Sh. Baljit Singh and ors. Vs. Sh. Rajinder Singh and ors. - Court Judgment

Excerpt:
- - under the circumstances, the provisions of section 21, arbitration act, were never attracted moreover, it was the intention of the parties for which the best judge was the trial court.j.v. gupta, c.j.1. this order will also dispose of civil revision no. 3385 of 1986, as the question involved is common in all these cases.2. two suits filed by the parties were pending in the trial court when on march 18, 1986, joint statement was made by the parties along with their counsel that they agreed to refer their dispute which is the subject-matter of the suit to shri sarup chand gupta, advocate, for decision. after recording the said statement, the trial court passed the following order :-'in view of the above statement of. the parties and their counsel, the matter in dispute is hereby referred to sh. sarup chand gupta, advocate, for decision. boil the parties shall pay rs. 200/- each to the referee as remuneration for his services. he shall make bis report on 15-4-1986.'after awaiting the report of the referee and adjourning the case thrice, the following statement was made by sh. sarup chand gupta, advocate, the referee.'i have heard both sides and have gone through the documents produced by them and have got the site plan prepared and also calculation sheet prepared and i make my statement as per exhibit px with detailed reasons therefore and dismiss the suit of the plaintiff.'the same day, the trial court passed the following order.'present: counsel for the parties. in view of the above statement of the refereeread with his written statement ex ix, the suit is hereby dismissed. file fee consigned to the record room.'the plaintiff then filed an appeal against the said decree dismissing the plaintiff's suit in which a preliminary' objected was raised on behalf of the defendants' that since it was a concepts decree, no appel was comretent .the learned additional district judge took the view that shri. sarup chand gupta was mot appointed as a referee. but was appointed as an arbitrator and, therefore, the provision of section 20 of the evidence act. were not attracted. in view of this finding, the application of the defendants was dismissed.3. the learned counsel for the defendant-petitioner submitted that shri sarup chand gupta, advocate, was appointed as a referee and not an arbitrator. the view taken by the lower appellate court in this behalf was wholly wrong end misconceived in support of the contention, the learned counsel relief upon bishamber dayal v. kishan chand, (1983) 85 p. l. r. 300 and hari kishan dass v. smt. daljit kaur, (1986-1)89 p. l. r. 31. it was also submitted that there was nothing in appeal to be decided by the lower appellate court as there was no judgment as such which could be appeal- ed against.4. on the other hand, the learned counsel for the respondent submitted that shri sarup chand gupta was not appointed as referee. but was appointed as an arbitrator. 'since the trial court dismissed the plaintiff's' suit that very day when the report was filed by the so- called referee the plaintiff had no option but to file to file the appeal which was under section 39 of arbitration act.5. i have heard the learned counsel for the parties end have also gone through the case law cited at the bar. section 23 of the arbitration act provides that where in any suit all the parties interested agree that any matter in difference between them, in the suit shall be referred to arbitration, they may at any time before judgment is pronounced, apply in writing to the court for an order of reference. admittedly, no such application was filed, by either of the parties. nor any particular order of reference was passed by the trial court, according to order dated march 18 1986, the whole matter, in dispute was referred to shri sarup chand gupta, advocate, for decision. under the circumstances, the provisions of section 21, arbitration act, were never attracted moreover, it was the intention of the parties for which the best judge was the trial court. since according to the trial court shri sarup chand gupta, advocate, was appointed as a referee, it accepted his report and passed the decree accordingly. under the circumstances, the decree being a consent decree was not appealable in view of sub-section (3) of section 96 of the code of civil procedure, which provides that no appeal shall lie from a decree passed by a court with the consent of the parties that being the case, it becomes immaterial whether shri sarup chand gupta was appointed a referee or an arbitrator if he was appointed as an arbitrator, then the only remedy open to the party aggrieved against the award was to file objections thereto. no such course was adopted by the respondents and, therefore, the question of filing any appeal against the said decree as such did not arise.6. consequently, this revision petition succeeds. the impugned order is set aside and the application filed by the petitioner for disc issal of the appeal on the ground that, the decree under appeal was passed with the consent of the parties is allowed with no order as to costs.