PETITIONER:
PAYYAVULA VENGAMMA
Vs.
RESPONDENT:
PAYYAVULA KESANNA AND OTHERS
DATE OF JUDGMENT:
29/10/1952
BENCH:
BHAGWATI, NATWARLAL H.
BENCH:
BHAGWATI, NATWARLAL H.
MUKHERJEA, B.K.
AIYAR, N. CHANDRASEKHARA
CITATION:
1953 AIR 21 1953 SCR 119
CITATOR INFO :
R 1990 SC1426 (22)
ACT:
Arbitration--Arbitrator takiny statement from one party in
the absence of the other-Legal misconduct-Validity of award-
Question of prejudice,
HEADNOTE:
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 the elementary principles of the
administration of justice, whether by courts or by
arbitration by lawyers or merchants, that a party should not
be allowed to use any means whatsoever to influence
120
the mind of the judge or arbitrator, which means, are not
known to and capable of being met and resisted by the other
party; the arbitrator was accordingly guilty of legal
misconduct; and this was sufficent to vitiate the award,
irrespective of the fact whether this misconduct bad caused
prejudice to any one.
Harvey v. Shelton (1844) 7 Beav. 455, Ganesh Narayan Singh
v. Malida Koer (1911) 13 Cal. L.J. 399, and Haigh v.
Haigh (1861)
31 L.J. Ch. 420, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
37 of 1952.
Appeal from the Judgment and Decree dated the 24th
September, 1948, of the High Court of Judicature at Madras
(Menon and Mack, JJ.) in A.A.O.No. 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. Dadachandji” with him) for the
appellant.
S. P. Sinha(M. O. Chinnappa Reddi and K. B. Chowdhury
withhim) for the respondents.
1952. October 29. The Judment 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 Anantapur for setting aside
an award the ground inter alia of legal misconduct of the
arbitrator. The trial Court set aside the award. The High
Court appeal reversed the judgment of the trial Court and
dismissed the plaintiffs 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 I his undivided brother,
the defendant 2 a son -of his another pre-deceased brother,
and defedant 3 his son by his pre- deceased wife. ‘The
deceased had purported to make a will dated 1st May, 1927
under which he had made certain provision -for her
maintenance , and residence, The plaintiff stayed with the
family for
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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 bad
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 for hearing and final disposal
before the Subordinate Judge of-Anantapur. When the
plaintiff was being examined as P.W. 1, in the suit the
27th February, 1945, all the parties filed a petition under
section 21 of the Arbitration Act agreeing to appoint Sri
Konakondla Rayalla Govindappa Garu 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
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 I 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 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 other. It was contended behalf of
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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 disputes according
to law after perusing the plaint and the written statements,
the arbitrator examined defendant I 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 the other hand by
the defendants 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 the basis of the pleadings, that not a single fact
was recorded by the arbitrator 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 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
give to him by the Court along with the order, we do not see
why the arbitrator went to the plaintiff and defendant 1 and
recorded their statements. The statement given by the
plaintiff to the arbitrator did not mention anything beyond
the request that be 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.”
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(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 undivided 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
I 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:
This position is confirmed when one turns to the award. The
arbitrator stated that the Court had 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 I who was the manager of
the defendant’s family. He further stated that he bad
perused the settlement which the defendant 1 alleged as
having been made Ist 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 I and the will dated 1st May, 1927.
There is thus no doubt that the arbitrator heard the
defendant 1 in the absence of the, plaintiff. No
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notice of this hearing was given by the arbitrator to the
plaintiff nor had she an opportunity of having the evidence
of the defendant I taken in her presence so that she could
suggest cross-examination or herself cross-examine the
defendant I 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 principle 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 heard and each in the presence of the other. In
every case in which matters are litigated, you must attend
to the representations made 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(1) is the leading case this
point and it has been followed not only in England but in
India. (See Ganesh Narayan Singh v. Malida Koer(2). She had
also no opportunity to have her say in the matter of the
settlement of the 1st May, 1927. The course of proceeding
adopted by the arbitrator was obviously contrary to the
principles of ,natural justice.
(i) (1844) 7 Beav 455 at P. 462.
(2) (1911) 13 c.L. J. 399 at pages 401, 402,
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Shri S. P. Sinha however urged before us that no prejudice
was caused to the plaintiff by reason of the arbitrator
having obtained the statement Exhibit No. 5 from defendant 1
and that therefore the arbitrator was not guilty of legal
misconduct. This contention is unsound. The arbitrator may
be a most respectable man; but even so, his conduct cannot
be reconciled to general principles. “A Judge must not take
upon himself to say, whether evidence improperly 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. Haigh(1):
“It is true 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 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 had
waived her right if any to challenge the award the ground
of legal misconduct. No waiver however was pleaded by the
defendant I 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,
(i) (18o1) 6 Ves. 7o at page 72.
(2) (1861) 31 L.J. Ch. 420
17
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