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Present: Pereira J.
ABANCHI APPU FERNANDO.
395—0, R. Matale, 10,961.
Compulsory reference to arbitration—Action relating to matters of account—Appeal from order entering up judgment according to award on acompulsory reference—Court of Requests.
To justify a compulsory reference of the matters in dispute inan action to arbitration, it is insufficient that the action merelyrelates to matters of account. It is farther necessary that it shouldbe found by the Judge that the matters of account are of anintricate and complicated character, and that therefore the actioncannot conveniently be tried in the ordinary way.
An appeal lies from an order by a Court of Bequests entering upjudgment according to an award on a compulsory reference toarbitration to the same extent that an appeal lies generally fromorders and judgments of Courts of Bequests.
fjlHE facts appear from the judgment.
Wadsworth, for defendant, appellant.—The order of reference wasultra vires* Section 5 of Ordinance No. 15 of 1866 states under
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what circumstances matters of account can be compulsorily referred*to arbitration. In this case the simple question was whether acertain payment was made on a certain day, and thus acted as abar to prescription. This could have been conveniently tried in theordinary way. There was no evidence before the arbitration of thepayment pleaded by the plaintiff.
Vernon Chenier, for respondent.—There is no appeal from ajudgment based on an award of an arbitrator. The evidencegiven before the arbitrator is not governed by the rules of evidencein tiie Evidence Act (section 1 of Ordinance Nc. 1% of 1895). If thearbitrator was satisfied that there was the payment, his finding isoonclusive, whatever the nature of the evidence may have been.
Wadsworth, in reply!—An appeal lies from an award in the caseof compulsory reference to arbitration (section 28 of Ordinance No. 15of 1866). , The Civil Procedure Code deals only with voluntaryreference by the parties to arbitrator. Section 5 of the Ordinancelays down that the award of the arbitrator should be treated as ifit were a finding of the Court on the particular matter, and thereforean appeal would lie in accordance with the rules laid down as toappeal from orders in Courts of Bequests. Section 1 of the EvidenceAct also refers to voluntary reference to arbitration, and not tocompulsory reference.
Cur. adv. vult.
November 24, 1914. Pereira J.—.
In this case the matters in dispute between the parties appearto have been compulsorily referred by the Commissioner to thearbitration of Mr. Gould, Proctor. The order of reference is asfollows: ” The matter is one of accounts, with a simple questionof law as to prescription. The Court can compel arbitration intins case. Issue commission to Mr. Gould to decide all matters oflaw and fact in the case on deposit of funds.” This order wasclearly vitro vires. Under section 5 of Ordinance No. 1.5 of 1866it is only when it appears to the satisfaction of the Court that anaction relates wholly or in part to matters of mere account of anintricate and complicated character, which cannot convenientlybe tried in the ordinary way, that the Court is given the power toorder that such matters, either wholly or in part, be referred toarbitration. The order of the Commissioner cited above showsthat the- case did not fall within the scope of Ordinance No. 15 of1866. However that- may be, it has been argued .that the defendanthad no right of appeal from the order of the Commissioner entering .iip judgment in terms of the award. Section 2 of the Civil ProcedureCode repeals sections 20 to 29 of Ordinance No. 15 of 1866 as regardsvoluntary references, and it is provided in section 28 of the Ordi-nance that when judgment is given in any case of compulsoryreference, “ such judgment shall be subject to appeal.” The appeal
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here contemplated is not an appeal involving questions of fraud,miseondudt, or the like on the part of the arbitrator, but on appealon the question of the soundness of the judgment. Section 5 ofthe Ordinance provides that the award of the arbitrator, subject tothe subsequent provisions of the Ordinance, should be treatedas if it were a finding of the Court on the particular matter referredto arbitration. That being so, rules of appeal generally applicableto appeals from orders of Commissioners of Bequests would beapplicable .to a judgment entered up in terms of an award in anarbitration on a compulsory reference; in other words, such orderwould be appealable on any matter of law in an action for therecovery of some debt, damage or demand.
In the present case, as matter of law, objection has been taken tothe judgment on the ground that .the arbitrator had no evidencebefore him of the payment by the defendant to the plaintifE of thesum of Bs. 30 on the 16th October, 1913. It was, of course, necessaryto prove this payment as a bar to prescription. I think that theobjection is well founded. On the objection being taken, it wasargued by .the respondent’s counsel that according to section 1 ofthe Evidence Ordinance that Ordinance did not apply to proceed-ings before an arbitrator. I am not sure that the word * * arbitra-tor ” here was intended to include an arbitrator in the case of acompulsory reference. The provision has been taken bodily fromthe Indian Evidence Act, and I am not sure that there is any lawin India providing for a compulsory reference to arbitration. Any-way, I find in The Law of Evidence applicable to British India,by Ameer Ali and Woodroffe, that the learned authors in theircomments on section 1 observe as follows: " Though the Act doesnot apply to proceedings before an arbitrator,-yet the latter mustnot receive and act upon evidence or decide upon grounds whichrender his award utterly unfair or worthless.”
Now, as regards the merits of the objection, I see no evidencewhatever that the sum of Bs. 80 was paid by the defendant. Theplaintiff himself vaguely refers to a payment of Bs. 30 made.to him,and a receipt being issued by his clerk to the defendant. He doesnot pledge himself to the statement that the payment was made bythe defendant, or that the receipt was handed to or received by thedefendant. It is clear, that the defendant himself did not pay themoney, because the witness Wimalasuriya says that it was paid“ on behalf of the defendant.” He gives no particulars as to whopaid the money, or as to . why the defendant should be identifiedwith the alleged payment. The entry in the book stands withoutcorroboration. For these reasons I quash all proceedings on andafter the 9th. September, 1914, and remit the case for trial by theCommissioner in due course. Each party will bear his own costsincurred so far.
ABANCHI APPU v. FERNANDO