Patna High Court
Sarju Prasad And Anr. vs Brijnarain Lal And Ors. on 3 January, 1956
Equivalent citations: AIR1957PAT121, AIR 1957 PATNA 121
ORDER Raj Kishore Prasad, J.
1. This application in revision by the plaintiffs is directed against an order dated 6-7-54 of the Subordinate Judge, second Court, Chapra, affirming an order dated 27-11-53 of the learned Munsif of Gopalganj, confirming the award and directing a decree to be passed on its basis.
2. The circumstances under which the pre-sent application arises may shortly be stated as follows : A title suit was filed by the plaintiffs petitioners for a declaration that the disputed land was the kasht land of petitioner No. 1, that the defendants had no right in it, and, therefore, the petitioners asked also for confirmation of possession, or, in the alternative, for recovery of possession.
To this suit there were several defendants, of whom defendants 9. and 10, who are opposite parties 8 and 9, were minors. On 18-3-53 at the in- stance of the parties an application was filed for referring the matter to a sole arbitrator. To this application for reference the guardian-ad-litem of minor defendants 9 and 10 also joined, but no sanction of the court, as required by Order 32, Rule 7, of the Code of Civil Procedure, was obtained for making the reference. On 18-6-53 the Arbitrator filed his award in court.
This award was in favour of the defendants. The plaintiffs petitioners thereafter filed objections to the award on several grounds. One of such grounds was that as no permission of the Court had been, obtained, as required by Order 32, Rule 7, of the Code, by the guardian-ad-litem of the minor defendants 9 and 10, the award was illegal, and this is the question with which we are concerned in the present application.
3. The learned Munsif held that as the Arbitrator found the disputed land, which was IB, 15K. 10 1/4dh. as belonging to the defendants, and to be in their possession, and has accordingly dismissed the plaintiffs' suit, the award appeared prima facie beneficial to the minors. He further found that the defendants had already filed a petition that the award should be confirmed, and as such he was satisfied that the award was beneficial to the minors. He, therefore, rejected the objection of the plaintiffs, and confirmed the award, and made it a rule of the Court, and directed a decree to be passed on the basis of the award.
4. The plaintiffs went up in appeal against the above order to the District Judge, and the appeal was ultimately heard by the Subordinate Judge, 2nd Court, Chapra. He held that, parties, other than a minor, are bound by an award, and it is open only to a minor to avoid it, if he so chooses, and as such it is not open to the plaintiffs, who are bound by the award, to ask for setting aside the award on the ground of non-compliance of Order 32, rule 7, of the Code. He, therefore, dismissed the appeal of the plaintiffs, affirming the deci- sion of the first court, confirming the award.
5. In the present civil revision the only point which has been pressed on my attention by Mr. A. S. Sinha, appearing for the petitioners, is that as admittedly the mandatory provisions of Order 32, Rule 7, of the Code, were not complied with, alj the pro-ceedings founded on the reference made on 18-3-53 are void, even though the minors themselves have not made any objection against the award.
6. The sole question for determination in the present application, therefore, is, can the plaintiffs, who are bound by the award, avoid it on the ground of non-compliance of o. 32, Rule 7, of the Code of Civil Procedure, when the minors themselves have made no grievance of it, rather they have asked for its confimance and the award is in their favour?
7. Several decisions have been cited at the bar by Mr. A. S. Sinha appearing for the petitioners, and Mr. A. B. N. Sinha, appearing for the opposite parties, in support of their respective contentions. The cases relied upon by the learned counsel for the parties are : Deo Narayan Singh v. Siabar Singh, AIR 1952 Pat 461 (A), Gopal Chou-dhary v. Mt. Sundari, AIR 1955 Pat 277 : 1955 BL JR 52 (B), Kedarnath v. Basant Lal, AIR 1939 Pat 278 : ILR 18 Pat 271 (C), Umar v. Mahabir Lal Sahu, AIR 1940 Pat 59 : ILR 18 Pat 708 (D), Mt. Mariam v. Mt. -Amina, AIR 1937 All 65 : ILR 1937 All 317 (FB) (E), Chhabba Lal v. Kallu Lal, 73 Ind App 52 : AIR 1946 PC 72 (F), and Bighundeo Narain v. Seogeni Rai, AIR 1951 SC 280 : 1951 SCR 548 : ILR 30 Pat 947 (G).
8. The ratio decedendi of all the above cases is that Rule 7 of Order 32 of the Code of Civil Procedure is imperative, and its terms must be strictly complied with. Order 32, Rule 7, applies to an agreement to refer matters in dispute to arbitration. The leave of the Court must be obtained before the reference is made, so that the attention of the Court should be directed to the matter that there is a minor concerned, and the court should be asked to consider whether the reference, is in the interest of the minor and for his benefit, and if so, it should expressly record the granting of the leave in the proceedings.
The omission of the next friend, or the guar-dian-ad-litem, of a minor party to obtain such leave would render the order of reference and the award and the decree based upon it voidable at the option of the minor as against all the parties but not voidable at the option of the other parties thereto, as against the minor. The adult members are bound by it despite the fact that the leave of the Court had not been obtained, if the award is in favour of the minor, or is not challenged on his behalf.
But if the minor's guardian or next friend repudiates the award, or the minor on attaining majority does not accept it, the reference can be avoided, and therefore the award and the decree would fall to the ground so far as the minor is concerned. It is open to the minor to bring the matter up in revision to the High Court, or to get a declaration in a separate suit that for want of leave the reference, the award and the decree are not binding upon him, or to take such a plea in any suit in which he may be impieaded as a defendant.
In all the above cases it would appear that the minor or his guardian-ad-litem was an objector in the proceeding arising out of the arbitration matter, or was a plaintiff in the action brought subsequently to challenge an arbitration proceeding on the ground of non-compliance of Order 32, Rule 7, of the Code of Civil Procedure, and consequent prejudice to the minor. No case has been cited by Mr. A. S. Sinha, for the petitioners, show-Ing that even when an award is beneficial to the minor, and he has specifically through his guardian :asked for confirmation of the award, & the person objecting is an adult member, on whom the award is binding, the Court has set aside the award at the instance of such adult member.
This question has been set at rest by the decisions of their Lordships of the Supreme Court in AIR 1951 SC 280 (G). In this case their Lord-ships impliedly accepted the decision in AIR 1937 All 65 (FB) (E) and overruled partly the decision of this Court in Awadhesh Prasad y. Widow of Tribeni Prasad, ILR 19 Pat 343 : AIR 1040 Pat 663 (H). In this case his Lordship Bose, J., who delivered the judgment of the Supreme Court, observed :
"In our opinion, Order 32, Rule 7 must be read as a whole. Sub-rule (2) contemplates a position where the mandatory provisions of Sub-rule (1) have been ignored. In such a case, the resultant agreement or compromise is not to be held a nullity. It is only voidable. Therefore, it is good unless the minor chooses to avoid it.
It follows that a decree or order based on the the agreement is also good unless the minor chooses to challenge it. That is the position where there is no sanction of the Court. Reading the two provisions together, the rule merely means this. No next friend or guardian for the suit can enter into an agreement or compromise which will bind the minor unless the Court sanctions it".
Even their Lordships of the Privy Council in 73 Ind App 52 : AIR 1946 PC 72 (F) have in clear terms, while considering the effect of the non-compliance of the mandatory provisions of Order 32, Rule 7, on an agreement to arbitration, laid down :
"Such an agreement, which removes the decision of a matter in dispute from the jurisdiction of the Court and refers it to some outside party is clearly an agreement with reference to the suit and not only falls within the terms of the rule, but comes within the mischief at which the rule appears to be aimed. The interests of minors might well be sacrificed by an improper reference to arbitration and it is necessary that their interests be protected by Court. If minors successfully challenge an agreement to refer as not made in compliance with Sub-section (1) of Rule 7, it is avoided against all parties under Sub-section (2)''.
Mr. A. S. Sinha, however, has placed strong reliance on AIR 1952 Pat 461 (A), decided by Sarjoo Prosad, J., and on the Division Bench decision of this Court in AIR 1955 Pat 277 (B), decided by Rai & Banerji, JJ. as supporting his contention that even if the minor party does not object to the award, and it is beneficial to him, it is open to an adult member to challenge the award on the ground of non-compliance of the mandatory provisions of Order 32, Rule 7, of the Code, because it makes the whole proceeding null and void.
In the case decided by Sarjoo Prosad, J. it will appear that the plaintiffs, of whom plaintiffs 3 and 4 were minors, were petitioners before him. It appears that no objection was filed to the award by any of the parties to the award, but the plaintiffs including the minors preferred an appeal against the decree passed on the basis of the award, on the ground that the reference was incompetent, and the award was on the face of it illegal, because of non-compliance or Order 32, Rule 7.
The appeal of the plaintiffs against the decree passed on the basis of the award was dismissed, and therefore, they came up in revision against the order of the lower appellate court, dismissing their appeal, and overruling their objections. His Lordship relied on ILR 18 Pat 271 : AIR 1939 Pat 278 (C), in which it was held that "the omission to obtain leave renders an award or any decree based upon it voidable at the Instance of the minor".
In those circumstances his Lordship held that the award based upon such a reference was not a valid award, and could not be given effect' to; and the reference itself being illegal, the whole proceeding, which followed thereafter, must be held to be illegal. It is clear, therefore, that in this case the illegality was brought before the first appellate court by the plaintiffs including the minors, and, therefore, his Lordship observed that when the attention of the superior court was thus drawn to the illegality committed by the trial court, while making the order of reference, and when once the appellate court was apprised of the illegality, it was not possible for that court to have shut its eyes.
9. The other case strongly relied upon is AIR 1955 Pat 277 : 1953 BLJR 52 (B). But in this case also the appeal before the lower appellate court was filed by one of the minors, namely, minor defendant 5, and, therefore, the objection regarding non-compliance of Order 32, Rule 7, of the Code of Civil Procedure was upheld.
10. The cases relied upon strongly by Mr. A, S. Sinha, therefore, are of no help to him.
11. Two other cases, decided by Reuben, C. J, and Choudhary, J on 19-8-53 and 28-8-53 reported in Abjum Bibi v. Hazrat All Khan, AIR 1955 NUO (Pat) 1862 (I) and Nural Huq v. Abdul Huque, AIR 1955 NUO (Pat) 1863 (J) are also to the same effect. This question also arose for decision in M. A. 286 of 1951 Sita Gope v. Haricharan Gope (K) decided by Das, C.J. and Naqui Imam, J. on 22-4-1955. But his Lordship Das, C. J. did not decide his point specifically, and decided the appeal on the assumption that the failure to obtain leave of the Court merely made the award and the decree passed thereon voidable at the option of the minors.
12. A review of all these authorities, therefore, firmly establishes that an agreement for a reference to arbitration without obtaining leave of the Court, as required by Order 32, Rule 7, of the Code of Civil Procedure, where a minor is a party to litigation, will render the reference and all subsequent proceedings founded on that reference invalid only at the option of the minor, and not at the instance of an adult party. A similar strain of thought is also revealed by the decision in Rama-nathan v. Veerappa, AIR 1956 Mad 89 (L).
13. In the result, the rule is discharged, the application fails, and is dismissed with costs.