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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

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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

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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

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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

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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

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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

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