( 3M> )
CASIM LEBBE MARIKAR v. SAMAL DIAS.D. C., Kalutara, 1,502.
. >896,'Septembet It.
Reference to arbitration—Application in writing—Special authority toProctor—Civil Procedure Code, chapter LI.
A reference to arbitration is bad unless it be made on an appli-cation made in -writing either by the parties or by the prootoraspecially authorized in that behalf, and the want of these formalitiesis not cured by the parties subsequently appearing before thearbitrator.
JN revision. The facts appear in the judgment.
Weinman, for applicant for revision.
Van Langenbetg, for defendant, respondent.
15th September, 1896. Bonseb, C.J.—
This case has been brought before us in revision upon theapplication of the plaintiff, who has petitioned the Court. Theplaintiff brought his action in the District Court of Kalutara toassert his right to certain cocoanut trees, which right, he alleged,had been infringed by the defendant. In the course of the proceed-ings it appeared that the only question between the partieswas as to what trees constituted the third and fourth plantationsrespectively, the plaintiff claiming that the fourth plantationconsisted of a large number of trees, whereas the defendant allegedthat the greater part of the trees claimed by plaintiff did not belongto the fourth, but.to the third plantation. It was common groundthat the plaintiff was only interested in the fourth plantation.
On the day of trial the District Judge recorded this minute :—
" With regard to the second issue as to the quantity and quality“ of the fourth plantation, the parties agree to reference of the“ matter to Mr. Proctor H. J. Gunawardena as arbitrator. Let“ him be instructed to inspect the land, and submit his award as“ to number and nature of trees in detail, both of the third and“ fourth plantations on the land.”
That minute is signed by the District Judge. On the 8th ofApril it is recorded that Mr. Gunawardena hands in his award,and on the 11th of Aprij judgment is delivered, in which the District,Judge says:—
“ Mr. Gunawardena’s award, dated 8th instant, having been filed“ I proceed to give judgment according to the award, which is“ confined to the second issue on wjnch.the parties have gone to“ trial.”*
And he proceeded to dismiss the plaintiff’s action with costs.It has been decided by this Court that .the provisions of the law
( 320 )
September 15.Bo N8EXt,C.J.
with respect to reference by the Court of matters in dispute toarbitration must be strictly construed, and that the provision thata reference should only be made on an application to be madein writing either .by the parties or by their proctors speciallyauthorized in that behalf must be strictly observed.
It is not sufficient that the parties, being present in Court,should signify their assent to the District Judge, and that he shouldmake a minute to that effect, which appears to have been donein the present case.
Chief Justice Cayley, in one of the cases cited (D. C., Kalutara,33,434, 3 8. O. G. 154) stated that the reason for this was “ that“ there is so much proneness on the part of the legal practitioners“ in this country to refer pending cases on the day of trial to“ arbitration, that it is of great importance that the consent of the“ parties themselves should be formally, expressly, and deliber-“ ately given.”
It has also been held that a reference to arbitration made withoutcomplying with these formalities was absolutely void, and thatthe defect was not cured by the parties subsequently appearingbefore the arbitrator. It is true that these decisions were priorto the enactment of the Civil Procedure Code ; but the provisionsof Ordinance No. 15 of 1866 have been substantially re-enactedin Chapter LI. of the Code; and it is admitted by Counsel thatno distinction could be drawn between the two enactments. Thatbeing so, the provisions of Ordinance No. 15 of 1866 will applyto chapter LI. of the Code. We are therefore bound to hold thatthe reference to arbitration was void, and that the judgment mustbe set aside and the case remitted to the District Court for trialof the issues raised.
There is no question on which the natives of this country moredesire to have a decision of a court of justice than those involvingrights to land, or to the produce of trees growing thereon.
In consequence of this the Legislating insists upon a mo^tdeliberate expression of assent to be given to the application thatthe question be .referred for determination, and requires suchassent to be specially evidenced by writing distinct from the proxyordinarily given to a proctor. And although elaborate proxieshave been devised to evade Ibis requirement if possible, yet theordinary litigant seldom reads or understands the proxy he signs.The requirement of a separate special proxy ought therefore to beenforced.
CASIM LEBBE MARIKAR v. SAMAL DIAS