# Raja Kainakshyti Narayan Singh BahadZ<r v. Chohan Ram and Another

- **Citation:** [1953] 1 S.C.R. 119
- **Court:** Supreme Court of India
- **Decided:** 1953
- **Case number:** Civil Appeal No. 37 of 1952
- **Bench:** Muk 0Herjea, 0Handrasekhara Aiyar, Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raja-kainakshyti-narayan-singh-bahadz-r-v-chohan-ram-and-another-111
- **Pages:** 7

## Headnote

Arbitration-Arbitrator taking statement from one party in the
absence of the other-Legal misconduct-TT alilhty of award-Question of prejudice.
Where, in an arbitration under s. 21 of the Indian Arbitration
Act, the arbitrator took statements from each of the parties in the
absence of the other and made an award: Held, that it is one of
t.hi; ~lrirMntM'Y iwinciiplM 6f thA 9.dministro.tion of justice, whether
by courts or by arbitration by lawyers or merchants, that a party
~houlc1 not be allowed to use any means whatsoever to influence
1952
Raja
Kainakshyti
Narayan Singh
BahadZ<r
v.
Chohan Ram
and Another.
Bhagwati J.
1962
Oct. 29.
1952
Payyavnla
Venga11i1na
v.
Payyavula
Kesa:nna
·and Others.
120
SUPREME COURT REPOR'l'S
(1953)
the mind of the judge or arbitrator, 'vhich means are not known
to and capable of being met and resisted by the other party ; the
arbitrator \Vas accordingly guilty of. legal misconduct; and this
was sullicent to vitiate the award, irrespective of the fact \Vhether
this misconduct had caused prejudice to any one.
Hai·vey v .. Shelton (1844) 7 Beav. 455, Ganesh Narayan Singh
v. Nalirla Koer (1911) 13 Cal. hJ. 399, and Hoighv. Haigh (1861)
31 L.J. Oh. 420, referred to.

## Text

... •
-I
s.c . .R.
SiJPEEME COUR'l' REPORTS
119
any such plea we are of the opinion that there was
no answer to the plaintitf's claim and the permanent
lease granted by 'lv azir Narayan to the defeni{ants
could not prevail against the plaintiff.
We have therefore come to the conclusion that
Wazir Narayan Singh had no power to grant the permanent lease in question to the defendants, that the
same was not binding and operative against the
plaintiff, that the defendants nad ample opportunity
to redeem the mortgage if they so desired but d
1id not
choose to exercise their right of redemption, that the
execution sale of Gadi Sirampur including the four
villages in question was binding on them and that the
plaintiff was entitled to khas possession of the four
villages of which the defendants were in wrongful
possession. The appeal is allowed. The decree passed
by the High Court dismissing the plaintiff's suit is set
aside and the decree passed by the trial court in favour of the plaintiff is restored with costs throughout.
Appeal allowed.
Agent for the appellant : Ganpat Bai.
Agent for respondent No. 1: R. R. Biswas.
PAYYAVULA VENGAMMA
v.
PAYYA vur_JA KESANNA AND OTHERS
[MUK
0HERJEA, 0HANDRASEKHARA AIYAR
and BHAGWATI, JJ.]
Arbitration-Arbitrator taking statement from one party in the
absence of the other-Legal misconduct-TT alilhty of award-Question of prejudice.
Where, in an arbitration under s. 21 of the Indian Arbitration
Act, the arbitrator took statements from each of the parties in the
absence of the other and made an award: Held, that it is one of
t.hi; ~lrirMntM'Y iwinciiplM 6f thA 9.dministro.tion of justice, whether
by courts or by arbitration by lawyers or merchants, that a party
~houlc1 not be allowed to use any means whatsoever to influence
1952
Raja
Kainakshyti
Narayan Singh
BahadZ<r
v.
Chohan Ram
and Another.
Bhagwati J.
1962
Oct. 29.
1952
Payyavnla
Venga11i1na
v.
Payyavula
Kesa:nna
·and Others.
120
SUPREME COURT REPOR'l'S
(1953)
the mind of the judge or arbitrator, 'vhich means are not known
to and capable of being met and resisted by the other party ; the
arbitrator \Vas accordingly guilty of. legal misconduct; and this
was sullicent to vitiate the award, irrespective of the fact \Vhether
this misconduct had caused prejudice to any one.
Hai·vey v .. Shelton (1844) 7 Beav. 455, Ganesh Narayan Singh
v. Nalirla Koer (1911) 13 Cal. hJ. 399, and Hoighv. Haigh (1861)
31 L.J. Oh. 420, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
37 of 1952.
Appeal from the Judgment and Decree dated the
\!4th September, 1948, of the High Court of Judicature at Madras (Menon and Mack, JJ.) in A.A.O.Np.
688 of 1945 arising out of Judgment and Decree
dated the 1st October, 1945, of the Court of the District Judge of Anantapur in Original Petition No. 15
of 1945: ··
D. Munikanniah (J. B. Dadaohandji with him) for
the appellant.
S. P. Sinha (M, O. Chinnappa Reddi and K. R.
Chowdhiiry with him) for the respondents.
1952.
October 29. The Judgment of the Court
was delivered by
·
BHAGWATI J.-The plaintiff filed 0. P. No. 15 of
1945 in the Court of the District Judge of Anantapnr
for setting aside an award on the ground inter alia of
legal miscondnct of the arbitrator.
The trial Court
set aside the award.
The High Court on appeal
reversed the judgment of t·he trial Court and dismisi;ed
the plaintiff's suit. This appeal has been filed by the
plaintiff with the certificate of the High Court against
that decision.
One P. Narayanappa died in 1927 leaving· him
surviving the plaintiff his widow,"the defendant 1 his
undivided brother, the defendant 2 a son of his
another pre-deceased brother, and defendant 3 his son
by his pre-deceased wife. The deceased had purported
to make a will dated 1st May, 1927, un_der which he had ·
made certain provision for her maintenance and
i'esidence. · The plaintiff stayed with the family for
•
..
'
•
..
'
•
).
S.C.R.
SUPREME COURT REPORTS
121
some time but had to leave the family house owing to
disputes which arose between her and the senior wife
of defendant 1. She lived with her mother for eleven
years and ultimately filed a suit in forma pauperis
0. S. No. 19 of 1943 in the Court of the District
Judge of Anantapur, for maintenance, arrears of
maintenance, residence and household utensils as also
recovery of some jewels and clothes as her stridhanam
properties.
The defendants contested the claim of
the plaintiff contending that sufficient arrangement
had been made for her maintenance and residence
under the will dated the 1st May, 1927, that she had
accordingly been in possession and enjoyment of the
property and that her claim was unsustainable. The
defendants also denied her claim for jewels and
clothes.
The suit came on for hearing and final disposal
before the Subordinate Judge of Anantapur. 'When
the plaintiff was being examined as P.W. 1, in the
suit on the 27th February, 1945, all the parties filed a
petition under section 21 of the Arbitration Act
agreeing to appoint Sri Konakondla Rayalla Govindappa Garn as the 'sole arbitrator' for settling the
disputes in the suit and to abide by his decision, and
asking the Court to send the plaint, written statement
and other records to the arbitrator for his decision.
A reference to arbitration was accordingly made by
the Court.
The arbitrator
entered upon
the
reference and on the 6th March, 1945, examined the
plaintiff and got from her a statement which is Exhibit No. 4 in the record.
He similarly examined the
defendant 1 on the 10th March, 1945, and got from
him the statement which is Exhibit No. 5 in the
record.
After obtaining the two statements, the
arbitrator made and published his award on the 12th
March, 1945. It was this award that was challenged
by the plaintiff.
The legal misconduct which was alleged against the
arbitrator was that he examined each party in the
absence of the ©ther. It was contended on behalf of
195a
Payyavi<la
Vengatninia
v.
Payyavi<ia
J(esanna
1zncl Others.
Bhagwati J.
19$2
Payyavula
V~ngam1na
v.
Payy1vi.ila
Kesanna'
and Others.
Bhagwati J,
122
SUPREME COURT REPORTS
[1953)
the plaintiff that even though the petition for reference to arbitration as also the statements Exhibits
Nos. 4 & 5 authorised the arbitrator to settle the dis·
putes•according to law after perusing the plaint and the
written statements, the arbitrator examined defendant 1 in the absence of the plaintiff and also perused
what was called the settlement of the 1st May, 1927,
without giving an opportunity to the plaintiff to have
her say in the matter and was thus guilty of legal
misconduct. It was contended on the other hand by
the defepdants that what was done by the arbitrator
was merely to obtain from the parties a reiteration of
their request contained in the petition that he should
give his award on the basis of the pleadings, that not
a single fact was recorded by the llrbitrator from the
defendant 1 which did not find a place in his written
statement and that therefore the arbitrator was not
guilty of legal misconduct.
The petition filed by the parties on the 27th
:February, 1915, did not give any special powers to the
arbitrator. The arbitrator was appointed for settling
the disputes in the suit and the parties agreed
to abide by his decision.
The plaint, the written
statement and the other records were agreed to
be sent to him for his decision, and if the arbitrator was· thus directed to make his award after
perusing the
plaint and the written statements
which were given to him by the Court along with
the order, we do not see why the arbitrator went
to the plaintiff and defendant l and recorded their
statements.
The statement given by the plaintiff to
the arbitrator did not mention anything beyond the
request that he should peruse the plaint and written
statement and give his decision according to law and
justice.
The statement which was obtained from the
defendant 1 however did not merely repeat this
request but contained several statements of facts,
which did not find a place in his written statement.
These statements were as follows:-
(1)
"She felt glad with what was given to her
by her husband."
S.C.R.
SUPREME COURT REPORTS
123
(2)
"It is seen from the Government accounts
that as per the settlement made by her husband, the
lands given to her have been in her possession.".
(3)
"Just like the plaintiff has her jewels in her
possession, the other females in the house have their
jewels in their respective possession only.
The undivi4ed family has no manner of right therein."
and ( 4) "Considering the domestic circumstances,
our elder brother provided maintenance for the third
wife, the plaintiff, just as he had provided maintenance
for his second wife."
These statements constituted evidence given by the
defendant l in addition to the averments contained
in his written statement and it is futile for the defendant 1 to contend that in obtaining the statement
Exhibit No. 5 from him the arbitrator merely obtained
from him a narration of what was already found in
his written statement.
'fhis position is confirmed when one turns to the
award.
'fhe arbitrator stated that the Court bad
directed him to make the award after perusing the
plaint and the written statements of the plaintiff and
the defendants and that it had given him the plaint
and the written statements along with the order. He
however proceeded to state that in pursuance of the
order he took statements from the plaintiff as well as
the defendant 1 who was the manager of the defendant's family.
He further stated that he had perused
the settlement which the defendant 1 alleged as
having been made on 1st May, 1927, in favour of the
plaintiff and proceeded to award to the plaintiff 8
acres 17 cents of land bearing Survey No. 507 in
addition to the 40 acres of land already given by the
deceased to her. It is clear from the terms of this
award that the arbitrator took into consideration not
only the plaint and the written statements of the
parties but also the statement which he had obtained
from the defendant 1 and the will dated 1st May,
1927.
,
There is thus no doubt that the arbitrator heard
the defendant 1 in the abs~nce of the plaintiff.
No
1952
Payyavu!a
yr enganinia
v.
Payyavula
Kesanna
and Others,
Bhagwati J ..
1952
Payyaviila
Vengatnnia
v.
Payyavula
Kesanna
a1id Others.
Bhagwati J.
124
SUPREME COUR'r REPORTS
[1953]
notice of this hearing was given by the arbitrator to
the plaintiff nor had she an opportunity of having
the e\'idence of the defendant 1 taken in her presence
so that she could suggest cross-examination or herself
cross-examine the defendant 1 and also be able to
find evidence, if she could, that would meet and
answer the evidence given by the defendant 1. As
was observed by Lord Langdale M. R. in Harvey v.
Shelton(1),
"It is so ordinary a principle in the administration
of justice, that no party to a cause can be allowed to
use any means whatsoever to influence the mind of
the Judge, which means are not known to and capable
of being met and resisted by the other party, that it
is impossible, for a moment, not to see, that this was
an extremely indiscreet mode of proceeding, to say
the very least of it. It is contrary to every prineiple
to allow of such a thing, and I wholly deny the difference which is alleged to exist between mercantile
arbitrations and legal arbitrations.
The first principles of justice must be equally applied in every case.
Except in the few cases where exceptions are unavoidable, both sides must be hend, and each in the presence of the other. In every case in which matters
are litigated, you must attend to the representations
made on both sides, and you must not, in the administration of justice, in whatever form, whether in the
regularly constituted
Courts or in arbitrations,
whether before lawyers or merchants, permit one side
to use means of influencing the conduct and the decisions of the Judge, which means are not known to the
other side."
This case of Harvey v. Shelton(') is the leading case
on this point and it has been followed not only in
J!;ngland but in India.
(See Ganesh Narayan Singh v.
Malida Koer('). She had also no opportunity to have
her say in the matter of the settlement of the 1st May,
19~7. The course of proceeding adopted by the
arbitrator was obviously contrary to the prlnclples of
natural justice.
(1\ (1844) 7 Beav. 455 at p. 462.
(2) (1911) 13 C.L.J. 399 at l?ages 4or, -f02,
,
(
"'\
' I
S.0.R.
SUPREME COURT REPORTS
125
Shri S. P. Sinha however urged before us that no
195!J
prejudice was caused to the plaintiff by reason of the
E
Payyavuta
arbitrator having obtained the statement
xhibit
Vengarnma
No. 5 from defendant 1 and that therefore• the
v.
arbitrator was not guilty of legal misconduct.
This
Payyavula
contention is unsound.
The arbitrator may be a most
Kesanna
respectable man; but even so, his conduct cannot be
and Othm·s.
reconciled to general principles. "A Judge must not. Bhagwat· J
take upon himself to say, whether evidence impro-
' ·
pe1·ly admitted had or had not an effect upon his mind.
The award may have done perfect justice: but upon
general principles it cannot be supported." Per Lord
Eldon, Lord Chancellor, in Walker v. Frobisher(1).
To the same effect are the observations of Lord
Justice Knight Bruce in Haigh v. Haighe) :
"It is trμe that he states in his affidavit that he did
not allow those explanations to influence him in his
report upon the accounts, and I have no doubt he
honestly intended this to be the case; but it is impossible to gauge the influence which such statements
have upon the mind. "
We must hold, without meaning the least reflection
on the arbitrator, that he was guilty of legal misconduct and that was sufficient to vitiate the award.
Shri S. P. Sinha then urged that the plaintiff bad
waived her right if any to challenge the award on the
ground of legal misconduct.
No waiver however was
pleaded by the defendant 1 and it was not competent
to him to urge this contention at this stage before us.
The result therefore is that the judgment of the
High Court cannot stand.
We allow the appeal, set
aside the judgment and decree passed by the High
Court and restore the judgment and decree passed by
the trial Court with•costs throughout.
Appeal allowed.
Agent for the appellant: Naunit Lal.
· Agent for the respondents : M. S. K. Aiyangar,.
(1) (1801) 6 Ves. 70 at page 72,
(2) (1861) 31 L.J. Ch 42Q.
~7