P L D 1953 Lahore 284 (PLP)

S. A. RAHMAN, J.

This is a Letters Patent appeal from an appellate judgment of a learned single Judge of this Court passed in an arbitration matter. The relevant facts are as follows. Mst. Allah Wasai, widow of one Allah Wasaya and her four daughters, brought a suit against Manzoor Ahmad and Zahoor Ahmad, sons of Allah Wasaya, and Muzaffar-ud-Din, a transferee from Manzoor Ahmad, for possession of their 36/64th share in the house property left by Allah Wasaya, deceased, by way of partition, Apparently Zahoor Ahmad had also filed a separate suit for partition in respect of the same property, which was pending in another Court. Manzoor Ahmad and Muzaffar Din were parties to that suit but the plaintiffs in this suit were not impleaded as parties thereto. On the 16th of June 1950, an agreement by the parties to this suit was filed in Court in which it was prayed that the whole suit should be referred for decision to the arbitration of the three lawyers of the parties. In case of difference of opinion the majority decision was to prevail. The arbitrators thus appointed were Khalifa Mumtaz Hussain, counsel for the plaintiffs, Mr. Qadeer Ahmad, counsel for the first and second defendants, and Mr. Faiz Rasool, counsel for the third defendant. The matter was duly referred to the arbitrators who eventually made two awards. Six houses were involved in the dispute. Khalifa Mumtaz Hussain and Mr. Qadeer Ahmad awarded in house No. 1, 8/64th share to plaintiff No. 1, 7/64th share to plaintiffs Nos. 2 to 5, 14164th share to defendant No. 1 and 14164 share to defendant No.

2. According to their award, moreover, in houses Nos. 2 to 6 the plaintiffs were entitled to 7164th share each, Zahoor Ahmad defendant No. 2 to 14/64th share and Muzaffar-ud-Din defendant No. 3 to 15/64th share. They held that Manzoor Ahmad, defendant No. 1 was not entitled to any share in these five houses. The two arbitrators, who were responsible for the majority decision, left the actual division of the house property to re made by a local com missioner to be appointed by the Court, though they gave certain directions as to the mode of partition. In the dissenting award of Mr. Faiz Rasool it was declared in respect of houses; No. 2 to 6 that plaintiffs Nos. 1 to 4 and defendant No. 1 were not entitled to any share, that plaintiff No. 5 Mst. Mumtaz Begum minor was entitled to 7/64th share, Zahoor Ahmad minor defendant No 2 to 14/64th and Muzaffar-ud -Din defendant No. 3 to the remaining 43/64th share. He agreed with the other arbitrators in respect of house No. 1 as well as in the recommendation that a local commissioner be appointed by the Court to effect the division by metes and bounds. The plaintiffs applied for having the majority were made the role of the Court. Muzaffar-ud-Din lodged objec tions to that award. The main objection charged the arbitra tors with misconduct. Inter alia, it was also asserted that the arbitrators had failed to decide all the matters referred to them and the award was, therefore, incomplete. The trial Court dismissed the objections as unsubstantiated. Muzaffar-ud-Din appealed to this Court and the first appeal was heard by M. Khurshid Zaman, J. Apparently at the time of the arguments only two contentions were raised before the learned single Judge: (1) that the award did not deal with all the matters in dispute though the arbitrators had been appointed for the decision of the whole suit, and (2) that Khalifa Mumtaz Hussain, by accepting engagement as counsel on behalf of the plaintiffs in the other suit referred to above, had mis-conducted himself. The second objection had not been raised before the arbitrators or in the trial Court. In any case, the learned single Judge thought that there was no force in this objection, as the parties had agreed that the decision of arbitrators in the present suit would also be accepted as decisive of the other suit. On the first contention, the learned single Judge was of the opinion that the failure of the arbitrators to record a specific finding on the question whether the suit for partial partition was competent or not did not vitiate their award as the arbitrators were not bound to give a finding on each issue in dispute and that, though the arbitrators had not carried the actual division of the property in accordance with the declared shares, yet it was unnecessary to remit the award back to the arbitrators for the completion of that task. He was of the view that it made no material difference whether the local commissioner with the requisite qualifications for carrying out the work of actual partition, was appointed by the arbitrators or by the Court. He, however, thought that the appointment of Khan Muhammad Abdullah Khan, Advocate, Multan, as local commissioner for that purpose by the trial Court was open to objection as the appointee had no special engineering qualifications. He, therefore, set aside that appointment and directed the lower Court to issue a commission to a qualified engineer to carry out the division of the property. A preliminary objection was taken on behalf of the res pondents that the Letters Patent appeal was not competent in the face of subsection (2) of section 39 of the Arbitration Act, 1940, (hereinafter referred to as the Act). This subsection reads as follows:- "(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to His Majesty in Council". Subsection (1) of section 39 of the Act provides for an appeal from certain specified orders of the trial Court to the Court authorised by law to hear appeals from original decrees of the Court passing the order. It, inter alia, declares that an appeal would lie from any other order, subject to the proviso that the provisions of this section would not apply to any order passed by a Small Cause Court. This section replaced the relevant part of section 104 of the Code of Civil Procedure, 1908. It is contended on behalf of the respondents that this Letters Patent appeal is a "second appeal" within the meaning of subsection (2) of section 39 of the Act and, therefore, is not competent. There is a conflict of judicial opinion on this point. In Hanuman Chamber of Commerce Ltd. v. Jassa Ram Hird Nand (A I R 1948 Lah. 64), a Division Bench of this Court held that the ex pression "second appeal" occurring in subsection (2) of section 39 of the Act does not include a Letters Patent Appeal and that this subsection cannot be construed at taking away the right of such an appeal either expressly or by necessary impli cation. The same view was taken by a Division Bench of the East Punjab High Court in Banwart Lai Ram Deo v. The Board of Trustees, Hindu College, Delhi (A I R 1949 E. Pb. 165). A contrary view was expressed by the Calcutta, Madras and Bombay High Courts in the authorities reported as R. Wright & Partner Ltd. v. Governor-General in Council (52 C W N 224), Penugonda Radha-Krishna murthy v. V. A. Y. Ethirajulu Chetty & Co. and another (A I R 1945 Mad. 184 (D. B.)) and Madhavdar Devidas and others v. Vithaldas Vasudeodas and others. (A I R 1952 Bom. 229 (D. B.)) The ratio decidendi of the Calcutta cases was that the provisions of the Letters Patent were subject to the legis lative powers of the Governor-General in Legislative Assembly and that the Arbitration Act, 1940, was a special enactment controlling the general right of appeal given by clause 15 of the Letters Patent of that Court. Reference was made by the learned Judge to the pronouncement of the Judicial Committee of the Privy Council in Harish Chander Chaudhry v, Kali Sundarl Debia ((1883) I L R 9 Cal. 482) wherein it was laid down that the provision of section 588 of the Civil Procedure Code of 1887, which were worded almost similarly to those of subsection (1) of section 39 of the Arbitration Act, did not prevent an appeal to the High Court from an order of a Judge of that Court sitting singly under clause 15 of the Letters Patent. It was remarked by the learned Judges in that connection that the Code of Civil Procedure may be regarded as a general law vis-a-vis the Letter Patent and, consequently, the special provisions contained in the Letters Patent could not be deemed to have been overridden by the Code of Civil Procedure unless there are clear words to that effect in the Code. But vis- -vis the Letters Patent, the Arbitration Act was according to the learned Judges, a special Act and, therefore, the general right of appeal given under clause 15 of the Letters Patent was curtailed by the special provisions of section 39 of the Act. In the Madras case, in a brief judgment, it was observed that clause 15 of the Letters Patent, if it stood alone, would allow the appeal; but clause 44, Letters Patent, made these provisions subject inter alia to the legislative powers of the Governor General in Legislative Council and, as the Indian Arbitration Act, was an Act of the Central Legislature, the provisions of section 39 of the Act must prevail. In the Bombay case, a Division Bench of the Bombay High Court refused to accept the contention that the words "second appeal" occurring in subsection (2) of section 39 of the Act were used as a technical expression to denote certain appeals which were defined and known as "second appeals" in the Court of Civil Procedure, 1908. They pointed out that "second appeals" in the Code of Civil Procedure were a well defined set of appeals, which all lay to the High Court and which were all appeals from decrees. On that view, it would have been unnecessary, according to the learned Judges, to exclude from the operation of subsection (2) of section 39, appeals to His Majesty in Council. On the contrary, they thought that this express exclusion was necessary, because a literal interpretation of the words "second appeals" would include an appeal to His Majesty in Council, when the appeal to the High Court was a first appeal. They, therefore, favoured the literal interpretation of the expression "second appeals". The decisions of this Court and the East Punjab High Court were cited before them but the view, that an intro-Court appeal such as a Letters Patent appeal is as distinguished from an appeal from an inferior Court to a superior Court, is not hit by section 39 of the Act, did not find favour with the learned Judges. That consideration according to them, might apply possibly to subsection (1) of section 39 but not to sub section (2) thereof. They recognised that an anomaly might arise inasmuch as if the first appeal is disposed of by a single Judge his order would become final, but, if it was referred to a Division Bench for decision, a further appeal would be competent to the Supreme Court of India under section 109, C. P C. as well as Art. 133 (1) of the Indian Constitution. They thought. how ever, that the remedy lay with the Legislature and the existence of this anomaly could not affect the interpretation of the section. With all respects for the opinions expressed by the Calcutta, Madras and the Bombay High Courts, we are not convinced that the view taken in Hanuman Chamber of Commerce Ltd., Delhi v. Jassa Ram Hira Nand by this Court is really open to exception, It would be useful by way of analogy to quote the observations of their Lordships of the Privy Council in Hurrish Chunder Chaudhry v. Kali Sundari Debia in respect of section 588 of Act X of 1877. Their Lordships expressed themselves as follows:- "It only remains to observe that their Lordships do not think that section 588 of Act X of 1877, which has the effect of restricting certain appeals, applies to such a case as this, where the appeal is from one of the Judges of the Court to the full Court." We do not see any strong reason why a principle thus laid down should not be adopted while interpreting subsection (2) of section 39 of the Act. After all, the Letters Patent does give the right of appeal from the decision of a single Judge and that right can only be taken away either by express enactment or by neces sary intendment by subsequent legislation. It may be conceded that the provisions of the Letters Patent are subject to the legislative powers of the Governor-General in Legislative Assembly and that the Arbitration Act, 1940, is a Central Act. The ques tion, however, is whether it was the intention of the Legislature to take away the right of appeal accruing under the Letters Patent. There are no express words to that effect in the subsection and the reluctant to hold that the existing right had been there was no escape from that conclusion, on the basis of the luggage employed by the Legislature. A Letters Patent Appeal is not really an appeal in the strict sense. It may be more aptly described as an internal arrangement of the Court for reviewing its own decision given in the first instance by one member of the Court. The first as well as the second decision re mains a decision of the Court. If the expression "second appeal" in subsection (2) of section 39 is interpreted as meaning an appeal from an inferior Court to a superior Court, the whole difficulty would vanish. There seems to be no pressing consideration militating against such an, interpretation. On the strength of the Privy Council decision referred to above, it was held by the High Court of Calcutta, Madras and Bombay that section 588 of the old Code of Civil Procedure did sot take away the right of appeal given by the Letters Patent. Reference in this connection may be made to Toolsee Money Dasyee v. Sudevi Dassee (I L R 26 Cal. 361 (1899) (F B)), Sabhapathi Chetti v. Narayansaini Cherti (I L R 25 Mad. 555) and The Secretary of State for India in Council v. Jehangir Moneckji Cursetji (4 Bom. L R 342 (1902)). The Allahabad High Court, however, was of the view that the Judicial Commit tee's decision did not lay down any general proposition of law and it should be construed as an authority applying to the facts of that particular case vide Banno Bibi v. Mehdi Hussain (I L R 11 All. 375 (1889)) and Muhammad Naim Ullah Khan v. Ihsan Ultap Khan (I L R 14 All. 226 (1892)). Pro bably in consequence of this conflict of opinion, while enacting section 104 of the Civil Procedure Code of 1908, which corresponds to section 588 of the old Code, in subsection (1), the words were added "save as otherwise expressly provided in the body of this Code or by any law for the time being in force". There is also section 4 of the C. P. C. which provides that, "in the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed by or under any other for the time being in force". It may therefore, be reasonably argued that the position in respect of section 104 of the C. P. C. is different from that with regard to section 39 of the Act, as no such saving clauses occur in the Act. But under the old C. P. C. of 1877, the position that obtained in relation to section 588 was similar to that under the Act. It is further important to notice that subsection (2) of section 104 enacts that no appeal shall lie from any order passed on appeal under subsection (1), but in Ramlal Hargopal v. Kishanchandra and others (A I R 1924 P C 95), it was held that the provisions in subsection (2) of section 104 deal with internal appeals within the limits of British India and there is nothing in ''this section to take away the general right of appealing to the Crown given by section 109 of the Code. On the analogy of this decision of their Lordships of the Privy Council and that in Harish Chander Chaudhry v. Kali Sundari Debia, we are of the opinion that subsection (2) of section 39 of the Act does not destroy the right of a litigant to appeal under the letters Patent. A Letters Patent appeal is, therefore, not include the expression "second appeal" occurring in this subsection interpretation would make it unnecessary to bring a maxim generalia specialibus non derogant. We, therefore, repel the preliminary objection as unsound. There is a good deal of force in the contention raised on behalf of the appellant by Mr. Akhlaque Hussain that the arbitrators had not decided the whole matter referred to them. It is his contention that they should have themselves, if neces sary, appointed a commissioner to effect actual partition of the property and, after considering his report, to allot various por tions to the parties concerned. Instead they delegated those func tions to the Court, which can under rules 13 and 14 of Order 26, C. P. C. vary, confirm or set aside the report of the com missioner, This function could not have been delegated by the arbitrators to the Court. A direct authority on point is reported as Ghulam Hussain Mulla Adamji v. Sakinabai and others (19 I C 374). In that case, a Division Bench of the Sind Judicial Commissioner s Court held that in a suit for partition and possession referred to arbitration, if the award merely declares the shares of the parties, it falls shoe of the reference and such an award should be remitted to the arbitrator for completion. The learned Judges further observed that if the Court passes an order appointing a Commissioner to make partition, it would be usurping a function which the parties had appointed the arbitrator to perform. Mr. Yaqub Ali khan on behalf of the respondents tried to argue that what was referred to the arbitrators in the present case was the determination of some fourteen issues framed in the case by the Court before the matter was referred to arbitration. These issues did not include the actual partition of the property by metes and bounds. We are unable to subscribe to that view. The agree ment to refer and the order of the Court passed thereon clearly mentioned that the whole suit was referred for determination that the arbitrators. The suit was for possession by partition and clearly, therefore, the actual division of the property also fell to be decided by the arbitrators. The learned single Judge was apparently conscious of this defect in the award, but he thought it would be immaterial whether the Court appointed the commissioner or the arbitrators themselves did so. In view of the provisions of rules 13 and 14 of Order 26, C. P. C. it cannot be said that the delegation of this function to the Court would make no difference to the final result. We are, therefore, unable to agree with the learned Single Judge on this question. In our opinion, the award as filed in Court was not final and decisive of all the matters referred to arbitration inasmuch as the arbitrators had failed to effect the actual division of the property. It is true that the arbitrator could obtain assistance in the performance of their task, but the decision was to be their own in this matter also, as was held in Muhammad Khalil v. Abdul Rahim (A I R 1925 Pat. 810). This being the position; Mr. Akhlaque Hussain has raised the contention that in the circumstances of this case, the award need not be remitted for completion to the arbitrators but should be set aside in view of the fact that his client had made serious allegations of misconduct against the arbitrators and they would be prejudiced against him. The trial Court found no substance in the allegations made on this point against the arbitrators. The questions of misconduct does not appear to have been pressed, except in respect of one point mentioned above, before the learned single Judge. In this connection, however, it was pointed out by Mr. Akhlaque Hussain that there was a petition on the file praying that two certified copies of documents taken from the judicial record of a Court at Sadiqabad (Bahawalpur State) should be admitted in evidence. These documents, according to the learned counsel, would have established that on 20th August 1950, Mr. Faiz Rasool arbitrator was attending the Court at Sadiqabad while the record prepared by the arbitrators showed his presence at Multan on that day. The proceedings of that date also indicate that none of the parties appeared before the arbitrators, whereas the appellant's case was that he had produced two or three witnesses who were orally examined by the arbitrators and in this connection reference was made to the statement of Manzoor Ahmad defendant as D. W. 14 to the effect that he and Muzaffar-ud-Din were both present on that day before the three arbitrators at Mr. Faiz Rasool's house. Mr. Faiz Rasool stated on oath in the trial Court that fie was not present in Multan on that date and he was made to sign the record of proceedings of that day by his colleagues later, on the understanding that his signatures had been inadvertently omitted. The other two arbitrators, Khalifa Mumtaz Hussain and Mr. Qadeer Ahmad stated on oath, on the contrary, that the record of proceedings was cor rect and that Mr. Faiz Rasool was in Multan on that day. In the first place, the admission of the two documents in question into evidence was not pressed before the learned single Judge and, secondly, after seeing those documents, we are not at all disposed to agree that they would have advanced the case for the appellant materially. All that they establish is that Mr. Faiz Rasool had obtained permission of the Bahawalpur State authorities for appearance for certain accused persons in the Sadiqabad Court and that on the date in question some counsel appeared for the accused but his name is not given in the copy sought to be pro duced. This evidence is not conclusive to show that Mr. Faiz Rasool must have been away from Multan on that day. It is con ceivable that, although be had obtained permission to appear as counsel at Sadiqabad, he had not in fact gone there and some other counsel represented the accused in the Sadiqabad Court. The matter is, therefore, left where it was in the trial Court. We also note that the statements made before the arbitrators by the parties on the 9th of October, 1950 and the 20th of October, 1950 and the objections put in by the appellant on the 27th of November 1950 specify that no oral evidence was led by the parties besides their own statements before the arbitrators. Even the application, dated the 30th October, 1950 filed in Court, after the award had been sent to Court, by the appellant (Exh. C. A.), makes it clear that no witnesses had been produced by either party before the arbitrators. The evidence of the two witnesses, P. W, 4 Haji Hasan Bakhsh and D. W. 9 Nabi Bakhsh, who were examined by the appellant, in support of appellant's allegations that they were produced before the arbitrators on the date in question and that no reference was made in the proceedings, to their presence, become unacceptable. We are not, therefore, impressed by the consideration mentioned by Mr. Akhlaque Hussain. Learned counsel then contended that, although the Court' bad power under section to of the Act to remit the award for completion to the arbitrators, it need not do so and it may decide to set aside the award itself as one which is "otherwise invalid" within the meaning of clause (c) of section 30 of the Act. Reference was made to certain English rulings on this point, namely, Ross v. Boards ((1838) 47 Revised Reports 590). In the matter of Arbitration between Marshall and others, and Dresser, Public Officer, etc. ((1843) 3 Q B 878), and Randoll v. Randall ((1805) East's Reports 81, Vol. 7). In these cases, the English Courts refused to file awards which were incomplete and held them to be invalid, it may be noted, however, that before the enactment of the Common Law Procedure Act, 1854, the Courts in England had no power to refer back an award to an arbitrator or unless there was a clause authorising such remission in the agreement to refer. This was pointed out In re. An Arbi tration between, Keighley, Maxsted & Co. and Bryan Durant & Co. ((1893) 1 Q B 405). Prior to 1854, therefore, the Courts could only set aside the award but the position would be different after that year, In Rpm Pratap Chamria v. nurga Prosad Chamria (A I R 1925 F C 293) cited by Mr. Akhlaque Hussain the facts were somewhat different. The arbitra tors had mixed no questions which were not referred to them, with those which formed the subject-matter of the reference, and it was impossible to separate them. The recital in Halsbury's Laws of England, page 663, Volume 1 (Hailsham Edition), paragraph 118 to the effect that an award which does not recite the differences referred to arbitration is bad and unenforceable, is apparently based on the older authorities prior to 1854 and is not conclusive of the procedure to be adopted in such cases, in any event when there is a specific provision contained in section 16 of the Act, we do not see any ground why the award should not be remitted to the arbitrators for completion of their work, in the circumstances of this case. We, therefore, allow this appeal, set aside the order passed by the learned single Judge in Chambers and send back the case to trial Court with the direction that the award should be remitted to the arbitrators for completion in the light of the observations made above. The Court will have to fix a time within which the completed award should be filed and in case that is not done the question of supersession of the award may have to be consi dered. In view of the difficult nature of the question involved in this appeal, we leave the parties to bear their own costs in this Court. A. H. Appeal accepted.