110-NLR-NLR-V-53-PAUL-FERANANDO-Appellant-and-EUGENE-FERNANDO-et-al.-Respondents.pdf
486
Paul Fernando t>. Eugene Fernando
1981Present : Rose C.J. and Gratiaen J.PAUL FERNANDO, Appellant, and EUGENE FERNANDO et al.,-Respondents
S. C. 162—D. C. (Inty.) Kalutara, 26,967
Arbitration—Scope of—Relation to pleadings.
– « .
An agreement to arbitration should not include matters which are outsidethe scope of the pleadings in the action.
» 5th ed„ Vol. IV., p, 10S.
BOSS C.X—Paul Fernando e. Eugene Fernando
4ST
A PPEAL from an order of the District Court, Kalutara.
The 1st plaintiff sued the defendants for declaration of title to 1/5 shareof a land described in the schedule to the plain and for damages. Theplaintiff also instituted a similar action in Case No. 27,119 againstone Emmanuel Fernando for declaration of title in respect of 1/5 share ofthe lands described in the plaint in that action. The defendants in bothactions were brothers and the property in question had been inherited fromtheir father D. Peduru Fernando who left other heirs too. Beforethe trial, but after the issues were framed, the parties agreed that
the possession of the land belonging to the estate of D. Peduru Fernandoand (2) the exchange of the lands possessed by either of the parties bereferred tothe arbitration of Mr. Advocate E. S.Fernando. Atthe
subsequentarbitration objectionwastaken to thecontinuance ofthe
proceedingson the ground thatthereference wasultra vires andthe
objection was urged afresh beforetheDistrict Judgewhen it was sought
to make the award an order of Court. The objection was overruledby the District Judge. The defendants appealed.
H. W. Jay ewar dene, for the defendant appellant.—The award isultra vires. The award deals with 44 lands belonging to the inheritancewhereas the action involved only 14 lands. A. reference to arbitrationmust be confined to matters coming within the scope of the action andthis is to be determined by a reference to the plaint. PeddapalayamBadachari v. Peddapalayam Muniyachari 1; Bawa Gangaram v. Keshav-das Dewandas and others 2; Taranath Chowdry v. Manick Ghunder Doss 3.
J. A. L. Cooray, with J. B. M. Perera, for the plaintiffs respondents.—The reference to arbitration is valid. Although the plaint deals with 14lands, the basis of the plaintiff’s claim is his share of the whole paternalinheritance, and that is the “ matter in difference ” between the parties.See Loku Banda v. Piyadassa Unnanse *.
Even if the reference is bad, the defendant is estopped from disputingits validity, having signed the application for reference and taken partin the proceedings—Woodroffe and Ameer Ali, Law of Evidence, 9thEdition, p. 859.
December 3, 1951. Rose C.J.—
In this matter it is with regret that I haye come to the conclu-sion that the agreement to arbitrate purported to be come to by the partieson the 4th of May, 1949, isbadinthat it included matterswhichwere
outside the scope of the pleadings inthe action. That beingso, theonly
order that can be made is that the appeal be allowed and the matterremitted to the District Court to be determined according to law. Owingto the attitude adopted' by the defendant-appellant in this case I considerthat the fair order is that he should pay the costs of the arbitrationproceedings. The respondents must pay the costs of this appeal, but thecosts of the proceedings before the District' Judge will be in the cause.
Obatiaen, J.—I agree.
Appeal allowed.
1 A. I. R. (1921) Madras 709.*14 Sutherland's Weekly Reporter 469.
* A. I. R. (1937) Sind 174.»(1917) 4 O. W. R. 155.