the Registrar from
taking any steps pursuant to the judgment of Mallick, J. dated 1st April, 1963
pending disposal of the appeal was rejected. On 930 27th November, 1963, Arati
Paul obtained special leave to appeal from this Court against the, refusal of
the interim in junction by the interlocutory order dated 16th September, 1963.
While this appeal was still pending in this Court, the Appellate Bench of the
High Court, on 28th April, 1964, allowed Appeal No. 228 of 1963, directed issue
of a Rule in Matter No. 366 of 1963, and ordered stay of all proceedings
pursuant to the order of Mallick, J. dated 1st April, 1963, till the final
disposal of the Rule. Since the appeal in this Court had become infructuous, it
was not prosecuted and was dismissed for non-prosecution on 29th April, 1964.
On 10th June, 1964, two of the parties Kana and Balai took out a notice of
motion for revocation-of Letters of Administration which had been granted to
Arati Paul by the order of Mallick, J. dated 1st April, 1963 in the
Testamentary Suit. This notice was returnable on 15th June, 1964. Matter No.
366 of 1963, having been remanded by the Appellate Bench, appeared for final
hearing before Sinha, J., on 15th July, 1964, but it was directed 'to go out of
the list as an objection was taken on behalf of Kanai and Balai to the matter
being taken up by him on the ground that he was a member of the-Appellate Bench
which had directed issue of the Rule in that Matter. On 16th July, 1964, this
Matter No. 366/1963 was mentioned before the Chief Justice for being assigned
to some other Judge, when a direction was made by the Chief Justice that a
letter should be written by the party concerned to his Secretary. On 27th July,
1964, the Notice of Motion taken out by Kanai and Balai for revocation of
Letters of Administration was partly heard by Mallick, J. who recorded the
following minutes "Part Heard. The Rule issued by the Appeal Court in
Matter No. 366/63 in the matter of Arati Paul vs. Registrar, O.S., appears to
be intimately connected with the application that is now pending before me. I
direct that this matter with the said Matter No. 366 be placed before the
Hon'ble C.J. for proper determination. Let this matter along with the matters
appear day after tomorrow when I shall give directions. Interim Order to
continue except that Arati Paul will collect rent." It appears that,
simultaneously with these proceedings, an application for taking proceedings
for Contempt of Court were also pending before him in this connection. Hearing
in Matter No. 366/1963 was concluded on 12th August, 1964, and then an, order
was made that this Matter as well as the proceedings relating to Notice of Motion
for revocation of the Letters of Administration and the application for taking
proceedings for contempt should appear in the list for judgment one after the
other. On 26th August, 1964 Mallick, J. passed an order discharging the Rule in
Matter No. 366/1963 as well as dismissing the other two 931 applications.
Subsequently, on 1st September, 1964, the preliminary decree drawn up on the
basis of the order of Mallick, J. dated 1st April, 1963 in Partition Suit No.
1045/1957 was signed by him, and on 3rd September,
1964, the decree was filed. On 21st September 1964, Arati Paul filed Appeal No.
226 of 1964 challenging the order dated 26th August, 1964 passed by Mallick, J.
dismissing Matter No. 366 of 1963. The appeal was dismissed by the Appellate
Bench of the High Court on 18th February, 1965 and the order of the High Court
in the appeal was filed on 16th March, 1965.
Arati Paul then applied for a certificate
under Art. 133(1) of the Constitution for leave to appeal to this Court. That
having been refused, she obtained special leave from this Court and has now
come up in this appeal challenging the confirmation by the Appellate Bench of
the order of dismissal of Matter No. 366 of 1963.
The prayer in the writ petition (Matter No.
366/1963) has been pressed before us by Mr. Chagla on behalf of the appellant
on the sole ground that the order of Mallick, J.
dated 1st April, 1963 was in the nature of an
award made by an arbitrator and not a judgment in the partition suit, so that
the appellant was entitled to obtain a writ for its recall, cancellation and
withdrawal and for taking it off the record of the suit. Being a mere award of
an arbitrator, it could not be treated as a judgment in the suit, nor could a
decree be drawn up on its basis. On behalf of the respondents, other than the
Registrar of the High Court on the Original Side, Mr. Goswami has argued that,
even though under the agreement dated 4th January 1963, Mallick, J. was
requested to act extra cursum curiae and the suit was left to his arbitration, he,
in fact, when passing the order dated 1st April, 1963, acted as a Court and
passed a preliminary decree. According to him, a preliminary decree, in a suit
for partition can only be passed by a Court and not by an arbitrator when
giving an award in the dispute referred to him. He has, therefore, urged that
the Registrar was. right in filing that order on the record of Suit No. 1045 of
1957 as a judgment, and no writ of' mandamus can be issued to him to recall,
cancel or withdraw it or take it off the record. Learned counsel for the
Registrar also urged that all that the Registrar did was to file the order of
Mallick, J. in accordance with the Rules of Court, because it was a judgment
passing a preliminary decree in the suit, so that the appellant was not entitled
to the writ of mandamus sought in Matter No. 366 of 1963.
Mr. Chagla, in support of his argument,
relied primarily on, two decisions of Courts in England and on the principle
enunciated by Russel in his book on "The Law of Arbitration" 17th
Edn. In this book at V., 117, Russel has enunciated the principle as. follows :Sup.CT/69-1
0 932 .lm15 "The subject-matter of an action may be referred to a judge as
arbitrator. The judge in such a case will, if such, is the intention of the
parties, be merely an arbitrator and have no special powers by virtue of the
fact that he is a judge, and his award will not be subject to appeal."
After laying down this principle, Russell goes on to elaborate it in the
subsequent notes with reference to some decisions, and one of these principles
"When, with the consent of both parties,
a judge deviates from the regular course of procedure of the court, he ceases
to act judicially and becomes an arbitrator, whose decision is subject to no
appeal." In support of this last proposition, Russell has quoted the
decisions in Bickett v. Morris(1) and White v. Buccleuch (Duke) (2). We
examined the decisions in these two cases, but could not find any specific
statement in them that the decision given by a Judge ,on deviation from the
regular course of procedure of the Court has to be held to be an award, though
it was held in both cases that it would not be subject to an appeal.
The principal case on which reliance is
placed on behalf of the appellant is the decision of the House of Lords in
Robert Murray Burgess v. Andrew Morton(3). In that case, a suit was first
brought for recovery for a certain amount and the cause was set down for trial
before the Lord Chief Justice, when there being no likelihood of its being reached,
the parties, with the consent of the learned judge, agreed to withdraw it from
trial, and to state a special case for the decision of the court. It was held
by the House of Lords that the special case so stated did not raise directly
any question of law and its decision only depended on questions of fact, so
that the statement of the special case did not confer jurisdiction on the Court
to deal with it as such. The learned Judges of the Divisional Court seized of
the special case pointed out the incompetency and inexpediency of trying such a
question by means of a special case, but expressed their willingness to do the
best they could to decide it, if the parties desired them to do so;
and on that footing, they heard the case and
On appeal, the Court of Appeal reversed that
judgment. This judgment of the Court of Appeal was brought up before the House
of Lords which had to consider the nature of the judgment given by the
Divisional Court. Lord Watson in his speech held:(1)(1866) L.R. 1 H.L. Sc. 47.
(2) (1866) L.R. 1 H.L. Sc. 70.
(3) 18961 A.C. (H.L.) 136.
933 .lm15 "There are several decisions
of this House, in cases coming from Scotland, which appear to me to affirm that
the judgment, of a court below, pronounced extra cursum curiae, is in the
nature of an arbiter's award, and that, as a general rule at least, no appeal
from it will lie. An appeal was held, on that ground, to be incompetent in
Craig v. Duffus(1); Dudgeon v. Thomson(2) and Magistrates of Benfrew v.
Hoby(3)." Lord Shand also expressed a similar view, taking note of the
fact that, as soon as it became apparent to the learned Judges of the
Divisional Court that the special case raised only a question of fact for their
determination they would have been warranted, in declining to give judgment on
It was apparent that the learned judges
yielded to the entreaties of both parties in entertaining and disposing of the
case; and, on this basis, expressed his opinion as follows :"I agree in
thinking that the proceeding was extra cursum curiae, and that the decision of
the dispute between the parties was of the nature of an award by arbiters, as,
indeed, the learned judges of the Divisional Court seem themselves to have
thought, as appears not only from the terms of Wills, J.'s judgment, but from
the observations of both judges when the defendant proposed to appeal."
Reliance was also placed on the decision of Goddard, J. in Wyndham v.
Jackson(4). The facts of that case were that the plaintiff issued a writ in the
Chancery Division claiming an account and payment of all sums due to her under
a contract entered into by the plaintiff with the defendant. An order was made
in the action by consent directing an account and the master, who dealt with
that order, extended the ambit of his enquiry beyond the terms of the order at
the invitation of 'both parties, gave a decision on a matter which was not
covered by the Judge's order for an account, and issued a certificate to the
effect that a, certain sum was due from the defendant to the plaintiff. The
question that was raised before Goddard, J. by the plaintiff was that she was
entitled to recover the amount certified by the master, on the ground that the
certificate was equivalent to an award having been made pursuant to an oral submission
by counsel, who asked him to deal with all matters in dispute, though not
technically covered by the order directing an account.
It was also submitted on her behalf that the
minute in the master's book, indicating an order that he was prepared to make
on the plaintiff's application for an order for payment, was also an award
entitling (1) 6 Bell's Ap. 308.
(2) 1 Macq. 714.
(3) 2 Macq. 478.
(4) (1937] 3 All E.R. 677.
934 her, not only to the, amount mentioned,
but also to the costs of the Chancery proceedings. After considering the views
expressed in a number of cases, Goddard, J. held:"I must take it that it
has been finally decided, in a matter between the parties, that the certificate
was given ex cursum curiae.
Then, as I find it was the result of a
hearing which both parties requested, and to which they assented, I think it
falls within the line of cases on which the plaintiff relies, and can be
enforced as an award." This case went up in appeal before the Court of
Appeal whose decision is reported in Wyndham v. Jackson(1). That Court differed
from Goddard, J. on the nature of the order made by the master and held that
the determination by the master was not a final determination and was never
intended to be treated as a final arrangement between the parties. That matter
was still to go before the Judge who had made the order for account and the
master's certificate could not be binding until it had been confirmed by the
Judge. The position of the master was held to be exactly analogous to the
position of an arbitrator to whom the court may have referred a matter to make
a report to the court in order that the court may give a final decision between
the parties. On this view, the Appeal Court did not go into the question
whether the decision given by the master amounted to a decision given extra
cursum curiae and whether it was enforceable as an award. The award of the
master, being treated as provisional and subject to confirmation by the Judge,
could obviously not be enforced as such. Thus,: the view expressed by Goddard,
J. that the decision of the master could be enforced as an award, if it had
been final, was neither affirmed nor set aside.
The cases in India relied upon are two
decisions of the Bombay and Calcutta High Courts. In Sayad Zain v. Kalabhai
Lallubhai(2), before the case came to a regular hearing before the Court of the
First Class Subordinate Judge, Surat, the parties as well as their pleaders
signed an application which ran as follows :"We have decided that the
Court should make a settlement of the dispute between us according to Chapter
XXXVIII of the Civil Procedure Code, and we will abide by whatever decision the
Court may give.
We have specially decided that the Court
should have full authority to obtain information from the parties in whatever
way the Court may think proper, but the parties (1)  2 All E.R. 109.
(2) I.L.R.. 23 Bom. 752., 935 are not to
produce any evidence except documentary records." The Subordinate Judge,
in pursuance of this agreement, proceeded to deal with the case and ordered
defendant to pay plaintiff a certain sum, having dispensed 'with the
requirement of going through the formal procedure of rejecting the suit and
registering their application as a fresh suit, because the parties referred him
to the decision in Raoji Trimbak Nagarkar v. Govind Vinayak Nagarkar(1). An
appeal against this decision was taken to the High Court of Bombay which noted
the fact that the Subordinate Judge had referred to the case mentioned above
"The very mention of that case shows
that the parties must have intended that the decision of the Subordinate Judge
as arbitrator should be final. In that case, as in this, the parties solemnly
agreed by themselves and by their pleaders to abide by the decision of the
Court to be made in a particular way. They cannot, therefore, appeal from
it." The Court further expressed the opinion that:
"The fact that the express provisions of
Chapter XXXVIII of the Civil Procedure Code were knowingly disregarded, shows
that the proceedings were extra cursum curiae, and thus the judgment of the
Subordinate Judge was in the nature of an arbitrator's award, against which an
appeal cannot be entertained if the competency of the appellate Court is
objected to by the party holding the judgment. The fact that the Subordinate
Judge gave his award in the form of a decree will not make it a decree from
which a regular appeal can lie." In Baikanta Nath Goswami v. Sita Nath
Goswami(2), after the hearing of a suit in a Munsif Court had commenced and
some evidence had been recorded, the parties agreed to leave the questions in
dispute between them to the determination of the Munsif after he had inspected
the locality, and also agreed not to raise any objection to the decision so
arrived at by the Munsif and to hold themselves bound by the decision of the
Munsif. It was specifically stated in the agreement that neither of the parties
shall be competent to raise any objection to the decision or to prefer an
Acting on this submission, the Munsif made a
local inspection and passed an order with which the plaintiffs were not
content, so that they applied to the Munsif under section 623 of the Civil
Procedure Code, 1882, for a review.
The Munsif granted the review and passed a
second order in modification of his (1)  P.J. 413.
(2) I.L.R. 38 Cal. 421.
936 first order, and again embodied the order
in what purported to be a decree in the suit. Against this decree, an appeal
was filed by the defendants before the District Judge who entertained the
appeal and made an order of remand. On second appeal, the High Court of
Calcutta held that the first judgment of the Munsif was in the nature of an
award and that it did not lose that character because he embodied the operative
part of that judgment in what purported to be a decree in the suit. He was in
fact an arbitrator by the submission of the parties and his decision was an
award. It was not open to him to alter that award when made or to review his
decision. It was further held that no appeal, consequently, lay to the District
Judge against that decision. It is on the basis of these cases that it was
argued that, in the present case also, the order made by Mallick, J. should be
held by us to be in the nature of an award made by an arbitrator, so that it
cannot be treated as a decree and filed as such in the partition suit which was
pending before him.
As against these cases cited on behalf of the
appellant, our attention has been drawn on behalf of the respondents to
the-views in Halsbury's Laws of England, and to certain decisions of Courts in
India. In Halsbury's Laws of England, Third Edn., Vol. 2, at p.8 in para. 15,
it is stated:"An arbitration agreement must be an agreement to refer
disputes to some person or persons other than a court of competent
In principle, a judge sitting extra cursum
curiae may sit as arbitrator under an arbitration agreement and a reference to
a foreign court has been treated as an arbitration agreement for the purpose of
exercising the jurisdiction to grant a stay of proceedings arising out of the
same subjectmatter. An agreement that the decision of a judge sitting in court
should be unappealable is however, despite the language of some of the
decisions cited, not an arbitration agreement; the decision, when given, is a
judgment, not an award, and the judge is not placed in the position of an
arbitrator." Reliance is placed particularly on the last sentence of the
above extract from Halsbury's Laws of England.
In Nidamarthi Mukkanti v. Thammana
Ramqyya(1), parties in a suit pending before the District Munsif presented a
petition undertaking that both parties would abide by the decision of the Court
that may be passed, as it thinks just, after perusing the documents filed by
both parties and all the records in the said suit, and after measuring the
sites and inspecting the marks, etc.,.
(1) I.L.R. 26 Mad. 76.
937 which are thereon. The District Munsif
ordered accordingly, inspected the site, and found in favour of the plaintiff
and pronounced judgment giving him the order claimed, and granted the
injunction. It was held by the Madras High Court on appeal that the District
Munsif acted as arbitrator by consent of parties and that, consequently, no
appeal lay from his decision which must be looked on as an award. It was,
however, added that, as no attempt had been made to attack that award on any of
the grounds specified in section 521 of the Civil Procedure Code, the Court
must look on the decree of the District Munsif as one passed in accordance with
the award and uphold it as such.
In Chinna Venkatasami Naicken v. Venkatasami
Naicken and Another(1), in a suit for money due upon a mortgage bond, after the
examination of some witnesses, parties agreed to refer the questions of law and
fact arising in the case to the decision of three persons, viz.. the
Subordinate Judge and two friends of the parties. An award was made by the
majority. Thereupon, an application was presented by the defendants to set
aside the award on various grounds. The Subordinate Judge over-ruled the
objections and passed a decree in accordance with the award. In the Revision
before the Madras High Court, the main ground taken was that the reference to
the Subordinate Judge as one of the arbitrators was illegal and that whole award
was vitiated thereby.
Seshagiri Ayyar, J., in confirming the decree
of the Subordinate Judge, held:"In my opinion, therefore, although the
procedure adopted by the Subordinate Judge in dealing with the matter as if it
was a reference under the second schedule and as if the provisions of the Code
applied was wrong,.
inasmuch as a decree was passed in terms of
the award, the defendant as a party to the reference is not entitled to contest
its finality and to request that the case should be heard again." Wallis,
C.J., said:"I think a reference of the suit to the presiding judge must be
held to be altogether extra cursum curiae and not the less so when two others
are joined with him, and that the decree passed in accordance with their
decision must be regarded as a consent decree, and as not subject to the
provisions of the second schedule." In Noti Venkata Somayajulu Garu v.
Adusumilli Venkanna(2), in a suit claiming an easement of necessity in respect
of certain lands, the District Munsif, at the request of the defendant, made
(1) I.L.R. 42 mad. 625.
(2) I.L.R. 58 Mad. 31.
938 a local inspection of the site,
whereafter the plaintiff was examined-in-chief and some documents were filed.
Thereafter, the parties requested the Court
to give a decision on the evidence already on the record and intimated that
they proposed to adduce no further evidence. The Munsif gave his decision
partly in favour of the plaintiff and partly against him. The plaintiff
appealed to the Subordinate Judge who dismissed the appeal, holding it to be
barred by reason of the joint statement given by the parties before the Munsif.
On further appeal, the High Court of Madras held that, although the proceeding
was not extra cursum curiae, the right of appeal was nevertheless barred by
reason of the special agreement.
In K. P. Dalal v. R. S. Jamadar(1), in an
application registered as a suit for ejectment from a premises, the Judge
trying the suit, at the first hearing of the suit, after pleadings of parties
had been put in, enuired of the advocates of the parties as to whether they
wanted a formal trial or whether they were prepared to leave the matter to him
to be summarily decided as an arbitrator after hearing the respective advocates
and inspecting the premises. Both the advocates agreed to the learned Judge
hearing the facts from them and after inspection of the premises by the Court
to submit to his decision as suggested. Thereafter, the Judge inspected the
premises and ultimately, on a further agreement by both parties that the matters
in dispute should be decided by the Judge as an arbitrator, he gave his
decision. When the case came up in revision before the Bombay High Court, the
learned Judge of that Court referred to the quotations from Halsbury's Laws of
England and Russell on Arbitration which we have noticed earlier, and expressed
his opinion that he did not think that those observations necessarily meant
that the Judge ceased to be a Judge and became a pure arbitrator in the sense
that he could refer the dispute to himself and also remit the award to himself.
The order of the trial Judge dismissing the application and making no order as
to costs was upheld on the view that the trial Judge had not lost his capacity
as a Judge and had not become a pure arbitrator governed by the Arbitration Act
and, therefore, the provisions of that Act would not apply to him, so that the
order passed by the trial Judge was correct.
In Baijnath v. Dhani Ram(2), a suit for
declaration, removal of certain encroachments, and a perpetual injunction came
for trial before the Munsif where the parties agreed that the Munsif should
decide the case on inspection of the documents filed by the parties and on
inspection of the locality. They further agreed to accept the decision of the
Munsif. The Munsif wrote a judgment and decreed the suit in part. There was an
appeal to the (1) A.I.R. 1945 Bom. 478.
(2) I.L.R. 51 All. 903.
939 District Judge which was dismissed and
the second appeal came before the High Court of Allahabad which was also
dismissed. While the appeal before the District Judge was pending, an
application for review of judgment was also presented before the Munsif. In
disposing of this application, the Munsif held that he was an arbitrator and
that his decision was binding on the parties, so that an application for review
did not lie as there was no sufficient cause for review. This order was again
taken up in Revision before the High Court, and the question arose whether the
Munsif could not entertain the application for review because he was an
arbitrator. The Court held:"The Munsif, in accepting the position of an
arbitrator, had a two-fold capacity. He was an arbitrator, but he was also the
court. If the arbitrator left anything undecided, the parties would be entitled
to go to the court and to ask the court to remit the award to the arbitrator.
The fact that the two capacities were consituted in the same person should not
deprive a party of his right of having matters set right." On this view,
the Court was of the opinion that an application for reveiw lay against the
judgment of the Munsif, allowed the revision and directed the Munsif to take up
the application for review afresh and consider it on the merits.
In Edapalli Kotamma v. Nallapaneni Mangamma
and Others(1), in a suit for mandatory injunction directing the defendants to
remove certain constructions and for a permanent injunction restraining them
from obstructing the flow of surplus water from plaintiff's land, the parties,
after a Commissioner appointed to inspect the locality had prepared certain
plans and submitted his reports, signed and filed a memorandum before the
District Munsif in the following terms-"Both parties agreed to abide by
the decision of the Hon'ble Court after personal inspection. The parties are
not adducing oral evidence. Documentary evidence can be received." The
District Munsif inspected the locality, placed on record a detailed note of the
physical features of the locality, etc., and, on the basis of the
Commissioner's plans and reports and his own personal inspection, gave a
judgment for the plaintiffs. A decree was also drawn up in the usual course.
The first defendant preferred an appeal which was rejected by the first
appellate court on the ground that it was incompetent. In second appeal before
the Andhra Pradesh High Court, the question arose whether the first appellate
Court was right in holding that no appeal lay to it from the decree of the
trial Court. A learned single Judge of (1) A.I.R. 1967 A.P. 700.
940 the Andhra Pradesh High Court differed
from the view expressed in Nidammarthi Mukkanti's case(1) and held that there
could not be a reference to arbitration by the Judge to himself. He expressed
the view by saying.:
"It would be fantastic to say that in a
case like the present, the Court made a reference to itself, fixed the time for
the making of the award, stayed its hand till the expiry of the time fixed for
the submission of the award, received the award, gave time for objections to
the award, heard the objections and, finding no grounds for setting aside the
award, pronounced judgment in accordance therewith." He went on to hold:"The
Arbitration Act of 1940 makes it clear that a reference to arbitration could be
made only in accordance with the Act and the procedure prescribed by the Act
should have been followed before ss. 17 and 39 of the Act barring appeals from
decrees on awards, could be invoked. Consequently, the decision of the trial
Court could not be treated as the award of an arbitrator and the decree that
followed, could not be held to be a decree on. an award and therefore not open
to appeal." He then proceeded to examine the question whether, there being
no statutory provisions barring a right of appeal in that case, there was any
principle of law which deprived the parties of the right of appeal. He noted
the fact that, in that case, there was no express agreement not to appeal; but
the controversy turned on the question whether, by their conduct, the parties
should be deemed to have given up their right of appeal and whether the waiver
of the right of appeal should be implied from the terms of the agreement
between the parties. The learned Judge held that there had been no waiver of
the right of appeal, so that the appeal before the first appellate Court was
competent. The order dismissing that appeal was set aside and the case was
remanded for a decision of the appeal on merits.
Reference may also be made to a decision of
the Privy Council in Pisani v. Attorney-General of Gibraltar(2). It that case,
the Crown claimed certain lands as escheated for want of heirs of the deceased
owner. The defendants to the action were a purchaser from that owner, a person
who claimed that the purchaser was only a trustee for him, and certain legatees
and beneficiaries under a will of the deceased. During the course of trial, it
became evident that the title of the Crown by escheat was unsustainable, but,
instead of dismissing the suit, the Court, with the consent of the (1) I.L.R.
26 Mad. 76.
(2) (1874) 5 P.C 516. (E).
941 parties, allowed an amendment of the
pleadings by the addition of a prayer that the rights of the several defendants
might be ascertained and declared by the decree.
of the Court. The Court then enquired into
the rival claims of the defendants and declared their respective rights. One of
the defendants preferred an appeal from the judgment to the Privy Council and a
preliminary objection was taken to the competency of the appeal. The Judicial
Committee of the Privy Council held that though the amendment of the pleadings
in the Court below could not have been made except by consent of parties and
though the Court below had been invited by the rival claimants to adjudicate
upon their rights interse there was no stipulation that the right of appeal
should be given up. The parties did not contemplate that the Judge was to hear
the cause otherwise than as a Judge or that the litigation was not to go on
subject to all the incidents of a cause regularly heard in Court, including an
appeal to the Judicial Committee. There was nothing in the proceedings
suggesting that the parties waived their right of appeal. It was in this
context that the Judicial Committee made the following observations:" It
is true that there was a deviation from the cursum curiae, but the Court had
jurisdiction over the subject and the assumption of the duty of another
tribunal is not involved in the question. Departures from ordinary practice by
consent are of everyday occurrence; but unless there is an attempt to give the
Court jurisdiction which it does not possess, or something occurs which is such
a violent strain upon its procedure that it puts its entirely out of its
course, so that a Court of appeal cannot properly review the decision such
departures have never been held to deprive either of the parties of the right
of appeal." The Privy Council added that it was wrong to regard the
decision of the Court as an award of an arbitrator or to attribute an intention
to the parties that the decision should not be open to appeal.
A review of all these decisions shows that
the question as to the nature of an order made in circumstances similar to
those with which we are concerned has been considered both in England and in
India primarily for the purpose of deciding whether such an order is subject to
an appeal like an ordinary judgment of a Court from which an appeal lies.
In some cases, the right of appeal was
negatived on the ground that such a decision was in the nature of an
arbitrator's award. In other cases, it has been treated as a judgment amounting
to a decision by consent of parties.
In the case before us, the position is
different. No appeal was ever sought to be filed against the order of Mallick,
dated 942 1st April, 1963. Further, the
language of the agreement of the parties, on the basis of which Mallick, J.
proceeded to make that ,order was different from that considered in these
various decisions. At the first stage, the parties got it recorded that the
matters were to be settled and referred to the sole arbitration of Mallick, J.
The parties agreed to abide by any decision that might be given by him and that
no evidence need be taken except or to whatever extent Mallick, J. might
desire. The evidence need not be recorded in any formal manner. Mallick, J. was
to have all the summary powers including the power to divide and partition the
properties. The conferment of these powers on Mallick, J., who was already
seized of the partition suit, was clearly intended to enable him to function as
an arbitrator so as not to be bound by the rules of procedure applicable to him
as a Court. At the same time, the parties added that Mallick, J. was to make
such decrees as he thought fit and proper and, for the purpose of partition, if
necessary, he could engage or appoint surveyors and Commissioners as he thought
best. On the face of it, an arbitrator could not pass any decree. The decree
could only be passed by Mallick, J. in his capacity of Court seized of the
Even if it be held that the first part of the
agreement had the effect of bringing about a reference to him in his capacity
as arbitrator, he did not cease to be seized of the partition suit as a Court.
Even under the Arbitration Act, if a reference is made to an arbitrator in a
suit pending in a Court, the Court does not cease to have jurisdiction over the
suit. All that is required by the provisions of the Arbitration Act is that no
further proceedings are to be taken by the Court, except in accordance with the
other provisions of that Act. The suit continues to remain pending before the Court.
In a case like the present, where the arbitration agreement envisages that the
Presiding Officer of the Court should himself act as an arbitrator, be, in such
circumstances, will obviously occupy a dual capacity. He will be both an
arbitrator to decide the matters referred to him by the agreement of theparties,
and a Court before which the suit continues to remain pending having
jurisdiction to deal with the suit in accordance with the provisions of the
Arbitration Act. It is a question whether a reference to arbitration by a
Presiding Judge, before whom a suit is pending, can be competently made under
the Arbitration Act; but that is a point on which we need express no opinion,
because, if it be held that there was no reference to arbitration in the present
case, the order passed by Mallick, J. must be held to be a preliminary decree
passed by him as a Court seized of the partition suit. On the other hand, even
if it be held that there was a competent reference, it is clear that, after
deciding the matters left to his decision as an arbitrator by the parties,
Mallick, J. proceeded further to deal with the suit himself as a Court and to
pass a preliminary decree in it which course being adopted by him 943 was
envisaged by the parties themselves when they stated that he could make such
decrees in the suit as he thought fit. The actual order passed by Mallick, J.
also makes it clear that, in passing that order, he purported to act as the
Court deciding the suit and not as the arbitrator to whom some matters in
dispute were referred by the parties.
At the beginning of the order, Mallick, J.
described himself as "the Court". When making the operative order, he
used the following language:"In the result, for the present, I will pass a
preliminary decree as under :On the face of it when he passed this order he
acted as a Judge. seized of the suit who alone was competent to pass the
preliminary decree in the suit. Consequently, we cannot accept the submission
made by Mr. Chagla that the order made by Mallick, J. should be held to be an
award of an arbitrator pure and simple and not a decree by a Court.
We are not concerned in this appeal with the
question whether it was appropriate for Mallick, J. to have dealt with the suit
in this manner, nor whether the actual order made, by him passing the
preliminary decree was correct or was liable to be set aside on the ground of
the incorrect procedure adopted by him. As we have mentioned earlier, the sole
relief claimed before the High Court was the issue of a writ of mandamus
directing the Registrar on the Original Side to recall, cancel and withdraw
this order and to take it off the record, on the ground that it was an award
and not a judgment of the Court. Since we have held that it was a judgment of
the Court, the Registrar on the Original Side, under the Rules of the Calcutta
High Court, was bound to file it on the record and retain it there. The
appellant could have sought appropriate remedy for having that judgment vacated
and, if such a remedy had been sought against that judgment directly, the
question whether it was a good judgment and should be retained on the record or
not could have been appropriately decided. The. remedy sought by the appellant
of seeking a writ to restrain the Registrar on the Original Side from keeping
the judgment on the record of the suit could 'not possibly be allowed, while
the judgment stood and was not vacated.
In the result, we have to hold that the order
of the High Court dismissing the petition filed by the appellant was correct
and justified. The appeal is dismissed, but, in view of the special
circumstances of this case, we direct parties to bear their own costs.