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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 30 of 155)
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of the item allowed in their favour.


THIS was a reference to the Full Bench made by Straight and BENCH.
Mabmood, JJ. (by their order of the 10th February 1890), as to whether,
under the circumstances detailed in the judgment of Edge, G.J., the 18 * 296
defendants were entitled to dispute 'the correctness of the item given credit (F.B.) =
for to them by tbe plaintiff. 11 A.W.N.

The facts of this case are fully given in the judgment of Edge, C. J. (1891) 83.
Munsi Bam Prasad, for the appellant.
Pandit Ajudhia Nath and Pandit Sundar Lai, for the respondents.


[297] EDGE, 0. J. This is a suit by the Secretary of State for India
in Council to recover a balance of money alleged to be due under a lease,
dated the 24th October 1873. The lease related to a bridge of boats over
the Ganges in this neighbourhood. Tbe lease provided that the lessee
should pay the sum of Rs. 65,000 by certain instalments. The last instal-
ment was to be paid off on the 30bh September 1878, and the lease, which
was for five years, would terminate on tbe 1st October 1878. That
Rs. 65,000 was to represent the value of the plant which belonged to the
Government, and by clause 4 of the lease it was provided that although the
lessee might renew any portion of the plant which was unfit for work
in order to keep the stock in good repair, "he should have no right what-
soever to transfer or dispose of it or any portion thereof until he has paid
up the sale-price in full, the Government retaining a lien on the stock so
long as any portion of the sale-price is due. Clause 17 of tbe lease provides
that the Government if it saw fit at the expiration of the lease to farm
this bridge to any other contractor should be bound to take over the
lessee's plant at a fair valuation to be determined by arbitration. Clause
18 provides for a different event. It is as follows : " Should Govern-
ment, however, see fit to cancel the lease during its currency with a view
to substitute a pontoon bridge, or for any other cause for which the lessee
is not responsible, he will be entitled to full compensation from Govern-
ment for all losses."

On the 24th June 1878, Kalka Prasad, the lessee, died. In the
following July, the Magistrate of Allahabad, acting for the Secretary of
State for India, deprived Kalka Prasad's representatives of the use of the
bridge and seized all the stock and materials. On the 23rd August 1878,
the Magistrate directed two gentlemen to assess the value of the stock.
Those gentlemen assessed the value of the stock at Es, 10,700. It
was subsequently ascertained that there was a portion of the stock which
was not included in that valuation. That omitted portion was valued at
Rs. 200, increasing the valuation of these gentlemen to Rs. 10,900. The
Magistrate added a percentage to that valuation and fixed the value of the
[298] entire stock and boats at Rs. 12,100. Neither the fifth instalment
of Rs. 6,500 nor the final instalment ever was paid. The time never came
to pay the final instalment, because, without any reason, so far as I can
see and during the currency of the lease, the Magistrate of Allahabad
took it on himself to determine the lease and to deprive the lessee's repre-
sentatives of such possession of the stock as they were entitled to under
the lease. The Secretary of State for India in Council has brought this
suit to recover a balance alleged to be due to him in respect of the final


13 All. 299



1891 and penultimate instalments, after making an allowance^or certain sums

JAN. 5. which he admits the defendants are enititled to take 'credit for. The

eighth paragraph of the plaint is as follows: "That on the expiry

FULL of the said lease the plaintiff saw fit not to renew the same, and

BENCH, thereupon, with n view to Government taking over the lessee's plant
under the term of the said lease, the valuation of such plant was duly

18 A, 296 referred to arbitration and the value thereof determined by the arbitra-
tors to Rs. 10,900." Now I have no hesitation in saying that the state-
it A.W.N. mQn tg contained in that paragraph are the reverse of truth. From begin-

(1891) 85. n j n g to en d ft is a misleading statement. The taking of the^plant, out of
the possession of the lessee's representatives took place in July 1878,
the so-called arbitration, which was in truth no arbitration at all, took
place in August 1878, and the Magistrate of Allahabad passed his order
dealing with figures on the 17th September 1878. Looking to the plaint,
particularly at paragraph 8, one would think this was a case falling under
clause 17 of the lease, namely, the clause which provided that Govern-
ment should take over the lessee's plant at a fair valuation to be deter-
mined by arbitration in case of its seeing fit on the expiration of the lease
to farm the bridge to any other contractor. The defendants contended
before the Divisional Bench that they were entitled to question the accuracy
of the so-called valuation of Rs. 10,900 and to show that the fair value of the
stock and plant seized by the Government far exceeded that of Rs. 10,900,
which, according to the plaint, the Government were prepared to allow for
it. On the other hand, those who represented the Secretary of State here
contended that the defendants were not entitled to show that the value of
that stock and [299] plant exceeded Rs. 10,900 mentioned in the tenth
paragraph of the plaict. In my opinion this is not strictly a case of set-off
or counter claim. The Secretary of State for India in Council, if he ia entit-
led to maintain this suit, as to which I have under these circumstances grave
doubts, asked for a balance alleged to be due to him on account between
him and the defendants. That balance was arrived at, so far as this point
is concerned, by the plaintiff by admitting that the defendants were to be
credited in the account with the value of the stock and plant seized by the
representative of the Secretary of State, but by an utterly erroneous
paragraph, namely, the eighth of the plaint, he endeavours to tie down the
defendants to a valuation of Rs. 10,900 as if that was a sum which
could not be questioned. In my judgment the defendants are entitled to
show what the value of the plant and stock in question was with the
object of showing that balance claimed by the plaintiff is not the true
balance of the accounts between the parties. This is my answer to the

STRAIGHT, J. I entirely concur in the answer of the learned Chief
Justice to the reference, which is entirely in accordance with the
view I entertained on the hearing of the appeal before my brother
Mahmood and myself. As I said then so I repeat now, that it does not
appear to me there is any difference between this case and a case in which,
on a plaintiff coming into Court and seeking a balance of account from a
defendant in which account certain amounts are credited to the defendant,
the defendant, as the part of his defence, saya " those credits which you
have given in account are incorrectly stated."

TY.RRELL, J. f entirely concur with everything that has fallen from
the learned Chief Justice.

MAHMOOD, J. I also agree with the learned Chief Justice, but wish
to add that the reference to the Full Bench was partly due to the doubt




which I entertained as to the effect of s. Ill of the Code of Civil Procedure
upon the pleadings of ihe parties and the facts of the case. I felfc that
the expression " an ascertained sum of money " which occurred in that
section restricted its operation, as it [300] undoubtedly does, to matters
of set-off of a very limited kind, and excluding as it does counter-
claims as understood in the Judicature Acts in England it might preclude
the defendant from proving in this action the value of the plant and boats
which had been taken over by the Magistrate of Allahabad as stated by
the learned Chief Justice. I am, however, now after having had the
advantage of conferring with the learned Chief Justice and my learned
brothers waived my doubt, and I have done so with special reference to
the terms of paragraph 17 of the deed of the 24th October 1873, which,
as the learned Chief Justice has explained, renders the dispute between the
parties as to the value of the boats a question forming part and parcel of
the claim, the matter being one which arises out of the same transaction
as the claim. I think therefore that there is nothing in s. Ill of the
Code of Civil Procedure to prevent our going into the question of the value
of the plant. This is my answer to the reference.

13 A. 300 (PC.) -18 I. A. 55=6 Sar. P.C.J. 14 = 13 Ind. Jur. 283,



Lord Watson, Lord Morns, and Sir B. Couch.
[On appeal from the High Court at Allahabad.!

KUAR AND ANOTHER (Plaintiffs).

[27th January, 1891.]

Arbitration under the Civil Procedure Cede Invalidity of award when not made withiij,
the time fixed by the Court- Civil Procedure Cole, ss. 509, 514, 521


When once an award has been delivered, it is no longer competent to the Court
to grant further time, or to enlargu the period for the delivery of this award
under section 514 of the Code of Civil Procedure.

Where an award was not made within the period fixed by the Court's order
but was made after the date piven in the last order extending the time for its
delivery, held, that the award was invalid. The decree of the Court dealing
with the award as if duly made within the time, could not be treated as enlarg-
ing it.

The judgment in Chuha Mai v. Hari Ram (I) approved.

Order to be that the suit should proceed. Neither party to be entitled to costs
in either Court below after the first judgment with regard to the stage at which
the objection was taken ; and the costs prior to that to abide the issue.

38 C. 522 <5a4) = 121nd. Gas. 13 ; 15 M. 384 (386) ; 16 Ind. Gas. 223 (224) = 16
C.L.J. 573 ; 2 N.L.R. 81 ; Appl., 13 A. 400 ; 14 A. 347 (348) ; 25 C. 141,; 34
C. 941 = 11 C.W.N. 959 = 6 C L.J. 237; 11 A.W.N. 150; Cons.. 16 B 263
(265); R., 26 A. 105 = A.W.N. (1903) 205; A.W.N. (1905) 47 = 27 A. 459 = 2
A.L.J. 201 ; 30 A. 169 = A.W.N. (1908) 59 = 5 A. L.J ]44 ; 31 C. 849 (53) = 8
O.W.N. 705; 33 C. 496; 22 M. 22 (24) ; 7 Bom.L.R. 688 ; 8 C.W.N. 916 ; 14 C.P.
L.R. 42 : 2 N L.R 121 ; 84 PR. ()90l) = 112 P.L.R. (1901) ; c9 P.R. (1907) ; 3
8.L.R. 106 (108) =4 Ind. Gas. 590 (600) ; 6 S.L.R. 89 (96) ; 6 S.L.R 168 (175 ; 9
Ind. Gas. 173 = 9 M.L.T. 'J51 (256' ; 17 Ind. Gas. 688 (639) = 8 N.L.R. 174 (176);
19 Ind. Gas. 348 (350) ; (1911) 1 M.W.N 151 (164) = 21 M.L J. 263 (280)= 16 O.
C. 94 (98) = 17 Ind, Gas. 320 (322) ; Not 4ppl,, 7 led. Gas. 595 (593) = 4 8. L.R,,
26; D., 14 A. 343 (345) ; 17 Ind. Gas. 7 (8) ; 119 P.L.R. (1902) = 88 P.R. (1902),


J A ^. 5.


*' * 296

J1 A.W.N,
(1891) 85.

(1) 8 A. 548.


1891 [301] APPEAL from a decree (16th December 1887) affirming a

JAN -27. decree (6th April 1885) of the Subordinate Judge of the Agra district.

This suit was brought by the respondents, the widow and mother of

PRIVY Chaudhri Bishambar Singh, deceased, against the appellant and two other

COUNCIL, defendants, to recover money and property alleged to have been deposited

~"V~ ann with them. The appellant denied having appropriated, or possessed, the

PC 1 Property. On the 16th July 1884, the parties filed in the Court of the

' _ Subordinate Judge an agreement to refer all matters in dispute to the

' ' ~~ arbitration of Lalas Bansidhar and Jaganath Prasad, nominated by the

*''_'' plaintiffs, and Lalas Eadha Prasad and Janki Prasad, by the defendant,

with Lala Saghan Das as umpire. On the 17th an order of reference,

9RS UP ' ma ^ e ky the Court, fixed the 19th August 1884 for the hearing of the suit

by the Court. On the 9th August the time for the delivery of the award

was extended to the 5th November, and again on the 4th November to

the 30tb. On the 5th December there was an application for further

extension which was granted till the 5tb January 1885, on which day a

further extension was granted until the 19th January. The award was

not, however, delivered till the 23rd March. It was in favour of the

plaintiff for Rs. 29,431 payable by the Eaja, defendant, he being the

only one of the defendants whom the arbitrators held liable. His

objections were heard by the Subordinate Judge. They did not include

the objection that the award had been delivered after the expiration of

the time for delivering it. The award was maintained by the decree,

which was for the above amount, each party to pay their own costs.

From that decree the defendant appealed to the High Court. A
Division Bench (STRAIGHT and TYRRELL, JJ.) dismissed the appeal
with costs.

The first objection taken in the High Court was that the award was
not a valid one. The judgment, however, (having pointed out that the
Court, which makes the reference, is intended by the Code to have
complete control in the matter,) was that the direction to the Court to
fix a time might be regarded as merely directory, not as [302] mandatory.
And the conclusion of the Senior Judge of the Division Bench was the
following :

" At any rate, whatever defects there may have been in the order of
the 5th January 1885, they were, in myi opinion, defects that could be
cured, and I hold that the adoption of the award must be taken to amount
to an enlargement of the time for the delivery of the award to the date on
which it was in fact delivered, and to a ratification of what had been done
by the arbitrators. Moreover, no objection was taken by either of the
parties to his acceptance of the award on the ground now urged, and it
seems to me not unreasonable to assume that any such objection was
waived by them."

On this appeal

Mr. J. H. A. Branson, for the appellant, argued that the award not
having been made within the period allowed by the Court, for that
reason, was invalid.. On three occasions the time fixed for the delivery
of the award expired, without any award having been made, or any
extension of time having been granted. No date had been fixed in the
first instance, and on the last occasion when extension of time was
granted, the time limited in the previous order of extension had already
expired. Thus the last date was irregularly fixed, but even that bad
expired when the award was delivered.



He referred to Nusserwanjee Pestonjee v. Meer Mynoodeen Khan, 1891
wullud (1) decided on reference to the Bombay Eegulation VTI of 1827. JAN. 27.
Also to the Code of Civil Procedure, Act XIV of 1882, sa. 508, 514 and
521, and to the previous law in s. 318 of Act VIII of 1859. Also to the PRIVY
Statute 52 and 53, Victoria, chapter 49, the Arbitration Act, 1889, s. 9, COUNCIL,
where the Court's power to enlarge the time, after the expiration of
the time for making it, is expressly enacted for England, and to Gunga ** A> 3 ^
Gobind Naek v. Kalee Prosunno Naek (2) ; Simson v. Venkatagopalan (3) ; ^- c -) ^
Behari Das v. Kalian Das (4) ; Ghuha Mai v. Hari Ram (5). 18 I|A> 58=

Mr. Lumley Smith, Q. C., and Mr. Reginald Brown, for the res- 6 Sar> p Ci J>
pendents, supported the decree of the High Court. They con- [303]
tended that the Court had power to enlarge the time and in fact * B( *' ^ Ufl
had done so. If the appellant had at any time a right to extensions 2 ^'
made, that right had been waived. The sections of the Civil Procedure
Code were directory ; the appellant did not take his objection at the
right time, and passed over the irregularity.

They referred to Lord v. Lee (6) ; May v. Harcourt (7). The Common
Law Procedure Act, 1854 (17 and 18 Vic., C. 125, s. 15.)

Mr. J. H. A. Branson, in reply, referred to Mason v. Wallis (8). Their
Lordships' judgment was delivered by LORD MORRIS.


LORD MORRIS. This case must, in their Lordships' opinion, be
decided entirely upon the construction of the Civil Procedure Code,
sa. 508, 514 and 521, and it does not appear that the construction of those
sections can be very much added by analogies drawn from sections of the
English Common Law Procedure Act which have been referred to, dealing
with arbitrations, because a specific rule has been laid down in the Code
for dealing with arbitrations, probably grounded on reasons of public

By s. 508 it is laid down that the Court shall by Order refer to the
arbitrator the matter in difference which he is required to determine, and
shall fix such time as it thinks reasonable for the delivery of the award
and specify such time in the Order. In this case the Order of Eeference
made by the Court does not specify, directly, any time. It merely fixes a
date for the hearing of the case by the Court, which is not in strict com-
pliance with the terms of the section though it might be sufficient. Their
Lordships are of opinion that s. 508 is not merely directory, but chat it is
mandatory and imperative. S. 521 declares that no award shall be valid
unless made within the period allowed by the Court, and it appears to
their Lordships that this section would be rendered inoperative if s. 508 is to
be merely treated as directory. In the present case, however, the Subordi-
nath Judge repeatedly made orders enlarging the time, and in those orders
fixed the time within which the award was to be made, although he did
not do so in the orginal Order of [304] Reference ; and their Lordships are
of opinion that it was competent for the Subordinate Judge to do so under
s. 514 of the Code, which enables the Court to grant a further time and from
time to time to enlarge the period for the delivery of the award in cases when
it cannot be completed within that period, from want of necessary evidence
or from any other cause. The last order of enlargement made by the
Subordinate Judge was on the 13tb of March 1885, extending the time to

1) 6 M.I. A. 134. (2) 10 W.B. 206. (3) 9 M. 475 (4) 8 A. 543.

(5) 8. A. 548. (6) L.R. 3 Q.B. 404. (7) L.R. 13 Q.B.D. 638.

(8) 10 B. and C. 107.



1891 the 20th of March 1885, and no longer. No award was delivered within

JAN, 27. that time, though one was delivered on the 24th of March 1885, and the

first question which appears to their Lordships to arise is, whether it

PRIVY would have been competent for the Subordinate Judge to have extended

COUNCIL, the time after the award was made. Their Lordships are of opinion that

~r~ it would not. When once the award was made and delivered the power

p ' of the Court under s. 514 was spent, and afthough tha Court had

~ the fullest power to enlarge the time under that section as long as the

P r^i awar ^ was n k completed, it no longer possessed any such power when

i nce fcnafc fc * me wa8 pas8edt ^ ne Court did, however, receive the award

Y*j delivered on the 24th of March 1885, and a decree was made upon it by

282 fcl18 Subordinate Judge, which was confirmed by the High Cjurt. The

objection now put forward for the appellant is that this award is not valid.

That contention has to support the express statutory enactment that no

award shall be valid unless made within the period allowed by the Court.

The utmost period allowed by the Court was until the 20th of March 1885,

and therefore the award delivered on the 24th of March 1885 was so

delivered by arbitrators who no longer had any lawful authority to make

it. Again, as a matter of fact, there was no enlargement of the time made

by the Court after the 20th March 1885.

This objection- to the award was apparently not brought to the notice
either of the Subordinate Judge or of the High Court. But the Statute is
there, and the Judges were bound to take judicial notice of it.

Tn the case of Ohuha Mai v. Hari Ram (l), Mr. Justice Oldfield lays
down the law upon this subject very clearly. He says " The [305] award
in this case was not made within the period allowed by the Court, and
consequently it must be held to be invalid ; that is, there was no award
on which the Court could make a decree." That judgment appears quite in
point in this case, and it is a judgment of which their Lordships entirely

Upon these grounds their Lordships will humbly advise Her Majesty
to reverse the judgments of the Subordinate Court and the High Court, to
declare the award invalid, and to direct that the suit shall be proceeded
with, and that neither party shall be entitled to costs in either Court
below from and after the date of the first of the said judgments ; and that
the costs prior to that date shall await the issue of the case. The respond-
ents must pay to the appellant the costs of this appeal. The reason for
not giving the appellant the costs in the Courts below arises from the fact
that their Lordships are of opinion that the point upon which this award
is now held to be invalid, was certainly noD raised before the Subordinate
Judge, nor, as far as appears, in tne objections that were urged before the
High Court.

Appeal allowed.

Solicitors for the appellant : Messrs. Barrow and Rogers.
Solicitors for respondent : Messrs. Linklater and Co.

(i) 8 A. 548.



13 A. 303 = 11 A.W.N. (1891) 99.

Before Sir John Edge, Kt., Chief Justice, and Mr. Justice Straight.

(Defendants.)* [30bh January, 1891.]

Limitation Application for leave to apreal in forma pauperis Subsequent appeal in
regular form Payment of court-fee on appeal, no retrospective effect.

Where an application for leave to appeal in for ma pauper is having been presented
and rejected, a regulit appeal was subsequently filed, but after the period of
limitation had expired.

[306] Held that the payment of the court-fee on the regular appeal could not
be held to relate back to the memorandum of appeal which accompanied the
application for leave to appeal as a pauper, so as to convert that memorandum
of appeal into a good appeal within time. Until the regular appeal was filed
there was nothing before the Court which it could treat, even provisionally, as a
memorandum of appeal.

[N.F., 84 P.R. (1901) ; F., 78 P.R. (1906) = 150 P L.R. (1906) ; Relied npon. 18 Ind.
Cas. 518 ; R,, 159 P.L.R. (1901) ; D., 26 A. 329=A.W,N. (1904) 24 ; 11 C.P.L R.

3 (4).]

IN this case the plaintiff filed a suit in the Court of the additional
Subordinate Judge of Ghazipur on the 24th September 1885. That suit
was dismissed on the lOfch May 1887. The plaintiff appealed ; and the
case was remanded to the lower Court for trial on the merits. Judgment
was given on remand on the 3rd May 1889, and the plaintiff's claim was
again dismissed. On the 22nd May 1889, the plaintiff presented to the
District Judge an application for leave to appeal in forma pauperis,
accompanied, as required by law, by a copy of the proposed memorandum
of appeal. That application was rejected on the 27th May. On the 31st
May 1889, the plaintiff applied to the Judge to review his order of the
27th May. That application also was rejected on the 13th June. On the
22nd June, the plaintiff applied to the High Court for revision of the
Judge's order of the 13th June. The High Court disallowed that applica-
tion on the 16th August. On the 25th August thd plaintiff applied to the
Judge to be allowed to file a regular appeal in respect of so much of
the property claimed as would be covered by a court-fee of Rg. 10. That
application having been allowed, the plaintiff paid in Es. 10, and on the
19th September, filed a regular appeal. When that appeal came on for
hearing on the 3rd January 1890, it was dismissed as being barred by
limitation. The plaintiff then appealed to the High Court, where it was
contended that a memorandum of appeal, namely, that presented on the
22nd May 1889, was already before the Court, and that the payment of
the court-fee would convert that memorandum into a good memorandum
of appeal from the very date when it was presented along with the appli-
cation for leave to appeal in in forma pauperis.

Mr. Abdul Eaoo/and Munsbi Gobind Prashad for the appellant.

Munshi Ram Pershad and Pandit Sundar Lai for the respondents.


EDGE, C.J., AND STRAIGHT, J. This is an appeal from a judg-
ment of the Additional Judge of Ghazipur, dated the 3rd January,

"Second Appeal No. 4123 of 1890, from a decree of H. F. D. Pennington, Esq..

Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 30 of 155)