021-NLR-NLR-V-66-S.-KRISHNAN-Appellant-and-VAIRY-Wife-of-K.-Kanapathy-and-another-Respondent.pdf
66
HERAT J.—Krishnan v. Vairy
1964Present: Herat, J.
S. KRISHNAN, Appellant, and VAIRY (Wife of K. Kanapathy) and
another, Respondents
S. C. 53/60—C. R. Mallakam, 15,667
Compromise of action—Rei vindicatio action—Agreement of parties that the Courtshould decide the case after inspection—Questions of law involved—Applicability of provisions relating to reference to arbitration—CivilProcedure Code, s. 676 (1) (2).
Plaintiff-appellant sued the 1st and 2nd defendants-respondents for declara-tion of title to a certain allotment of land. On the trial date the plaintiff andthe 1st defendant, and their respective lawyers, signed the record and consentedto all matters arising and in issue between them to be decided by the Commis-sioner after the latter had inspected the land. The pleadings showed thatcomplicated questions of law as to inheritance were involved in the case.
Held, that the agreement to allow the Commissioner to decide the case onthe inspection constituted the Commissioner an arbitrator and not a judge,and amounted to an application to refer to arbitration to which the provisionsof sub-sections (1) and (2) of section 676 of the Civil Procedure Code wereapplicable.
Appeal from an order of the Court of Requests, Mallakam.
Ranganathan, for Plaintiff-Appellant.
No appearance for Defendants-Respondents.
Cur. adv. vult.
January 29, 1964. Herat, J.—
The Plaintiff-Appellant sued the 1st and 2nd Defendants-Respondents.for declaration of title to a certain allotment of land depicted in thePlan filed of record. The Plaintiff-Appellant also stated that his bound-ary had become confused with the boundary of the Respondents’ land
HERAT, J.—Kriahnan v. Vairy
07
and claimed a definition of boundaries. On the trial date the Plaintiff-Appellant and the 1st Defendant-Respondent, and their respectivelawyers signed the record and consented to all matters arising and inissue between them to be decided by the learned Commissioner ofRequests after the latter had inspected the land. A perusal of thepleadings shows that complicated questions of law as to inheritanceetc. arose between the parties. How the learned Commissioner wasgoing to decide these questions after an inspection of the land staggersone’s imagination. The learned Commissioner, however, after inspect-ing the land heard some argument from Counsel and dismissed thePlaintiff-Appellant’s action with costs. From the order and decreedismissing that action the Plaintiff-Appellant now appeals.
Section 676 (1) of the Civil Procedure Code is as follows : “If all theparties to an action desire that any matter in difference between themin the action be referred to arbitration, they may at any time beforejudgment is pronounced apply, in person or by their respective Proctors,specially authorised in writing in this behalf, to the Court for an orderof reference.
Every such application shall be in writing, and shall state theparticular matters sought to be referred, and the written authority ofthe proctor to make it shall refer to it, and shall be filed in Court at thetime when the application is made, and shall be distinct from any powerto compromise or to refer to arbitration which may appear in the proxyconstituting the proctor's general authority to represent his client in theaction.”
I am of opinion that the agreement to allow the Commissioner todecide the case on the inspection constituted the Commissioner anarbitrator and not a judge, and amounted to an application to refer toarbitration. In that case the application was bad for two reasons.All the parties did not apply, the second Defendant-Respondent didnot sign the record. There was also an obvious error in compliance withthe imperative requirement of Section 676 Sub-Section 2 quoted above.The subsequent proceedings and order are therefore rendered illegaland void. When the Civil Procedure Code lays down in clear unmis-takable terms how any matter should be done, slipshod arrangementsshould not be entertained. I therefore set aside the order and decreeappealed from and allow the appeal.
The case is sent back to be set down for trial in. the normal coursebefore another Commissioner.
The Plaintiff-Appellant is entitled to the costs of Appeal.
Order and decree set aside.