The brief facts out of which the present first appeal arises are as follows: That on 16-3-1960 the property in-question known as Dehli Muslim Hotel, Anarkali was taken over by the appellant as Waqf property. By operation of law, the respondent became the lessee under the appellant. As certain disputes arose, an agreement was entered into between the parties on 22-9-1977. It is pertinent to mention here that since the appellant took over the property, the respondent had been paying the rent to the appellant and the appellant now and then enhanced the rent according to the prevailing market rate. On 1-7-1981, the rent was enhanced from Rs,1,820 to Rs,2,548 per month and the rent was further enhanced from Rs,2,548 to Rs,9,031 per month w,e,f, 1-6-1984. The respondent aggrieved by the last enhancement, submitted an appeal before the Chief Administrator who dismissed the appeal on 8-11-1986. The respondent then filed a suit for declaration alongwith application under Order 39, rules 1 and 2 read with section 151, C.P.C.. against the order of the Chief Administrator dated 8-11-1984. The learned Civil Judge dismissed the application for grant of ad-interim injunction vide his order dated 17-4-1985. It is pertinent to mention here, that the respondent did not file any appeal against order dated 17-4-1985. During pendency of the suit, the respondent filed an application under section 5 and 11 of the Arbitration Act on the basis of the aforementioned agreement made between the parties on 22-9-1977 for the appointment of an Arbitrator on the ground that the appellant had failed to use all reasonable dispatch in entering on or proceeding with the reference and making the award. The learned trial Court vide its order dated 23-7-1985 accepted the application of the respondent and appointed Mr. Imtiaz Ahmed Additional Director-General, Excise and Taxation as Arbitrator; on 28-7-1985, with the direction that the Arbitrator had to submit his award within two months but the award was submitted by the Arbitrator on 19-12-1985 i,e, much later than the stipulated period. The Arbitrator set aside the claim for damages but accepted the claim regarding the enhancement of rent. The present appellant submitted objections on 22-1-1986 while the respondent did not file objections; against the award. The learned Civil Judge without framing issues, rejected the objections and allowed the application of the respondent and made the award as rule of the Court vide his judgment and decree dated 11-3-1986.
2. The learned counsel for the appellant argued that the trial Court did not frame any issue and without recording evidence of the parties made award rule of the Court in a summary manner. It is further contended that award was made by the Arbitrator without recording evidence of the parties, therefore, the award is not sustainable in the eye's of law. The learned Arbitrator was required to give reasons for the award but in the present case the learned Arbitrator has not supported his award with reasons, therefore, award is not sustainable in the eyes of law. The learned counsel further contended that the Arbitrator was bound to submit award within two months; whereas he submitted the award after five months, therefore, award is not sustainable in the eyes of law. The learned counsel further stated that the Arbitrator has given the award on the basis of personal knowledge and secret inquiry without associating the parties, therefore, award is not sustainable in the eyes of law. The order regarding appointment of the Arbitrator by the Court is not sustainable in the eyes of law as the appointment was against the provisions of the agreement. The learned counsel urged that the respondent filed a suit alongwith application for stay which was refused, therefore, the second suit was filed with ulterior motive and as such the respondent does not .deserve any relief. The disputed premises were under the tenancy of the husband of respondent and the other wife of the husband of the respondent Mumtaz Begum accepted the enhancement, therefore, this fact was not considered by the Arbitrator and as such the Award is not sustainable on this ground alone.
3. The learned counsel for the respondent contended that present proceedings were initiated by the intervention of the Court but the appellants did not challenge the same in time, therefore, the appellants are estopped by their conduct to challenge the proceedings at this belated stage. The learned counsel further contended that the appellants have participated in the proceedings before the Court as well as the Arbitrator, therefore, now cannot agitate the matter at this stage after the result of the award. The learned counsel further urged that the award is based on reasons, therefore, the contentions of the learned counsel for the appellants are not sustainable in the eyes of law. The agreement was executed between the parties in 1977, the appellants did not fulfil their obligation under the agreement, therefore, keeping in view the circumstances; the Arbitrator as well as the trial Court decided the matter in the interest of justice and fairplay. The learned counsel further contended that Civil Court has no jurisdiction to go on merits of the award; once it is submitted in accordance with law. The learned counsel further contended that the award was filed in the Court in time as there was no challenge immediately after the award, therefore, by virtue of their conduct they are estopped to challenge the same at this belated stage. The learned Arbitrator after examining all the documents gave the award, therefore, at this belated stage the appellants are estopped to take any objection against the award. The appellants had a remedy at the relevant time to challenge the award under sections 5 and 11 of the Arbitration Act, 1940 and having not done so in time, they are estopped by their conduct.
4. Both the learned counsel raised many contentions on the material point on the basis of which the controversy can be resolved as to whether the trial Court was justified to dismiss to objections without framing issues and without recording evidence in a summary manner.
5. I have given my anxious consideration to the respective contentions of the learned counsel for the parties and perused the record myself.
The controversy arises out of the arbitration proceedings and the provisions of C'.P.C. are applicable by virtue of section 41 of the Arbitration Act. The relevant provisions of the Arbitration Act to resolve the controversy are reproduced hereunder:-- "41. Procedure and powers of Court.---Subject to the provisions of this Act and of rules made there under-- (a)the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court, and to all appeals, under this Act, and (b)the Court shall have, for the purpose of, and in relation to, arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court: Provided that nothing in clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters."
Section 33 of the Arbitration Act is also reproduced hereunder: "33. Arbitration agreement or award to be contested by application.---Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits: Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit: Provided further that no application challenging the existence or validity of an award, or for having its effect diminished, shall be entertained by the Court unless the applicant has deposited in the Court the amount which he is required to pay under the award or has furnished security to the satisfaction of the Court for the payment of such sum or the fulfilment of any other obligation by him under the award.
26-A. Award to set out reasons.--(1) The arbitrator or umpire shall state in the award the reasons for the award in sufficient detail to enable the Court to consider, any question of law arising out of the award.
(2) Where the award does not state the reasons in sufficient detail, the Court shall remit the award to the arbitrators or unpire and fix the time within which the arbitrator or umpire shall submit the award together with the reasons sufficient detail: Provided that any time so fixed may be extended by subsequent order of the Court.
(3) An award remitted under subsection (2) shall become void on the failure of the arbitrator or unpire to submit it in accordance with the direction of the Court."
Section 30 of Arbitration Act:-- "Grounds for setting aside award.---An award shall not be set aside except on one or more of the following grounds, namely:-- (a)that an arbitrator or umpire has misconducted himself or the proceedings; (b)that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35;
(c) that an award has been improperly procured or is otherwise invalid.
6. It is admitted fact that on the basis of pleadings of the parties, where complicated questions of fact and law are involved it is the duty of the Court to decide cases on evidence and not merely on affidavits. Reliance is placed on "Lilandar v. Firm Radha Kashan Ramshaya and others" (AIR 1946 Nagpur 5) and relevant observation on page 8 is repreduced hereunder: Another argument of the non-applicants was that ordinarily a case under section 33, Arbitration Act, is to be decided on affidavits and not on evidence. Section 33 of the Act empowers a Court to decide a case on affidavits but it may in appropriate cases, whenever it deems it just and expedient, set down and application for hearing on other evidence and it may pass such orders for discovery and particulars as it may do in a suit. In a case of this magnitude which involves many complicated and contested questions of fact and law the Court will normally decide the case on evidence and not merely on affidavits. In ILR (1941) 2 Calcutta 123 the question involved was of gaming and wagering contract and it was held that it could not be conveniently tried on affidavits and the application under section 33, Arbitration Act, was set down for trial on evidence. The circumstances that a Court may in some cases decide an application under section 33 of the Act on mere affidavits is not sufficient to refuse to interfere in revision with an improper order refusing an amendment when the effect of that order is to deprive a party of placing his case before the Court to enable it to determine the real question in controversy between the parties."
7. The judgment and decree show that the trial Court decided the objections of the matter in a summary manner. Keeping in view in the present case of this magnitude which involves many complicated and contested question of law and facts, recently section 26-A, section 30 and section 41 of Arbitration Act. (sic) It is the duty and obligation of the trial Court to frame issues under Order 14 of C.P.C. but the learned trial Court did not frame issues. It is a basic and fundamentals principle of law that if no issues are framed at all and the parties are prejudiced, it will be a material irregularity and the parties can, as a matter of right, claim the framing of issues because the framing of issues, is one of the most important stage of the trial, for the reasons that under Order 18, Rule 2, C.P.C. the parties are required to prove the issues and not the pleadings generally. Where a matter not pleaded is put in issues the suit must be decided on the issues as framed. Under Order 20, Rule 5, C.P.C. the Court is bound to give a decision on each issue framed.
The Appellate Court is also to decide the appeal on the basis of the issues framed by the trial Court. It is pertinent to mention here the provisions with regard to affidavit relate to the mode of receiving evidence. In "Firms Sam Lal Mahadeo Prasad v. Kedar Nath" (AIR 1935 Allahabad 519), the relevant observation is as under:-- "The Court has not attempted to act in accordance with the provisions of Order 26, rule 5, and that the Court should state its finding or decision with reasons therefore upon each separate issues."
8. In this view of the matter, the learned trial Court violated the mandatory provisions of the Civil Procedure Code which are applicable in the present controversy by virtue of section 41 of the Arbitration Act, therefore, the judgment of the trial Court is not sustainable in the eyes of law.
9. In view of what has been discussed above, I find that the judgment and decree of the trial Court under appeal suffers from legal infirmity and material irregularity; the same is accordingly set aside. The appeal is accepted. The case is remanded to the trial Court to frame issues on the basis of pleadings of the parties and then decide the application in accordance with law, leaving the parties to bear their own costs.
Case remanded