106-NLR-NLR-V-18-MENIKE-v.-UKKU-AMMA.pdf
( 418 l
Present: Wood Benton C.J. and De Sarppayo A.J.
MENIKE v. UKKXJ AMMA.210—C.R. Kurmegala, 22t023.
Reference to arbitration—A qrcement of parties during trial entered ofrecord by Judge and 'signed by parties—Civil Procedure Code,s. m.
At the trial' parties agreed to refer the matter in dispute to thearbitration ofU,dnd theCommissioner madeanentry to that
effect. This was signed by the Commissioner and the parties.
Held, thattheprovisionsof section 676 oftheCivil Procedure
Code were satisfied, and the order of reference to arbitration wasnot bad.
T
HE facts are set out in the judgment. This case was reservedfor argument before two Judges by Be Sampayo A.J.
B. *T. de Silva, for the appellant.—The reference to arbitrationwas signed by the parlies. A separate document applying for anorder of reference to the Court is not necessary. The provisions of
J (1913) 17 N. L, R. 67.* (1606) 9 L. B. SSL
mo.
19ft.
*O
Aferiike v.Vkku Amma
( 414 )
9
section 876 have been satisfied by the parties signing the entry on *the record.
• •
Even if the reference is bad, the parties are estopped fromdisputing its validity, as* they appeared before the arbitrator andcalled evidence. The decisions on this point are conflicting.
July 12, 1916. Wood Renton C.J.—
This is an action for declaration of title. Various issues suggestedby the pleadings were drawn up, and then we come to an entry bythe Commissioner of Requests in these terms:—^
The parties agree to refer all matters in dispute between them tothe arbitration of Mr. .7. W. Udnlagama, Interpreter Mudalivar of thisCourt, whose award shall be final.
This agreement wa6. “ allowed M by the Commissioner ofRequests, and the whole entry is authenticated by his signatureand by the marks of the parties, to whom the entries are stated tohave been explained by Mr. .ITdulagama, the Interpreter Mudaliyar.
' At the arbitration proceedings the defendants, as well as the'
plaintiffs, appeared before* the arbitrator, who in due time madehis award. The defendants thereupon .took exception to theaward, on the ground that the reference was irregular, inasmuch asthere had been no application for a reference withinr the meaningof section 676 of the Civil Procedure Code. The Commissioner ofRequests upheld this objection, * set aside the award, and fixed thecase for trial. The plaintiffs appeal, and urge two points upon us:in the first place, that there is no irregularity in the reference itself,and in the next place that, even if there were, the. defendants havingappeared before the arbitrator are estopped from relying upon it*There is no need to consider the latter point, which has formed thesubject of numerous decisions of this Court, collected in PitcheTamby v. Fernandoalthough in that case the Court expressedthe opinion that it might be necessary at some later date to considerbow far the doctrine of estoppel was capable of being applied, witha view to curing irregularities in arbitration proceedings. I am ofopinion that the appeal is entitled to succeed on the firet point.The present case appears to me to be distinguishable from theentire group of authorities, of which Gaeim Lebbe Marikar v. SamalDias8 may be taken as an instance, and in which it was held that areference to arbitration is bad unless it be made upon an applicationin writing, either by the parties themselves or by their proctorsspecially authorized in that behalf. The allowance, by the Com-missioner of Requests of the agreement of the parties, and theauthentication of that agreement; not merely by his signature butby the marks of the parties themselves, seem to me to constitutegood evidence that there was here such an application to the Court
* (1910) 14 V. L. R. 73.* (1896) 2 N. L. B. 319.
( 415 )
as vlll satisfy even the letter, and certainly the spin!), of section W&676 of thp Civil Procedure Code. But I would desire to call the ®wooa>°attention of the courts of i^rst instance to the importance of seeing Zta&nm C.J.that there is on the face of the record affirmative evidence of theassent of both sides to a proposed reference .to arbitration, which Utyp Ammait is the main object of the provisions of section 676 of tfre Civil*
Procedure Code to secure. I would set aside the order under appealand send the case back for whatever further inquiry an<f adjudicationmay be necessary in regard to any outstanding objections to theaward. After these have bean disposed of, the Commissioner ofBequests wjM enter up the judgment which the v circumstances ofthe o&se 'require. The plaintiffs are entitled to the costs of theappeal; all other costs should be in the discretion of the Commis-sioner of Bequests.
De Sabdpayo A.J.—I agree.
Set aside.