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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 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

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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 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  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 122 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."                            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 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 124 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,                            125 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 17 126