105-NLR-NLR-V-64-V.-THANGARAJASINGHAM-and-wife-Appellants-and-M.-IYAMPILLAI-and-wife-Responde.pdf
Thangarajasingham v. IyampiUai
5C9
1982Present : Tambiah, J., and Abeyesundere, J.
Y. THANGARAJASINGHAM and wife, Appellants, and. M. IYAMPILLAI and wife, Respondents
S. G. 45411960—D. C. Jaffna, 1087fL
Arbitration—Appointment of trial Judge as arbitrator—Legality—Civil Procedure
Code 88. 146 et seq., 676 et eeq., 699 et seq.
A trial Judge cannot be appointed by the parties to an action to act asarbitrator under the provisions of the Civil Procedure Code except as expresslypermitted thereby.
Where, in an action for a right of way and water-course, the parties' invitedthe t.rial Judge to inspect and make an order as “ sole arbitrator ” and agreedto abide by such order—
Held, that there was no right of appeal from the order made by the trialJudge acting as arbitrator. In such a case, the parties must be deemed to havewaived their right of appeal.
Held further, that the order made by the Judge as “ sole arbitrator ” wasillegal and should, in revision. be set aside.
i
570
TAMBIAH, J.—Thangarajasingham v. Iyampillai
Appeal from a judgment of the District Judge, Jaffna.
C. ThiagaMngam, Q.G., with J. N. David, for Plaintiffs-Appellants.
– 1 »
N.Nadarasa, for Defendants-Respondents.
Cur. adv. mdt.
November 13, 1062. Tambiah, J.—
The plaintiffs claimed a half-share of a well situated on the defendants’land and also a servitude of right of way and water-course, leading fromthe well along the southern boundary of the second defendant’s land, tothe second plaintiff’s land. The defendants, while admitting that thesecond plaintiff was entitled to a share of the well in their land, denied thatthe plaintiffs had any right to lead water along the channel along thesouthern boundary of the second defendant’s land and averred that thesecond plaintiff’s predecessor in title drew water from the well by havingaccess thereto along the lane on the north. They further took up theposition that the plaintiffs’ predecessor in title had abandoned the rightto lead water through the second defendant’s land and claimed the landfree from this servitude by prescription.
On the 1st of August, 1960, when the matter came up for trial, theJournal entries read as follows :
“ Present—Plaintiff’s Attorney and deft. Mr. Adv. Kathiravetpillaiinstd. for plff. Mr. Adv. Soorasangaran instd. for deft.—The partiesinvite me to inspect and make an order as sole arbitrator, by whichorder they agree to abide. They sign the record signifying theirconsent. ”
The learned District Judge inspected the place on the 10th of August,1960, and on the 5th of September, 1960, the plaintiffs’ counsel broughtit to the notice of the learned District Judge that the second plaintiff wasnot consenting to abide by the order of the learned District Judge and thatshe wanted the case to be fixed for trial. The defendants’ counsel, onthe other hand, submitted, inter alia, that the inspection had alreadytaken place and that the order should be delivered.
The learned District Judge proceeded to deliver order, the relevantportions of which read as follows :
“ The inspection revealed that the right of way and water-course,has never been used and it could never have been used because of therocky land and the difference in level. In this case the land in whichthe well is situated is on a lower level than the land which claims aservitude. But the share of well has been used obviously by comingalong the lane and taking water. The fences across this alleged rightof way also showed that they are very, very old fences with very, veryold live fence trees and that this right of way could never have beenused. ”
TAMBIAH, J.—Thangarajasingham v. JyampUlai:571
On the 5th of September, 1960, the plaintiffs’ counsel invited thelearned District Judge to look into documents marked P1-P5, andalthough these documents were shown to the learned District Judge, theywere not formally tendered till the 17th of the same month. The docu-ments P1-P5 were produced for the purpose of showing that both thealleged dominant and servient tenements were at one time part and parcelof the same land belonging to the mother of the second defendant andthat the right of servitude of way and water-course was reserved in thedeeds of the 2nd plaintiff.
At the hearing of the appeal, the counsel for the defendants took up thepreliminary objection that the plaintiffs have no right of appeal and urgedthat the appeal should be rejected. In support of this contention,he’ cited the case of Davith Appuhamy v. Peduru Naide1 and also a long
line of other decisions.
(
Mr. C. Thiagalingam, Q.C., who appeared for the plaintiffs, submitted,on, the other hand, that the instant case is distinguishable from the caseof Davith Appuhamy v. Peduru Naide (supra), and the other cases citedby the. defendants’ counsel, for the following reasons :
In the instant case, the learned District Judge was appointed as
an arbitrator under the provisions of the Civil Procedure Codeand in none of the cases cited by the defendant’s counsel was thisprocedure adopted. This case falls within the principle laiddown in Mudalihamy v. Appuhamy & others 2.
It was not possible, in the instant case, for the learned District
Judge to decide all questions in dispute by an inspection ofthe land; and where the terms of reference impose duties ona judge, which are not capable of performance, then the wholereference is bad.
: The learned District Judge exceeded his authority and decided the
«points in dispute not only by an inspection (which alone he was
Authorised to do), but also by looking into documents.
| The ruling in Davith Appuhamy v. Peduru Naide (supra) and the
earlier cases laying down this principle are all contrary to thei provisions of the Civil Procedure Code and therefore should not;be followed.
■Mr. Thiagalingam also urged that the plaintiffs had a right of appeal inthe instant case and that the order of the learned District Judge shouldbe set aside.
The instant case is distinguishable from the case of Davith Appuhamy v.
. Peduru Naide (supra) and it is sufficient to decide this case on point (1)raised by Mr. Thiagalingam.
The provisions of the Civil Procedure Code impose a duty on a judgeto frame issues and hear the suit between parties (vide sections 146 andthe following sections of Cap. 101). But in William Peiris v. LuciaPeiris3, the principle was laid down that when counsel for both parties
1 [1958 ) 62 N. L. R. 16.* (1949) 39 C. L. W. 103.
3 (1900) 1 Browne Reports 420.
572
TAMBIAH, J.—Thcmgarajasingham v. lyampillai
invito a District Judge to look into certain documents and proceedingsin another case, and then decide the case before him, the judge was notacting judicially, but as a quasi-arbitrator, and as the judge was invited,by the deliberate agreement of both parties, to act in a particular way,the parties liad waived their right of appeal.
The above decision was followed in subsequent decisions of tins Court,which formed the cursus curiae on this point for well over six decades.
In Babunhamy v. Andiris Appu1 the plaintiffand the defendant agreedto abide by the decision of the Court, arrived at after inspection, as towhether the plaintiff was entitled to a way of necessity over the defen-dant’s land or not. The Commissioner, after inspecting, entered judgmentfor the plaintiff. It was held by Hutchinson, C. J., that the defendant hadno right of appeal against the judgment as he had agreed to abide bythe decision of the Court.
In Guneratne v. Andradi 2 the plaintiff and the defendant, in a partitionaction, invited the judge to decide the question as to whether a particularlot should be excluded from the corpus, by perusing certain documentsand they undertook to abide by the decision of the judge. WoodRenton, A.C.J. (as he then was) and Pereira, J., following the twoabove-mentioned cases, held that the parties were bound by the decision ofthe judge and consequently there was no right of appeal.
In Ameru v. Appu Sinno 3, this Court adopted the principles laid downin the cases above cited and held that when both parties practicallyagreed to leave the decision of the question to the sole arbitrament of theDistrict Judge, they were bound by that order and consequently theycould not appeal to the Supreme Court. Wood Renton, C.J., (with whomde Sampayo, A.J. (as he was then) agreed) stated :
“ The defendants’ counsel thereupon produced certain leasesin support of this claim of interest, and the learned District Judgeproceeds as follows : ‘ I am invited to decide the issue as to the planter’sinterest on my reading of these leases’. The District Judge forthwithpronounced his order after perusal of the leases in question, findingthat the defendants were entitled to certain planting interests. Theplaintiff appeals. It appears to me that both sides practically agreedto leave the decision of tho question as to the alleged planters’ interestto the sole arbitrament of the District Judge. It is true that we donot find in the present case, as in Babunhamy v. Andiris Appu, anexpress undertaking on the part of the plaintiff to abide by the decisionof the District Judge on that point. But there is no sacramentalforce in the words f abide by ’ in such cases as this, and there is, Ithink, little difficulty in understanding what happened at the trial.” .
. In de Hoedt v. Jinasena 4, where the parties invited the judge to decide
tho case after inspecting the land and also certain documents, and where
the judge inspected the land and some of the documents, Schneider, A.J.
1 (19 JO) 5 Balasingham Reports 89.9 (1914) 4 Balusingham's Notes of Cases 24.
8 (1913) 3 C. A. G. 69.4 (1919) 6 C. W. R. 178.
TAMBTAH, J.—Thangarajasingham v. IyampHlai573
(as he was then) was of the view that although the judge did not examineall the documents, nevertheless, the defendant had no right of appeal.The learned judge relied on the rulings in the above-mentioned case forthis conclusion.
I
In Mudiyanse v. Loku Banda x, where parties agreed to the Commis-sioner deciding a case without hearing any evidence, but simply on aninspection of the land in question, Porter, J., held that no appeal layagainst the finding of the Commissioner. In the course of his judgment,he cited with approval the case of de Hoedt v. Jinasena (supra) and said“ It seems to me to be impossible on a record which contains no evidencethat on appeal the Appeal Court can differ from its finding. ”
In Punchi Banda v. Noordeen 2, the parties to an action in the Court ofRequests agreed to abide by the decision of the Commissioner after aninspection of the premises in dispute. The record in that case reads asfollows : “ At this stage plaintiff states that if on an inspection by Court,therei are any traces of a boutique on one side of Galboda Hena, he iswilling to have his case dismissed. The challenge is put to the defendantagainst whom judgment will be entered if there are no traces of a boutique.He is agreeable. I reserve the right in the event of what I consideruncertainty to let the case go to trial again. ” After inspection, as thejudge was satisfied that there was no trace of the boutique, he gavejudgment for the plaintiff, as prayed for. Akbar,. J., on appeal, heldthat the defendant had no right of appeal.
In '.JDavith Appuhamy v. Pedum Naide (supra), the parties invited theCourt to1 inspect the' land and decide the points in dispute without anyevidence being led. The judge made order after inspecting the land. .On appeal, this Court held that no appeal lay from the said order.
The defendants’ counsel stated that, in England, the judges adopteda similar procedure and he cited in support the rulings in Durham CountyPermanent Benefit Building Society, In re Ex Parte Wilson 3, Robert MurrayBurgess v. Andrew Morton4. But we were not referred to the specificprovisions of the English Civil Procedure which enabled the Englishjudges to decide the said cases in that manner. Further, I feel that itis dangerous to adopt English procedure when specific provisions havebeen made in the Civil Procedure Code regulating the same matters.
Although I was somewhat attracted by Mr. Thiagalingam’s argumentinviting us to review the abovementioned cases, it is not desirable todepart from the well established principle laid down in Peiris v. Peiris.(supra) and the other cases which followed it. Where an enactment^concerning procedure has received a certain interpretation, which hasbeen recognised by the Courts for a long period of years, the practicebased upon such interpretation should not be lightly disturbed (videBoyagoda v. Mendis 5). But it is not necessary for us to deal with this(point in the instant case.
(1922) 24 N. L. R. 190.8 (1871) VII L. R. Chancery Appeal Oases 46.
(1929) 30 N. L. R. 481.4 (1895).L. R. Appeal Cases 136.
* (1929) 30 N. L. R. 321, D. B.
TAMBIAH, J.—T hangar ajaainghum v. Iyamjrillai
514
Mr. Thing alingam also sought to distinguish the instant case fromPeiris v. Peiris (supra) and the cases which followed it. He urged thatthe terms of reference, in the instant case, showed that the parties hadinvited the learned District Judge to act as an arbitrator under the pro-visions of the Civil Procedure Code and that it was not permissible fora judge to assume the role of an arbitrator.
The facts in the instant case are on all fours with the facts in the caseof Mudalihamy v. Appuhamy and others (supra). The provisions of theCivil Procedure Code do not permit a judge to combine the role of anarbitrator appointed under the Code, with his judicial functions.Basnayalce, J., (as he then was) observed in Mudalihamy's case (vide39 C. L. W. at p. 104): “ I have not been able to find, nor has leamod counselbeen able to rofor me to, any provisions of tho Civil Procedure Codeunder which a judge may step aside from tho office of Judge and assumethe role of arbitrator ”. Special provisions have been made in tho CivilProcedure Code to refer matters for arbitration (vide Chapter LI ofCap. 101), while separate provisions have been made to regulate the proce-dure where parties agree to refer a matter in dispute to a judge for hisdecision (vide Chapter HI of Cap. 101). Any attempt, therefore, toclothe a judge with the functions of an arbitrator under the Code would,in my ox>inion, be a contravention of the salutary provisions containedtherein.
If the reference, in the instant case, is to be construed as a referenceto arbitrator under the Code, then the order of the learned District Judge,dated 5th of September, 1960, should be set aside. In the recent case ofGhelliah v. Navaretnam 1 a Divisional Bench of this Court held that it isquite sufficient if parties refer a matter to an arbitrator and sign therecord, and no further formality is necessary. In the instant case, too,the parties have signed the record and appointed the learned DistrictJudge as “ sole arbitrator ”. Counsel of experience have, after duedeliberation, used the words “ sole arbitrator ” in designating the functionsof the learned District Judge.
In construing an agreement, the natural meaning of words used byparties should be given effect (vide British Movietone News Lid. v.London District Cinemas Ltd.2). In the instant case, there is no reasonwhy the word “ arbitrator’* should be read as “ judge ”.
Although the procedure adopted in tho instant case is conducive tooxpeditious justice, nevertheless it vividly brings to one’s mind that mailypitfalls and snares await litigants who attempt such short-cuts. Judges,who are appointed to try cases, should not stop down from their highjudicial pedestal and assume the role of an arbitrator. Such a courseoften causes dissatisfaction to the party against whom the order is made.The grievance of the unsuccessful litigant is greatly aggravated by. thefact that he is doprived of his right of appeal to this Court.
‘ (1962) 64 N. L. It. 121.
* (1952) 2 A. E. JR. 617 at 622 per Viscount Simon.
H. N. G. FERNANDO, J.— Urnmu Zadciya v. Wideramaralne57fi
The consensus of opinion of the judges in the cases cited earlier showthat when parties waive their right of appeal, they cannot come to thisCourt by way of appeal. Therefore, I reject the appeal, but sinco theprocedure adopted on and after the 1st of August, 1960, including theorder of the 5th of September, 1960, is illegal, I quash, all pro-ceedings on or after the 1st of August, 1960, and the order of thelearned District Judge, dated 5th September, 3960, and send the caseback for further hearing.
AnEYRSUNDKnn, J.—I. agree.
Appeal rejected.Case sent back for further hearing.