Case: Arati Paul Vs. The Registrar, Original Side, High Courtcalcutta &amp; Ors

1. This appeal, by special leave, is directed against a judgment of the Appellate Bench of the High Court of Calcutta dated 18th February, 1965*dismissing an appeal against an order of a single Judge by which he dismissed a petition under Article 226 of the Constitution on 26th August, 1964. The facts leading up to this litigation are that one Shrish Chandra Paul died in the year 1930, leaving behind his widow Pramila Sundari, his daughter Arati, and 4 sons Balai, Kanai, Netai and Gour. In the year 1945, Netai died leaving his mother Pramila Sundari as his sole heiress. On 27th September, 1946, a deed of gift in respect of two premises Nos. 60/11 and 60/12 in Gouri Beria Lane was executed by Pramila Sundari in favour of her three sons Balai, Kanai and Gour. On 18th March, 1952, there was an agreement for partition between Pramila Sundari and her three sons Balai, Kanai and Gour, by which the joint estate left by Shrish Chandra Paul was partitioned into four lots and a small portion of the property was left joint. On 13th June, 1957, Pramila Sundari instituted Suit No. 1045 of 1057 against Balai, Kanai and Gour for a declaration that the deed of gift and the agreement of partition were void and inoperative, and for a fresh declaration of the shares of the parties and partition of the joint properties. In this suit, Arati was also impleaded as a defendant. On 26th August, 1957, Pramila Sundari executed a will bequeathing her entire estate absolutely to Arati Paul and Gour in equal shares. On 13th January, 1958, Pramila Sundari died and, consequently, on 12th December, 1958, an order was made in Suit No. 1045 of 1957 transposing Arati Paul as the plaintiff. On 3rd February, 1960, Arati Paul applied in the Calcutta High Court for grant of Letters of Administration, with a copy of the will of Pramila Sundari annexed. This testamentary proceeding was contested and was marked in the year 1962 as Testamentary Suit No. 12 of 1962. On 17th December, 1962, the Testamentary Suit No. 12/1962 and the Partition Suit No. 1045/1957 appeared in the peremptorylist of Mallick, J., and the Testamentary Suit was partly heard. On 2nd and 3rd January, 1963, there was further hearing in the testamentary suit. On 4th January 1963, an agreement was put forward before Mallick, J. referring the dispute in both the suits to the sole arbitration of Mallick, J, extra cursum curiae. Since this reference is of importance we may quote it in full:-*reported in AIR 1966 Calis recorded that all the parties consent to this Testamentary Suit as well as the partition suit being Suit No. 1045 of 1957 and all the disputes involved in these two matters be settled and referred to the sole arbitration of the Honble Mr. Justice P. C. Mallick and the parties agreed to abide by any decision that will be given and no evidence need be taken except or to what his Lordship might desire and the evidence need not e recorded in any formal manner. Parties agree that his Lordship would have all the summary powers including the power to divide and partition the properties and to make such decrees as his Lordship thinks fit and proper and for the purpose of partition if necessary to engage or appoint Surveyors and Commissioners as his Lordship thinks best.It is recorded that all the parties have referred this matter to the Learned Judge in what is known as Extra Cursum Curiae jurisdiction of this Court.It is further recorded that all parties agree that they will not prefer any appeal from or against the decree or order that may be passed by his Lordship the Honble Mr. Justice Mallick.When this note was recorded all the parties to the two proceedings were represented through their counsel. In pursuance of this agreement, Mallick, J. passed an order in Suit No. 1045/1957 on 1st April, 1963. It may be mentioned that the main dispute in the present case is whether this order of Mallick, J. in this partition suit amounts to an award or a judgment in a suit. On the same day, by a separate order, he also granted Letters of Administration in the Testamentary Suit. On 5th April, 1963, Arati Paul filed an objection to the recording of this order as a judgment. On 4th May, 1963, drafts of decrees drawn up in terms of that order were issued. On 13th May, 1963, Arati Paul applied for change of her Attorney in the partition Suit No. 1045/ 1957. On 17th May, 1963, the order of Mallick, J. dated lst April, 1963 was filed on the record of Suit No. 1045/1957 as a judgment. On 24th July, 1963, the application of Arati Paul for change of Attorney was allowed. Thereafter, on 20th August, 1963, Arari Paul presented a Letter of Demand to the Registrar of the Original Side of the High Court to recall, cancel and withdraw the filing of the order of Mallick, J. dated lst April, 1963 from the record of the suit an to take it off the file of that suit.3. Failing to get any response, Arati Paul, on 4th September, 1963, presented a petition under Article 226 of the Constitution praying for issue of a writ in the nature of mandamus directing the Registrar of the High Court on the Original Side to forthwith recall, cancel and withdraw the filing of the said pretended Award (that is how the order of Mallick, J. was described in this petition) dated lst April, 1963 as a judgment in the said Suit No. 1045/1957 as part of the records of the said suit, and another writ of mandamus directing the Registrar of the High Court to forthwith take off the said pretended Award dated lst April, 1963 from the file and/or records of the said Suit No. 1045/1957. In this petition, apart from the Registrar of the High Court on the Original Side, Balai, Kanai and Gour were also impleaded as opposite parties. This petition under Article 226 of the Constitution was numbered as Matter No. 366 of 1963 and was summarily rejected by Banerjee, J. on 5th September, 1963. On 16th September, 1963, Appeal No. 228 of 1963 was entertained against this judgment under the Letters Patent, but an application presented for an interim injunction restraining the Registrar from taking any steps pursuant to the judgment of Mallick, J. dated lst April, 1963 pending disposal of the appeal was rejected. On 27th November, 1963, Arati Paul obtained special leave to appeal from this Court against the refusal of the interim injunction by the interlocutory order dated 16th September, 1963. While this appeal was still pending in this Court, the Appellate Bench of the High Court, on 28th April, 1964, allowed Appeal No. 228 of 1963, directed issue of a Rule in Matter No. 366 of 1963, and ordered stay of all proceedings pursuant to the order of Mallick, J. dated lst April, 1963, till the final disposal of the Rule. Since the appeal in this Court had become infructuous, it was not prosecuted and was dismissed for nonprosecution on 29th April, 1964. On 10th June, 1964, two of the parties Kanai and Balai took out a notice of motion for revocation of Letters of Administration which had been granted to Arati Paul by the order of Mallick, J. dated 1st April, 1963 in the Testamentary Suit. This notice was returnable on 15th June, 1964. Matter No. 366 of 1963, having been remanded by the Appellate Bench, appeared for final hearing before Sinha, J. on 15th July, 1964, but it was directed to go out of the list as an objection was taken on behalf of Kanai and Balai to the matter being taken up by him on the ground that he was a member of the Appellate Bench which had directed issue of the Rule in that Matter. On 16th July, 1964, this Matter No. 366/1963 was mentioned before the Chief Justice for being assigned to some other Judge, when a direction was made by the Chief Justice that a letter should be written by the party concerned to his Secretary. On 17th July, 1964, the Notice of Motion taken out by Kanai and Balai for revocation of Letters of Administration was partly heard by Mallick, J. who recorded the followingHeard. The Rule issued by the Appeal Court in Matter No. 366/63 in the matter of Arati Paul v. Registrar, O. S., appears to be intimately connected with the application that is now pending before me. I direct that this matter with the said Matter No. 366 be placed before the Honble C. J. for proper determination. Let this matter along with the matters appear day after tomorrow when I shall give directions. Interim Order to continue except that Arati Paul will collectappears that, simultaneously with these proceedings, an application for taking proceedings for Contempt of Court were also pending before him in this connection. Hearing in Matter No. 366/1963 was concluded on 12th August, 1964, and then an order was made that this Matter as well as the proceedings relating to Notice of Motion for revocation of the Letters of Administration and the application for taking proceedings for contempt should appear in the list for judgment one after the other. On 26th August 1964, Mallick, J. passed an older discharging the Rule in Matter No. 366/1963 as well as dismissing the other two applications. Subsequently, on 1st September, 1964, the preliminary decree drawn up on the basis of the order of Mallick, J. dated 1st April, 1963 in Partition Suit No. 1045/1957 was signed by him, and on 3rd September, 1964, the decree was filed. On 21st September, 1964, Arati Paul filed Appeal No. 226 of 1964 challenging the order dated 26th August, 1964 passed by Mallick, J. dismissing Matter No. 366 of 1963. The appeal was dismissed by the Appellate Bench of the High Court on 18th February, 1965 and the order of the High Court in the appeal was filed on 16th March, 1965. Arati Paul then applied for a certificate under Article 133 (1) of the Constitution for leave to appeal to this Court. That having been refused, she obtained special leave from this Court and has now come up in this appeal challenging the confirmation by the Appellate Bench of the order of dismissal of Matter No. 366 of 1963.

Reasoning:
17. A review of all these decisions shows that the question as to the nature of an order made in circumstances similar to those with which we are concerned has been considered both in England and in India primarily for the purpose of deciding whether such an order is subject to an appeal like an ordinary judgment of a Court from which an appeal lies. In some cases, the right of appeal was negatived on the ground that such a decision was in the nature of an arbitrators award. In other cases, it has been treated as a judgment amounting to a decision by consent of parties. In the case before us, the position is different. No appeal was ever sought to be filed against the order of Mallick, J. dated 1st April, 1963. Further the language of the agreement of the parties, on the basis of which Mallick, J. proceeded to make that order was different from that considered in these various decisions. At the first stage, the parties got it recorded that the matters were to be settled and referred to the sole arbitration of Mallick, J. The parties agreed to abide by any decision that might be given by him and that no evidence need be taken except or to whatever extent Mallick, J. might desire. The evidence need not be recorded in any formal manner. Mallick, J. was to have all the summary powers including the power to divide and partition the properties. The conferment of these powers on Mallick, J., who was already seized of the partition suit, was clearly intended to enable him to function as an arbitrator so as not to be bound by the rules of procedure applicable to him as a Court. At the same time, the parties added that Mallick, J. was to make such decrees as he thought fit and proper and, for the purpose of partition, if necessary, he could engage or appoint surveyors and Commissioners as he thought best. On the face of it, an arbitrator could not pass any decree. The decree could only be passed by Mallick, J. in his capacity of Court seized of the suit. Even if it be held that the first part of the agreement had the effect of bringing about a reference to him in his capacity as arbitrator, he did not cease to be seized of the partition suit as a Court. Even under the Arbitration Act, if a reference is made to an arbitrator in a suit pending in a Court, the Court does not cease to have jurisdiction over the suit.All that is required by the provisions of the Arbitration Act is that no further proceedings are to be taken by the Court, except in accordance with the other provisions of that Act. The suit continues to remain pending before the Court. In a case like the present, where the arbitration agreement envisages that the Presiding of the Court should himself act as an arbitrator, he, in such circumstances, will obviously occupy a dual capacity. He will be both an arbitrator to decide the matters referred to him by the agreement of the parties, and a Court before which the suit continues to remain pending having jurisdiction to deal with the suit in accordance with the provisions of the Arbitration Act.It is a question whether a reference to arbitration by a Presiding Judge, before whom a suit is pending, can be competently made under the Arbitration Act, butthat is a point on which we need express no opinion, because if it be held that there was no reference to arbitration in the present case, the order passed by Mallick, J. must be held to be a preliminary decree passed by him as a Court seized of the partition suit. On the other hand, even if it be held that there was a competent reference, it is clear that, after deciding the matters left to his decision as an arbitrator by the parties, Mallick, J., proceeded further to deal with the suit himself as a Court and to pass a preliminary decree in it which course being adopted by him was envisaged by the parties themselves when they stated that he could make such decrees in the suit as he thought fit. The actual order passed by Mallick, J. also makes it clear that, in passing that order, he purported to act as the Court deciding the suit and not as the arbitrator to whom some matters in dispute were referred by the parties.At the beginning of the order, Mallick J. described himself as "the Court." When making the operative order, he used the followingthe result, for the present, I will pass a preliminary decree asthe face of it, when he passed this order, he acted as a Judge seized of the suit who alone was competent to pass the preliminary decree in the suit. Consequently, we cannot accept the submission made by Mr. Chagla that the order made by Mallick, J. should be held to be an award of an arbitrator pure and simple and not a decree by a Court.18. We are not concerned in this appeal with the question whether it was appropriate for Mallick, J. to have dealt with the suit in this manner, nor whether the actual order made by him passing the preliminary decree was correct or was liable to be set aside on the ground of the incorrect procedure adopted by him.As we have mentioned earlier, the sole relief claimed before the High Court was the issue of a writ of mandamus directing the Registrar on the Original Side to recall, cancel and withdraw this order and to take it off the record, on the ground that it was an award and not a judgment of the Court. Since we have held that it was a judgment of the Court, the Registrar on the Original Side, under the Rules of the Calcutta High Court, was bound to file it on the record and retain it there. The appellant could have sought appropriate remedy, for having that judgment vacated and, if such a remedy had been sought against that judgment directly, the question whether it was a good judgment and should be retained on the record or not could have been appropriately decided. The remedy sought by the appellant of seeking a writ to restrain the Registrar on the Original Side from keeping the judgment on the record of the suit could not possibly be allowed, while the judgment stood and was not vacated.