# ARATIPAUL v. THE REGISTRAR, ORIGINAL SIDE, HIGH COURT CALCUTTA & ORS - **Citation:** [1969] 3 S.C.R. 926 - **Court:** Supreme Court of India - **Decided:** 1969-03-10 - **Case number:** Civil Appeal No. 745 of 1966 - **Bench:** J. M. Shelat, V. Bhargava - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/aratipaul-v-the-registrar-original-side-high-court-calcutta-ors-4700 - **Pages:** 18 ## Headnote Practice & Procedure-Judge seized of suit-Parties agreeing to refer nWlters in dispute to arbitration of Judge-Decision and decree by Judge -Whether award or judg1nent of court. When a partition suit and connected testamentary suit were pending before a Judge on the original side of the High Court of Calcutta, the parties filed an agreement before the Judge and got it recorded that the matters in dispute in both the suits were to be referred to the sole arbitration of that Judge. The parties agreed to abide by any decision that might be given by the Judge and that no evidence need be taken except to the extent that the Judge may desire and that the evidence need not be recorded in any !annal manner. It was also agreed that the Judge was to have all summary powers including the power to divide and partition the properties. At '!he same time the parties added that the Judge was to make such decrees as he thought fit and proper and for the purpose of partition, if necessary, he could engage or appoint surveyors and commissioners. The Judge thereafter gave a decision passing a preliminary dectec in tlie partition suit and it was filed on the record of the suit as a judgment. A preliminary decree was d'rawn up in terms of that order but before it was signed, the plaintiff presented a petition under An. 226 of the Constitution for the issue of a writ of marrdamus directing the Registrar of the High Court to recall, cancel and withdraw the .order and take it off the record .of the panition suit as it was not a judgment in the suit but was only an award. The writ petition was dismissed by the High Coun. lo appeal to this Court, HELD : Where an arbitration agreement envisages that the Presiding Jud~e of the Cpurt should himself act as an arbitrator he will occupy_ a dual capacity. He will be both an arbitrator to decide the matters re· ferred to him by the agreement of the parties and a court, before which the suit continues to remain pending, with jurisdiction to deal with the suit in accordance with the provisions Of the Arbitration Act (942 F] In the present case the powers, conferred by the agreement on the Judge already seized of the partition suit, were intended to enable him to function as an arbitrator so as not to be bound by the rules of proce· th parties, a judge deviates from the regular course of procedu.re of the court, he ceases to act judicially and becomes an arbitrator, whose decision is subject to no appeal." In support of this last proposition, Russell has quoted the decisions ill. Bickett v. Morris(') and White v. Buccleuch (Duke)('). We examined the decisions in these two cases, but could not find any specific statement in them that the decisi~ given by a Judge on deviation from the regular course of procedure of the Court has to be held to be an award, though it was held in both cases that it would not be subject to an appeal. The principal case on which reliance is placed on behalf of the appellant is the decision of the House of Lords in Robert Murray Burgess v. Andrew Morton('). In that case, a suit was first brought for recovery for a certain amount and the cause was set down for trial before the Lord Chief Justice, when there being no likelihood of its being reached, the parties, with the consent of the learned judge, agreed to withdraw it from trial, and to state a special case for the decision of the court. It was held by the House of Lords that the special case so stated did not raise directly any question of law and its decision only depended on questions of fact, so that the statement of the special case did not confer jurisdiction on the Court to deal with it as such. The learned Judges of the Divisional Court seized of the special case pointed out the incompetency and inexpediency of trying such a question by means of a special case, but expressed their willingness to do the best they could to decide it, if the parties desired them to do so; and on that footing, they heard the case and gave judgment. On appeal, the Court of Appeal reversed that judgment. This judgment of the Court of Appeal was brought up before the House of Lords which had to consider the nature of the judgment given by the Divisional Court. Lord Watson in his speech held:- (1) (1866) LR. I H.L. Sc. 47. (2) (1866) L.R. 1 H.L. Sc. 70. (3) 18961 A.C. (H.L.) 136. A B c D E f G H A B c D E F G :H ARATI v. REGISTRAR (Bhargava, J.) "There are several decisions of this House, in cases coming from Scotland, which appear to me to affirm that the judgment of a court below, prono~nced extra cursum curiae, is in the nature of an arbiter's award, and that, as a general rule at least, no appeal from _it will lie. An appeal was held, on that ground, to be incompetent in Craig v. Duffus('); Dudgeon v. Thomson(') and Magistrates of Benfrew v. Hoby( 3 )." 933 Lord Shand also expressed a similar view, taking note of tlie fact that, as soon as it became apparent to the learned Judges ?f the Divisional Court that the special case raised only a questmn of fact for their determination they would have been warranted in declining to give judgment on it. It was apparent that the learnec judges yielded to the entreaties of both parties in entertaining an< disposing of the case; and, on this basis, expressed his opinion a follows:- "I agree in thinking that the proceeding was extra cursum curiae, and that the decision of the dispute between the parties was of the nature of an award by arbiters, as, indeed, the learned judges of the Divisional Court seem themselves to have thought, as appears not only from the terms of Wills, J.'s judgment, but from the observations of both judges when the defendant proposed to appeal." Reliance was also placed on the decision of Goddard, J. in Wyndham v. Jackson('). The facts of that case were that the plaintiff issued a writ in the Chancery Division claiming an account and payment ·of all sums due to her under a contract entered into by the plaintiff with the defendant. An order was made in the action by conse,nt directing an account and the master, who dealt with that order, extended the ambit of his enquiry be}'&nd the terms of the order at the invitation of both parties, gave \I decision on a matter which was not covered by the Judge's order for an account, and issued a certificate to the effect that a certain sum was due from the defendant to the plaintiff. The question that was raised before Goddard, J. by the plaintiff was that she was entitled to recover the amount certified by the master,. on the ground that' the certificate was equivalent to an award haV!ng been made pursuant to an ol'lll submission by counsel, who asked him to deal with all matters in dispute, though not technica!ly covered by the order directing an account. It was also submitted on her behalf that the minute in the master's book indicati~g ~n order that he was prepared to make on the pl~intiff's application for an order for payment, was also an award entitling (I) 6 Bell's Ap, JOS. (2) I Macq. 714. (3) 2 Macq. 478. (4) [1937] 3 All E.R. 677. 934 SUPREME COURT REPORTS ( 1969] 3 S.C.R. her, not only to the amount mentioned, but also to the costs of the A Chancery proceedings. After considering the views expressed in a number of cases, Goddard, J. held:- "! must take it that it has been finally decided, in a matter between the parties, that the certificate was given ex cursum curiae. Then, as I find it was the result of a hearing which both parties requested, and to which they assented, I think it falls within the line of cases on which the plaintiff relies, and can be enforced as an award." This case went up in. appeal before the Court of Appeal whose decision is reported in Wyndham v. Jackson('). That Court differed from Goddard, J. on the nature of the order made by the master and held that the determination by the master was not a final determination and was never intended to be treated as a final arrangement between the parties. That 111atter was still to go before the Judge who had made the order for account and the master's certificate could not be binding until It had been confirmed by the Judge. The position of the master was held to be exactly analogous to the position of an arbitrator to whom the court may have referred a matter to make a report to the court in order that the court may give a final decision between the parties. On this view, the Appeal Court did not go into the question whether the.decision given by_ the master amounted to a decision given extra cursum curiae and whether it was enforceable as an award. The award of the master, being tre:ited as provisional and subject to confirmation by the Judge, could obviously not be enforced as such. Thus, the view expressed by Goddard, J. that the decision of the master could be enforced as !Ill award, if it had been final, was neither affirmed nor set aside. The cases in India relied upon are two dei;isions of the Bombay and Calcutta High Courts. In Sayad Zain v. Kalabhai Lallubhai (°), before the case came to a regular hearing before the Court of the First Class Subordinate Judge, Surat, the parties as 'well as their pleaders signed an application which ran as follows :- "We have decided that the Court should make a settlement of the dispute between us according to Chapter XXXVIII of the Civil Procedure Code, and we will abide by whatever decision the Court may give. c D E F G We hve specially decided that the Court should have ful.J authority to obtain information from the parties in H whatever way the Court may think proper, but the parties (1)(19381 2 All E.R. 109. (2) I.L.R. 23 Born. 752. A ll c D E F G H ARATI v. REGISTRAR (Bhargava, J.) 935 are not to produce any evidence except documentary records." The Subordinate Judge, in pursuance of this agreement, proceeded to deal with the case and ordered defendant to pay plaintiff a certain sum, having dispensed with the requirement of going through the formal procedure of rejecting the suit and registering their application as a fresh suit, ..because the parties referred him to the decision in R.aoji Trimbak Nagarkar v. Govind Vinayak Nagarkar('). An appeal against this decision was taken to the High Court of Bombay which noted the fact that the Subordinate Judge had referred to the case mentioned above and helo:- "The very mention of that case shows that the parties must have intended that the decision of the Subordinate Judge as arbitrator should be final. In that case, as in this, the parties solemnly agreed by themselves and by their pleaders to abide by the decision of the Court to be made in a particular way. They cannot, therefore, appeal from it." The Court further expressed the opinion that: "The fact that the express provisions of Chapter XXXVIII of the Civil Procedure Code were knowingly disregarded, shows that' the_ proceedings were extra cursum curiae, and thus the judgment of the Subordinate Judge was in the nature of an arbitrator's award, against which an appeal cannot be entertained if the competency of the appellate Court is objected to by the party holding the judgment. The fact that the Subordinate Judge gave his award in the form of a decree will not make it a decree from which a regular appeal can lie." In Baikanta Nath Goswami v. Sita Nath Goswami('), after the hearing of a suit in a Munsif Court had commenced and some evidence had been recorded, the parties agreed to leave the questions in dispute between them to the determination of the Munsif after he had inspected the locality, and also agreed not to raise any objection to the decision so arrived at by the Munsif and to hold themselves bound by the decision of the Munsif. It was specifically stated in the -agreement that neither of the parties shall be competent to raise any objection to the decision or to prefer an appeal. Acting on this submission, the Munsif made a local inspection and passed an order with which the plaintiffs were not content, so that they applied to the Munsif under section 623 of the Civil Procedure Code, 1882, for a review. The Munsif granted the review and passed a second order in modification of his (I) [1897[ P.J. 413. (2) l.L.R. 38 cal. 421. 936 SUPREME COURT REPORTS (1969] 3 S.C.R. first order, and again embodied the order in what purported to be a decree in the suit. Against this decree, an appeal was filed by the defendants be.fore the District Judge wlio entertained ~he appeal and made an order of remand. On second appeal, the High Court of Calcutta held that the first judgment of the Munsif was in the nature of an award and that it did not lose that character because he embodied the operative part of that judgment in what purported to be a decree in the suit. He was in fact an arbitrator by the submissi~n of the parties and his decision was an award. It was not open to him to alter that award when made or to review his decision. It was further held that no appeal, consequently, lay to the District Judge against that decision. It is on the basis of these cases that it was argtied that, in the present case also, the order made by Mallick, J. should be held by us to be in the nature of an award made by an arbitrator, so that it cannot be treated as a decree and filed as such in the partition suit which was pending before him. As against these cases cited on behalf of the appellant, our attention has been drawn on behalf of the respondents to the views in Halsbury's Laws of England, and to certain decisions of Courts in India. In Halsbury's Laws of England, Third Edn., Vol. 2, at p.8 in para. 15, it is stated:- "An arbitration agreement must be an agreement to refer disputes to some person or persons other than a court of competent jurisdiction. . In principle, a judge sitting extra cursum curiae may sit as arbitrator under an arbitration agreement and a reference to a foreign court has been treated as an arbitration agreement for the purpose of exercising the jurisdiction to grant a stay of proceedings arising out of the same subject-matter. An agreement that the decision of a judge sitting in court should be unappealable is however, despite the language of some of the decisions cited, not an arbitration agreement; the decision, when given, is a judgment, not an award, and the judge is not placed in the position of an arbitrator." Reliance is placed particularly on the last sentence of the above extract from Halsbury's Laws of England. In Nidamarthi Mukkanti v. Thammana Ramayya('), parties in a suit pending before the District Munsif presented a petition undertaking that both parties would abide by the decision of the Court that may be passed, as it thinks just, after perusing t~e documents filed by both parties and all the records in the said suit, and after measuring the sites and inspecting the marks, etc., (l) I.L.R. 26 Mad. 76. A c D E F' H A B c D E F G H ARATI v. REGISTRAR (Bhargava, J.) 937 which are thereon. The District Munsif ordered accordingly, inspected the site, and found in favour of the plaintiff and pro· nounced judgment giving him the order claimed, and granted the injunction. It was held by the Madras High Court qn appeal that the District Munsif acted as arbitrator by consent of parlies and that, consequently, no appeal lay from his decision which must be looked on as an award. It was, however, added that, as no attempt had been made to attack that award on any of the grounds specified in section 521 of the Civil Procedure Code, the Court must look on the decree of the District Munsif as one passed in accordance with the award and uphold it as such. In Chinna Venkatasami Naicken v. Venkatasami Naicke11 and Another('), in a suit for money due upon a mortgage bond, after the examination of some witnesses, parties agreed to refer the questions of law and fact arising in the case to the decision of three persons, viz .. the Subordinate Judge and two friends of the parties. An award was made by the majority. Thereupon, an application was presented by the defendants to set aside the award on various grolllllds. The Subordinate Judge over-ruled the objections and passed a decree in accordance with the award. In the Revision before the Madras High Court, the main ground taken was that the reference to the Subordinate Judge as one of the arbitrators was illegal and 'that whole award was vitiated thereby. Seshagiri Ayyar, J., in confirming the decree of the Subordinate Judge, held:- "In my opinion, therefore, although the procedure adopted by the Subordinate Judge in dealing with the matter as if it was a reference under the second schedule and as if the provisions of the Code applied was wrong, inasmuch as a decree was passed in terms of the award, the defendant as a party to the reference is not entitled to contest its finality and to request that the case ·should be heard again." Wallis, C.J., said:- "! think a reference of the suit to the presiding judge must be held to be altogether extra cursum curiae and not the less so when two others are joined with him and that the decree passed i·n accordance with their de~ision must be regarded as a consent decree, and as not subject to the prnvisions of the second schedule." . !ti. fl(oti f'.e~kata Somayajulu Garu v. Adusumil/i Venkanna('). m a suit clamung an easement of necessity in respect of certain lands, the District Munsif, at the request of the defendant, made (l) LL.R. 42 Mlld. 625. (2) I.L.R. SB Mad. Ji. '938 SUPREME COURT REPORTS [1969] 3 S.C.R. a local inspection of the site, whereafter the plaintiff was examined-in-chief and some documents were filed. Thereafter, the parties requested the Court to give a decision on the evidence already on the record and intimated that they proposed to adduce no further evidence. The Munsif gave his decision partly in favour of the plaintiff and partly against him. The plaintiff appealed to the Subordinate Judge who dismissed the appeal, holding it to be barred by reason of the joint statement. given by the parties before the Munsif. On further appeal, the High Court of Madras held that, although the proceeding was not extra cursum curiae, the right o,f appeal was nevertheless barred by reason of the special agreement. A B In K. P. Da/alv. R. S. Jamadar('), in an application registered C as a suit for e jectment from a premises, the Judge trying the suit, at the first hearing of the suit, after . pleadings of parties had been put in, enuired of the advocates of the parties as to whether they wanted a formal trial or whether they were prepared to leave the matter to him to be summarily decided as an arbitrator after hearing the respective advocates and inspecting the premises. Both the advocates agreed to the learned Judge hearing the facts from them and after inspection of the premises by the Court to submit to his decision as suggested. Therea.fter, the Judge inspected the premises and ultimately, on a further agreement by both parties that the matters in dispute should be decided by the Judge as an arbitrator, he gave his decision. When the case came up in revision before the Bombay High Conrt, the learned Judge of that Court refetred to the quotations from Halsbury's Laws of England and Russell on Arbitration which we have noticed earlier, and expressed his opinion that he did not think that those observations necessarily meant that the Judge ceased to be a Judge and became a pure arbitrator in the sense that he could refer the dispute to himself and also remit the award to himself. The order of the trial Judge dismissing the application and making no order as to costs was upheld on the view that the trial Judge had not lost his capacity as a Judge and had not beconfe a pure arbitrator governed by the Arbitration Act and, therefore, the provisions of that Act would not apply to him, so that the order passed by the trial Judge was correct. D E F G In Baijnath v. Dhani Ram( 2), a suit for declaration, removal of certain encroachments, and a perpetual injunction came for trial hefore the Munsif where the parties agreed that the Munsif should decide the case on inspection of the documents filed by the parties and on inspection of the locality. They further agreed to accept the decision of the Munsif. The Munsif wrote a judgH ment and decreed the suit in part. There was an appeal to the (I) A.1.R. 1945 Born. 478. (2) !.L.R. 51 All. 9-03. A 11 c E E F G H ARAT! v. REGISTRAR (Bhargava, !.) 939 District Judge which was dismissed and the second appeal came before the High Court of Allahabad which was also dismiss~. While the appeal before the District Judge was pending, an application for review of judgment was also presented ~efore the Munsif. In disposing of this application, the Munsif held that he was an arbitrator and that his decision was binding on the parties, so that an application for review did not lie as there was ~o sufficient cause for review. This order was again taken up m Revision before the High Court, and the question ~rose whether the Munsif could not entertain the application for review because he was an arbitrator. The Court held:- "The Munsif, in accepting the position of an arl:>itrator, had a two-fold t:apacity. He was an arbitrator, but he was also the court. If the arbitrator left anything undecided, the parties would be entitled to· go to the court and to ask the court to remit the award to the arbitrator. The fact that the two capacities were consitu,ted in the same person should not deprive a party of his right of having matters set right." On this view, the Court Was of the opinion that an application for reveiw lay against the judgment of the Munsif, allowed the revision and directed the Munsif to take up the application for review afresh and consider it on the merits. In Edapalli Kotamma v. Nallapaneni Mangamma and Others('), in a suit for mandatory injunction directing the defendants to remove certain constructions and for a permanent injunction restraining them from obstructing the flow of surplus water from plaintiff's land, the parties, after a Commissioner appointed to inspect the locality had prepared certain plans and submitted his reports, signed and filed a memorandum before the District Munsif in the fol!owing terms:- "Both parties agreed to abide by the decision of the Hon'ble Court after personal in~pection. The parties are not adducing oral evidence. Documentary evidence can be received." The District Munsif inspected the locality, placed on record a detailed. note of the phy~ic.al fe~tures of the locality, etc., and, on the basis. of the. Comnuss10ner s plans and reports and his own personal mspeclton, gave a judgment for the plaintiffs. A decree was also drawn up in the usual course. The first defendant preferred an appeal which was rejected by the first appellate court on the ground tha_t it was incompetent. In second appeal before the Andhra Pradesh High Court, the question arose whether the first appellate Court was right in holding that no appeal lay to rt from the decree of the trial Court. A learned single Judge of ('. A.I.R.1967 A.P. 700, 940 SUPREME COURT REPORTS [1969] 3 S.C.R. the Andhra Pradesh High Court differed from the view expressed in Nidammarthi Mukkanti's case( 1) and held that there could not be a reference to arbitration by the Judge to himself. He expressed the view by saying : "It would be fantastic to say that in a case like the present, the Court made a reference to itself, fixed the time for the making of the award, stayed its hand till the expiry of the time fixed for the submission of the award, received the award, gave time for objections to the award, heard the objections and, finding no grounds for setting aside the award, pronounced judgment in accordance therewith." He went on to hold:- 'The Arbitration Act of 1940 makes it clear that a reference to :irbitration could be made only in accordance with the Act and the procedure prescribed by the Act should have been followed before ss.