Patna High Court
Abdul Halim vs Ismail Momin on 10 April, 1924
Equivalent citations: 86IND. CAS.773, AIR 1925 PATNA 465
JUDGMENT Foster, J.
1. This was a title suit pending in the Court of the Munsif of Madhubani, the subject-matter being a small parcel of land, the site of a house. On the 20th June 1923 the parties put in a petition to the Court to the effect that they had agreed to refer the matter to arbitration, that they had agreed that the arbitrator should be one Azizul Hassan and that the arbitrator was empowered by them to decide the case either with evidence or without evidence or by any other method as he should think fit. A few days later the Court drew up an order of reference in the form prescribed in the Second Schedule of the C.P.C. attacing to that order a copy of the plaint and of the written statement and the petition for reference to an arbitration. The arbitration award was filed in Court in due course signed by Azizul Hassan alone. This award was subject to an objection filed by the plaintiff. The objection was disallowed by the learned Munsif and the suit was dismissed in terras of the award. The plaintiff now moves this Court, for revision of this order and urges two grounds each of which has reference to some passage in the arbitrator's award. In the second paragraph of that award he stated that he began the arbitration on the 12th July 1923 in the presence of four persons whom he names and who, he says, were men of good birth and trustworthy. He says that he associated them with him in one assembly for the purpose of strengthening his own opinion (waste mustahkam karne rai apne). Now, the objection is that this was misconduct inasmuch as the arbitrator was shirking his responsibility and was going beyond the order of reference under which he was acting. The cases of Jamrja Kunwar v. Nasib Ali 24 A. 312 : A.W.N. (1902) 72 and Phiran v. Bahoran 7 N.W.P.H.C.R. 367 are invoked as authorities for holding that the arbitration was void. But in those cases the arbitrator, undoubtedly, failed to take the whole responsibility for the award. In the present case, the arbitrator Azizul Hassan may have had those persons present, as he said in Court, in order that they might help him to put his award in a presentable form, and possibly that may be the meaning of the words waste mustahkam karne rai apne; or he may have meant merely to make it clear that he was not acting in a manner that was in any way surreptitious. Whatever may have been his motive in getting those people to sit with him, 1 can find nothing to indicate misconduct on his part. He does not appear to have got any information from those persons or to have made use of it in arriving at the findings of fact. If he asked them questions of law, or if he consulted them as to the style, syntax or grammar of his award, he was, I think, quite within his rights as an arbitrator; but if he arrived at any findings of fact by consulting the people and if he allowed the persons sitting with him to affect his decision as assessors then I should have been inclined to hold that there had been misconduct.
2. A more serious objection is the second point urged by the petitioner towards the end of his award where he states "from the evidence of the parties and their witnesses and also from my confidential enquiry from other persons it appears that all the actions of the plaintiff are illegal"; now, here plaintiff has obviously a genuine grievance. The learned Munsif in con sideling this matter disallowed the objection of the plaintiff, firstly, on the ground that there was nothing to show that the arbitrator had made use of anything learnt confidentially; and secondly, on the ground that the terms of the reference of arbitration admitted of confidential enquiry by the arbitration. As to the first ground taken by the learned Munsif i am prepared to agree that on looking at the award itself there is nothing that [ can put my finger on and say that it is the result of the confidential enquiry except the general statement which I have quoted, namely, that "from confidential enquiry it appears that all the actions of the plaintiff are illegal." As to the second ground I find myself absolutely unable to agree with the learned Munsif. No arbitrator performing his functions, which are in a sense the functions of a Judge can listen to confidential information adverse to one or other party without committing grave misconduct The words of the petition of the parties allowing the arbitrator full latitude in his method of coming to a decision cannot possibly be interpreted as including unfair conduct.
3. The parties must be presumed to have signed that petition with an eye each to his own interest and no man with an eye to his own interest would refer a cafe to an arbitrator to deal with it behind his back. On the contrary it may be assumed that each party acted with the intention of taking the decision of an honest man who would arrive at his decision in accordance with the methods dictated by equity and good conscience. The holding of confidential enquiries behind the lack of either party has been consistently condemned as misconduct in the legal sense. The authorities are reviewed in the judgment of Mukherji, J., in the case of Ganes Narain Singh v. Malida Koer 10 Ind. Cas. 450 : 13 C.L.J. 399 at p. 402 and there is a decision of the Bombay High Court to the same effect in Haji Ahmad Haji Hassam v. Essaji Tajbhoy. 17 Ind. Cas. 696 : 14 Bom. R. 1007.
4. In addition to the ground which the learned Munsif has adopted in disallowing the plaintiff's objection the learned Vakil on behalf of the opposite party in this Court has urged that substantial justice has been done in this case and that this case concerns a small piece of land about which it is unnecessary to prolong the litigation. On both these points, I am without information. He next urges that the arbitrator was justified in adopting any method he liked inasmuch as he is not bound by the rules of evidence. No doubt an arbitrator is ordinarily free from the fetters of adjective law, but that does not make him free from the fundamental principles of justice.
5. I have no alternative but to set aside the award and supersede the arbitration and direct that the Court will proceed with the suit unless the parties agree again to refer the matter to arbitration in which case the process will commence from the point indicated in para. 1 of Sch. II of the C.P.C. I do not feel prepared to make this revision a matter for costs inasmuch as whatever has come between the parties has come from the acts not of the parties themselves but of the Court and the arbitrator.
6. I, therefore, award no costs.