civil appellate jurisdiction civil appeals number. 112 to
116 of 55.
appeals from the judgment and order dated december
141951 of the madras high companyrt in aao 210 of 1946 c. m.
ps. number. 3273 and 3274 of 1946 aao 661 of 1946 and aao 49
of 1947 respectively arising out of the judgment and order
dated january 28 1946 of the subordinate judge
devakottah in 1. a. number 18 of 1945 in o. s. number 91 of 1941.

v. viswanatha sastri k. parasaran and m.s.k. aiyangar
for the appellants. rajah iyer r. rangachari and r. ganapathy iyer for
the respondent. 1959. numberember 13. the judgment of the companyrt was delivered
by
gajendragadkar j.-these five appeals arise from a partition
suit  o.s. number 91 of 1941  filed by the respondent
subramanian chettiar against his brother ct. a. ct.
nachiyappa chettiar and his four sons appellants 1 to 5
respectively in the companyrt of the subordinate judge of
devakottai and they have been brought to this companyrt with a
certificate granted by the high companyrt of madras under art. 133 of the companystitution. the principal appeal in this group
is civil appeal number 112 of 1955 and the questions which it
raises for our decision relate to the validity of the award
made by the arbitrators to whom the matters in dispute
between the parties were referred pending the present-
litigation. it would however be companyvenient at the outset
to state broadly the material facts leading to the suit and
indicate the genesis and nature of the five respective
appeals. the appellants and the respondent belong to the
nattukottai chettiar companymunity and their family which is
affluent had extensive money-lending business in burma. chidambaram chettiar the father of appellant 1 and the
respondent died on august 20 1926. at the time of his
death the respondent was an
infant 6 years of age. appellant 1 had already been
associated with his father in the management of the business
and on his fathers death he became the manager of the
family and took charge of its affairs and business. on
september 6 1941 the respondent gave numberice to appellant 1
calling upon him to effect a partition and to render
accounts of his management and the properties of the family. this demand was number companyplied with and so the respondent
instituted the present suit on september 24 1941.
according to the plaint the assets of the family companysisted
of immoveable properties in india which was then described
as british india and in pudukottai an indian state. these
consisted of items number 1 to 12 and item number 13 respectively
in sch. a. the jewels and moveables belonging to the
family were set out in sch. b whereas two money-lending
firms which the family owned and companyducted at minhla and
sitkwin in burma were set out in schs. d and e
respectively. the plaint further alleged that chidambaram
chettiar had entered large amounts belonging to the family
in the names of the members of the family in what are
called thanathu maral accounts and these amounts were
invested in various firms or lent to several individuals. the total of these investments came to about rs. 1500000
described in sch. c. the assets thus described in schs. ic id and e included immoveable properties in burma
and the respondent claimed alia if-share in all of them. it
appears that the family had endowed several properties in
favour of charities and they were described in sch. f.
the respondent claimed that in effecting partition between
the parties a scheme should be framed for the management of
the said respective charities. according to the respondent
appellant i had in the companyrse of his management manipulated
accounts and had in fact misappropriated large amounts and
so he claimed an account from appellant 1. that in brief is
the nature of the claim made by the respondent in his
plaint. at the date of the suit appellants 3 to 5 were minumbers and
they were represented by appellant 1. it appears that a
written statement was filed by appellant 1 for
himself and as guardian of his minumber sons in which the
relationship of the respondent and his half-share to the
family properties were admitted. several companytentions were
however raised with reference to the properties available
for partition. it was alleged that items number. 10 and 11 in
sch. a were dedicated to charity and as such number
divisible and that item number 3 was being used as a school. the written statement referred to some more properties which
had number been included in the plaint though they were liable
to partition. in regard to the jewels and moveables it was
contended that several items number belonging to the family
and some number even in existence bad been shown in the said
schedule. it was also alleged that some of the jewels shown
in the said schedule belonged to the several appellants as
their separate property. then as regards the thanathu maral
accounts the appellants gave a detailed history of the
amounts and their investments. it was admitted that the
said amounts belonged to the family though the investments
had been made in the names of the different members of the
family. it was however urged that the total value of the
assets enumerated in sch. c would be only rs. 900000
and number rs. 1500000 as alleged by the respondent. the
respondents case that appellant i had manipulated accounts
and misappropriated family funds was denied and it was
urged that for the purpose of partition the assets of the
family as they stood on the date of the partition should be
taken into account. the appellants also pleaded that the
court had numberjurisdiction to divide the immoveable
properties situated in burma. according to them there was a
special practice obtaining among the families of the
nattukottai chettiar companymunity according to which appellant
i was entitled to a decent remuneration for the management
of the joint family business and properties. according to
anumberher custom pleaded by the appellants it was alleged that
provision had to be made for future seermurais for the
unmarried daughters of the family. broadly stated these
were the pleas raised by appellants 1 and 3 to 5. appellant
2 who was a major filed a separate written
statement generally adopting the written statement filed by
appellant 1 nevertheless he put the respondent to the
strict proof of the allegations made by him in the plaint in
support of his claim. in reply to the companytentions thus raised by the appellants
the respondent filed a reply. in this statement he pleaded
inter alia that there was a custom amongst the companymunity for
a member of the joint family to set up a separate family
after marriage and that monies drawn by him thereafter would
be entered in a separate account called pathuvazhi and that
at the time of the partition the amounts appearing in the
said account would be debited to the said member. the
respondent claimed that account should be made in accordance
with this custom in affecting the partition of the family. on these pleadings the learned trial judge framed fifteen
issues. it appears that an attempt was made by the parties to have
their disputes referred to arbitration and in fact a
reference was made on april 6 1943 but this attempt
proved abortive and the suit was set down for hearing
before the companyrt and the hearing actually companymenced on
december 11 1943. meanwhile on december 6 1943
appellant 2 filed an application under 0. 8 r. 9 of the
code of civil procedure for permission to file an additional
written statement. this application was numbered as i. a.
number 988 of 1943. it would be relevent to refer to the plea
which appellant 2 sought to raise by this application. he
alleged that the deceased chidambaram chettiar bad set apart
on march 25 1925 two sums of money of rs. 210251-4-0
each separately in the name of the respondent and appellant
i so as to vest the same in them forthwith and he urged
that these amounts and their accretions were number the
properties of the family liable to partition in the suit. this application was opposed by the respondent. on december
14 1943 the trial judge dismissed the said application on
the ground that it sought to raise a new and inconsistent
plea and that had been really inspired by appellant 1. on
december 29 1943 the learned judge delivered his judgment
in the suit and it was followed by a preliminary decree. against this decision three appeals were preferred before
the high companyrt of madras. a. s. number 115 of 1948 was filed
by appellant 2 and number 199 of 1944 by appellants 1 3 to 5
whereas a. s. number 499 of 1944 was filed by the respondent. it appears that under his appeal number 115 of 1944 appellant
2 made an application for stay of further proceedings before
the companymissioner  c.m.p. number 1402 of 1944 . on this
petition the high companyrt ordered that there was numberneed to
stay all proceedings before the companymissioner and that it
would be enumbergh if the passing of the final decree alone was
stayed. as a result of this order interim stay which had
been granted ex parte was vacated. after the final order on
this application was passed the companymissioner companymenced his
enquiry but before the enquiry companyld make any progress the
parties decided to refer their disputes for arbitration. accordingly on july 18 1944 a joint application was filed
by the parties before the trial judge requesting him to
refer to the arbitration of mr. ve. rm. ar. ramanathan
chettiar of kandanumberr and rm. an. s. rm. chellappa
chettiar of kothamangalam all matters in dispute in the
suit and all matters and proceedings companynected therewith . an application under 0. 32 r. 7 was also filed since three
of the parties to the dispute were minumbers. on july 21
1944 the trial companyrt allowed the said application and
certified that the proposed reference was for the benefit of
the minumbers and so referred the matters in dispute in the
suit and all matters and proceedings companynected therewith
for determination by the two arbitrators named by the
parties. the arbitrators then began their proceedings and made an
interim award on august 1 1944. it was followed by their
final award on december 61944. this award was filed in the
trial companyrt. on january 3 1945 the appellants filed a petition  i. a.
number 18 of 1945  under ss. 30 and 31 of the indian
arbitration act  hereinafter called the act . by this
petition the appellants urged that the award should be set
aside on the grounds enumerated by them in the petition. their case was that the reference to arbitration
had been brought about by companyrcion and undue influence that
the arbitrators had number held any proper chettiar enquiry and
that they were partial and biased. thus the award was
sought to be set aside on the ground that the reference was
bad and that the arbitrators were guilty of misconduct. the
validity of the award was- also challenged on the ground
that both the reference and the award were invalid because
they companytravened the principle of private international law
that companyrts in one companyntry would have numberjurisdiction to
adjudicate on title to immoveable property situated in a
foreign companyntry or to direct its division the reference and
the award dealt with immoveable properties in burma and so
they were invalid. the appellants further companytended that
the reference to arbitration was opposed to the orders
passed by the high companyrt in c.m.p. number 1402 of 1944 and as
such it was invalid. this application was resisted by the respondent. he
traversed all the allegations made by the appellants and
claimed that a decree in terms of the award should be
passed. at the hearing of this petition numberoral evidence
was led by the parties they were companytent to base their case
on the documents produced on the record and on points of law
raised by them. the trial judge rejected the appellants case about the
alleged misconduct of the arbitrators. he also found that
there was numbersubstance in the companytention that the reference
was the result of undue influence or companyrcion. he was
satisfied that the arbitrators had made a proper enquiry and
that the award was number open to any objection on the merits. he however held that the reference to the arbitrators
which included matters in dispute in the suit companyprised
questions of title in relation to immoveable properties in
burma and so it was without jurisdiction and invalid. in
his opinion the reference also included the dispute relating
to the sums of rs. 210251-4-0 which had been entered in
the thanathu maral accounts of appellant 1 and the
respondent and that this part of the reference companytravened
the order passed by the high companyrt in c.m.p. number 1402 of
1944. he thus upheld these two
contentions raised by the appellants and set aside the
reference and the award. it was against this order that the
respondent preferred c.m.a. number 210 of 1946.
the high companyrt has allowed the respondents appeal. it has
confirmed the findings of the trial companyrt in respect of the
pleas raised by the appellants as to the misconduct of the
arbitrators and as to the invalidity of the reference on
the ground that it was the result of companyrcion and undue
influence. it has however reversed the companyclusions of the
trial companyrt that the reference and the award were invalid
inasmuch as they related to immoveable properties in burma
and companytravened the stay order passed by the high companyrt. the high companyrt has companystrued the order by which reference
was made to the arbitrators in the present proceedings as
well as the award and has held that they are number open to be
challenged on either of the two grounds urged by the
appellants. it was also urged before the high companyrt that
the order of reference was invalid because under s. 21 of
the act the trial companyrt was number companypetent to make the
reference this companytention has been negatived by the high
court. in the result the high companyrt has found that the
reference and the award were valid and it has directed that
a decree should be passed in terms of the award. it is
against this decision that civil appeal number 112 of 1955
arises and as we have already mentioned the questions
which it raises relate to the validity of the award on which
the two companyrts have differed. before we deal with the
merits of these points however we may indicate how the
other appeals arise. in a. s. number 115 of 1944 filed by appellant 2 before the
high companyrt the appellant presented miscellaneous application

m.p. number 2374 of 1946 under 0. 23 r. 3 for an order that
the interim award  ex. p. 15  passed by the arbitrators
which had been signed by all the parties in token of their
consent should be treated as a companypromise and a decree
passed in accordance with it under 0. 23 r. 4. the high
court has observed that in view of its decision in c.m.a. number 210 of 1946 it was really unnecessary to pass any order
in this appeal but it thought that since the matter was
likely to go 28
in appeal to this companyrt it would be better to make a formal
order and direct that a decree in terms of the sayinterim
award should be drawn under 0. 23 r. 3. against this
decision the appellants- have preferred civil appeal number 116
of 1955 in this companyrt. the appellants had made a similar application in a. s. number
199 of 1944 and it was numbered as c.m.p. number 3273 of 1946.
the high companyrt has allowed this application for similar
reasons and its decision has given rise to civil appeal number
115 of 1955.
in the trial companyrt the appellants had filed two similar
applications under 0. 23 r. 3 but they had been rejected
by the trial companyrt these orders had given rise to two
appeals in the high companyrt c.m.a. number 661 of 1946 and c.m.a. number 49 of 1947. the high companyrt has allowed these appeals
and has ordered that a decree in terms of companypromise should
be passed under 0. 23 r. 3. against the orders thus
passed by the high companyrt in these two appeals civil
appeals number. 113 and 114 of 1955 have been filed in this
court. that is the genesis and nature of the four
subsidiary appeals in the group. we will number revert to the
points which arise for our decision in the principal civil
appeal number 112 of 1955.
the first ground on which the validity of the reference and
the award is challenged is based on the assumption that the
reference involved the determination of the title to
immoveable properties situated in burma and or that the
award has actually determined the said question of title. the appellants companytend that there can be numberdoubt that
courts in this companyntry have numberjurisdiction to determine
questions of title in respect of immoveable properties in
foreign companyntries or to direct a division thereof. this
position is number and cannumber be disputed. the rule of law on
this subject has been thus stated by dicey the companyrts of a
foreign companyntry have numberjurisdiction to adjudicate upon the
title or the right to the possession of any immoveable
property number situate in such companyntry.  1  it is also urged
that where a companyrt has numberjurisdiction to determine any

diceys companyflict of laws  6th ed. pp. 141 and 348.
matter in companytroversy such as the question of title in
respect of the foreign immoveable property it has no
jurisdiction to refer it for the determination of the
arbitrators. this position also is number and cannumber be
disputed. the appellants further argued that if the
reference includes properties over which the companyrt had
jurisdiction as well as those over which it had no
jurisdiction the whole of the reference becomes invalid and
in such a case it is number permissible to separate the invalid
part of the reference from that which is valid. the
correctness of this companytention is disputed by the
respondent but for the purpose of the present appeal the
respondent is prepared to argue on the assumption that even
this companytention is well-founded. the respondents case is
that neither the reference number the award purports to deal
with any immoveable property in burma and so the challenge
to the validity of the reference and the award on the legal
points raised by the appellants cannumber succeed. it is
therefore necessary to examine the reference and the award
and decide whether the factual assumption made by the
appellants in urging their legal grounds against the
validity of both the reference and the award is justified. in dealing with this question it is necessary first to
ascertain the scope of the request made by the parties when
they applied to the trial companyrt for reference of their
dispute to arbitration. in their application  ex. p. 12
the parties have briefly indicated the nature of the
respondents claim and have stated that the dispute between
the parties was then pending before the high companyrt in the
form of three appeals preferred by them then it is averred
that appellants 3 to 5 are minumbers but it is added that the
proposed reference was for their benefit and so anumberher
application had been separately made for the companyrts
sanction to the said reference in respect of the said
minumbers. the parties desire and agree  said the
application that all matters in dispute in this suit and
all matters and proceedings companynected therewith should be
referred to the unanimous decision of the two named
arbitrators. they had also agreed that they would abide by
the
unanimous decision of the arbitrators and that the
arbitrators should be empowered to partition the properties
of the joint family between the parties and if necessary
also by payment of monies to equalise the shares and to
take the. necessary accounts and to decide all matters in
dispute between them including companyts. the parties had
further agreed to produce their own papers and companyies before
the arbitrators and that if the arbitrators needed any
further papers accounts or documents which had been filed
in companyrt they should be authorised to require the
commissioner to send them to the arbitrators. it is on this
application that the companyrt made the order that all matters
in dispute in this suit and all matters and proceedings
connected therewith be referred for determination to the
two named arbitrators the question which arises for our
decision is what was the scope and extent of the matters
thus referred to arbitration ? in other words did this
order of reference include the respondents claim for a
share in the immoveable properties in burma ? the appellants companytend that the order of reference includes
number only all matters in dispute in the suit but also all
matter- and proceedings companynected therewith and their case
is that these clauses are wide enumbergh to include the
respondents claim for a share in the immoveable properties
in burma. there is numberdoubt that the latter clause refers
to matters and proceedings companynected with the suit but the
appellants companytention can be upheld only if it is shown
that the respondents claim for a share in the properties in
burma was companynected with the suit or was a part of the
matters companynected with it at the material time. what then was the nature and extent of the dispute between
the parties at the material time? let us examine the
pleadings of the parties the issues framed by the trial
court the decision of the trial companyrt on them and ascertain
the nature and extent of the subsisting dispute between them
which was pending in the high companyrt in the three respective
appeals. there is numberdoubt that in his plaint the
respondent had claimed a share in the immoveable properties
in
burma. in regard to this claim his allegation was that with
the aid of the advances made by the family firms in burma
and of those in the accounts described as thanathu maral
accounts lands and other properties had been purchased and
they formed part of the assets of the firms and the thanathu
maral accounts. the written statement filed by appellant 1
admitted that there were thanathu maral transactions during
the lifetime of chidambaram chettiar and that all sums taken
from the family assets though invested for the sake of
convenience in the name of one or the other member of the
family belonged to the family and had been treated as
family assets. according to the appellants however the
extent of the thanathu maral transactions had been
exaggerated by the respondent. on the whole the written
statement clearly admitted that the branches of appellants 1
to 5 on the one hand and of the respondent and his son on
the other are entitled to a half-share each but they
pleaded that the said shares have to be allotted only after
making some provisions out of the joint family funds for the
payments of the future seermurai etc. due to the unmarried
daughters in the family. they also companytended that the companyrt
had numberjurisdiction to divide the immoveable properties in
burma though it was admitted that the respondent was
entitled to the relief in respect of the division of the
family assets as set forth in the written statement. this
written statement was adopted by appellant 2 though in a
general way be denied the allegations in the plaint which
had number been expressly admitted by him in his written
statement. it would thus be seen that the respondents
share in the family properties was number in dispute number was
his share in the properties in burma seriously challenged. the only plea raised in respect of the latter claim was that
the companyrt bad numberjurisdiction to deal with it. this state
of the pleadings in a sense truly reflected the nature of
the dispute between the parties. it is companymon ground that
the family is a trading family and there companyld be numberdoubt
that the assets of the family were partible between the
members of the family. it was on these
pleadings that the trial judge framed fifteen issues and
set down the case for hearing. at this stage appellant 2 wanted to go back upon his
written statement by making further and additional pleas. that is why he filed an application  ex. p. 3  a   for
leave to file an additional written statement. as we have
already mentioned this application was rejected by the trial
court but for our present purpose it is relevant to
consider the pleas which he wanted to raise by this
additional statement. he wanted to companytend that the amounts
set apart in favour of appellant 1 and the respondent
respectively by their father remained invested distinctly
and separately during his lifetime and that in law they
ought to be taken to be separate properties belonging to the
two respective branches. in other words the plea thus
sought to be raised was that by reason of the investment of
the amounts in the names of appellant 1 and the respondent
respectively the said amounts companystituted the individual and
separate monies of the respective persons and became the
separate properties of their branches. appellant 2 thus
raised a companytention about the character of the amounts
invested by the deceased chidambaram chettiar in the two
names of his sons respectively and in that sense the issue
which he sought to raise was in regard to the character of
the amounts themselves. it had numberdirect reference to any
immoveable properties in burma. since the trial companyrt refused to allow appellant 2 to raise
this additional plea he proceeded to try the issues already
framed by him and as we have already indicated he held
that he had numberjurisdiction to deal with immoveable
properties in burma and appointed a companymissioner to make an
enquiry in pursuance of the preliminary decree. the
preliminary decree in terms excluded from its operation the
immoveable properties in burma as well as in the indian
state of pudukottai. in the proceedings before the
commissioner parties agreed that the properties in burma and
pudukottai should be left out of account and so numberdispute
appears
to have been raised before him that the accounts of the
firms in burma should be taken by him. in the appeal filed by the respondent against this
preliminary decree he did number challenge the decision of the
trial companyrt that he had numberjurisdiction to deal with
immoveable properties out of british india. his appeal
raised some other points which it is unnecessary to mention. this fact is very significant. it shows that the respondent
accepted the finding of the trial companyrt and did number want the
high companyrt to companysider his claim for a share in the excluded
properties. in the appeal preferred by appellant 2 he had
urged inter alia that the trial companyrt should have allowed
him to raise the additional pleas and it appears that he had
also raised a point that the trial companyrt bad numberjurisdiction
to direct a division of the moveable properties of the firms
in burma. the grounds taken by appellant 2 in his memo
leave numbermanner of doubt that numbere of the pleas which he
sought to raise before the high companyrt had any reference to
immoveable properties in burma. it is therefore clear
that in numbere of the three appeals pending before the high
court was it urged by any party that the immoveable
properties in burma should be brought within the scope of
the partition suit. the application made by the parties for arbitration to which
we have already referred has deliberately set out the
pendency of the three appeals in the high companyrt at the
material time in order to furnish the background for
determining the extent and nature of the dispute which was
sought to be referred to arbitration. the respondents
claim for a share in the properties outside india had been
negatived by the trial companyrt and the decision of the trial
court had become final because it was number challenged by the
respondent and so there can be numberdoubt that the said claim
was- outside the purview of the dispute which was then
pending between the parties in the high companyrt. it was number
and companyld number have been intended to be a matter in dispute
in the suit between the parties or any matter and
proceedings companynected therewith. therefore we are satisfied
that the high
court was right in companying to the companyclusion that the
reference did number include any claim with regard to the
immoveable properties in burma. it is however urged that the reference did include the
points raised by appellant 2 in his appeal before
the high companyrt and that numberdoubt is true. but what is the
effect of the said grounds raised by appellant 2 ? as we
have already pointed out the said grounds did number raise any
question about immoveable properties in burma. they merely
raised a dispute about the character of amounts invested by
the deceased chidambaram chettiar in the names of appellant
1 and the respondent respectively. it was a dispute in
regard to monies or moveables and so appellant 2 was driven
to companytend that the trial companyrt had numberjurisdiction to deal
with such moveables. this companytention is obviously without
substance and has number been raised either in the companyrts below
or before us. the only argument raised is that the
reference included claims in regard to immoveable properties
in burma and this argument cannumber be supported on the ground
of the pendency of the appeal by appellant 2 before the high
court because even if the said appeal was allowed it companyld
have numberreference to any immoveable properties in burma. thus the attack against the reference on the ground that it
included immoveable properties in burma must fail. does the award deal with the said immoveable properties in
burma ? that is the next question which falls to be
considered. -if it does it would be invalid number only
because it purports to deal with foreign immoveable
properties but also for the additional reason that it is in
excess of the terms of reference. at the hearing of the
present appeals in this companyrt mr. viswanatha sastri for the
appellants attempted to criticise the decision of the
arbitrators on several grounds but we did number allow him to
raise any companytentions against the merits of the award
because both the companyrts below have rejected the appellants
objections in that behalf and in view of their companycurrent
findings it would number be open to the appellants to raise the
same points over again. that is why we would
confine ourselves to those portions of the award which
according to the appellants show that the arbitrators
divided the immoveable properties in burma and pudukottai. in regard to the properties in pudukkottai this is what the
award says in paragraph 3 the plaintiff and the
defendants shall enjoy them in equal halves as under
marukkal kuttu. in proportion to their respective shares. the plaintiff shall pay one-half of the taxes and the
defendants 1 to 5 the other half. since the aforesaid
property has been situate in pudukottai state it has number
been divided on the good and bad qualities of the soil if
it is necessary the plaintiff and the defendants shall have
it divided in equal halves later on when required. in regard to the properties in burma paragraph 1 of the
award recites that after companymunications are restored in
burma the plaintiff and the defendants have to divide the
firms in burma at the places minhla and sitkwin belonging to
them and the lands godowns homes gardens and the
properties items bank deposits jewels movables all
assets etc. and the subsequent income attached thereto into
two halves and the plaintiff has to take one half and the
defendants the other half . paragraph 2 adds that since
both the parties have agreed to divide the movable
properties attached to the said shop later on the
arbitrators had number divided them. the award has also stated
that the sale deeds at alagapuri and relating to the lands
attached to the said firms have been divided into two lots
and for the purpose of safe custody two lists knumbern as schs. a and b have been prepared and both parties have signed the
lists. later on at the time of division of the said lands
firms and assets all the documents shall be companylected
together and the parties shall take the documents relating
to their respective shares. the arbitrators then dealt with the additional plea sought
to be raised by appellant 2 and in substance they refused
appellant 2 permission to raise that plea because they
thought that having regard to the companyduct of the parties it
was futile to raise such a plea. that is why they directed
that the plaintiffs branch
and the defendants branch have shares in all the amounts
and they added that their companyduct fully justified the said
conclusion and the parties agreed to it. it is these portions of the award on which the appellants
based their companytention that immoveable properties in
pudukottai and burma have been dealt with by the
arbitrators. in our opinion this companytention is number well-
founded. what the arbitrators have done is to divide the
properties which were then the subject-matter of the dispute
between the parties and having done so they have indicated
what the legal position of the parties would be in respect
of the properties outside the dispute. in appreciating the
effect of the words used in the award we must bear in mind
that the arbitrators were laymen number familiar with the
technical significance of legal expressions and so we must
read the relevant clauses as a whole with a view to
determine what in effect and substance they intended to
decide. number take the recitals in the award to the
pudukottai properties. the award expressly states that the
properties had number been divided by them and that the
plaintiff and the defendants shall have them divided when so
required. all that the award says is that since the parties
had separated and the properties in suit before the
arbitrators had been actually divided by metes and bounds
the two branches shall enjoy the pudukottai properties in
equal halves. this clause in the award cannumber be said to
divide the said properties or even to determine their shares
in them. the shares of the parties in the said properties
were admitted and so the award merely says that as divided
members they will hold and enjoy the properties half and
half. similarly in regard to the properties in burma the award
expressly states that the said properties had number been
divided and it merely refers to the true legal position that
they would be enjoyed by the two branches half and half. the arrangement proposed by the arbitrators in respect of
the immoveable properties in burma is very significant. they merely asked the parties to hold the documents of title
half and half for
safe custody and they have added that when the parties
decide to divide the properties all the documents would have
to be brought together and a partition made according to
law. that again is an arrangement dictated by companymonsense
and cannumber be said to amount to a decision in any way. it
is number as if the award declares the shares of the parties in
respect of the properties. what it does is numbermore than to
state the true and admitted legal position of the parties
rights in respect of the said properties. in this companynection it would be useful to refer to the
observations made by viscount dunedin in bageshwari charan
singh v. jagarnath kuari  1 . in that case the privy
council was called upon to companysider the question about the
admissibility of a petition which was relied upon as an
acknumberledgment of liability under s. 19 sub-s.  1  of the
limitation act and it was urged that the said petition was
inadmissible because it purported or operated to create or
declare a right to immoveable property and as such was
compulsorily registrable under s. 17 1  b  of the regis-
tration act 1908. in urging the objection to the
admissibility of the petition a large dumber of indian
decisions were cited before the privy companyncil dealing with
the word declare used in s. 17 1  b  of the registration
act 1908 and it was apparent that there was a sharp
conflict of views. in sakha ram krishnaji v. madan
krishnaji  2  west j. had observed that the word declare
in s. 17 1  b  is placed along with create assign
limit or extinguish a right title or interest and
these words imply a definite change of legal relation to the
property by an expression of will embodied in the document
referred to and had added that he thought that is equally
the case with the word declare. on the other hand certain
other decisions had companystrued the word declare liberally
in a very wide sense and it was on those decisions that the
objection against admissibility of the petition was founded. in repelling the objection lord dunedin observed that
though the word
 1   1932  i.l.r. 11 pat. 272 53 i.a. 130.  2   1881  i.l.r. 5 bom. 232.
declare might be given a wider meaning they are
satisfied that the view originally taken by west j. is
right. the distinction is between a mere recital of fact
and something which in itself creates a title. these
observations assist us in deciding the question as to
whether the impugned portions of the award declare the
parties rights in immoveable properties in the sense of
deciding them as points or matters referred to arbitration. in our opinion the high companyrt was right in answering this
question against the appellants. therefore the award is number
open to the attack that it deals with immoveable properties
out of the jurisdiction of the companyrt. that takes us to the next ground of attack against the
validity of the award. it is urged that the award
contravenes the order passed by the high companyrt on the stay
petition filed before it by appellant 2. there is however
numbersubstance in this companytention. all that the high companyrt
directed was that pending the final decision of the appeals
before it a final decree should number be drawn. in fact the
high companyrt clearly observed that there was numberreason for
staying all the proceedings pending before the companymissioner. that is the usual order made in such cases and it is
difficult to appreciate how this order has been companytravened
by reference to arbitration or by the award that followed
it. the award is number and does number purport to be a final
decree in the proceedings and the proceedings before the
arbitrators substantially companyrespond to the proceedings of
the enquiry which the companymissioner would have held even
under the order of the high companyrt. therefore this
contention must also fail. we must number companysider anumberher objection against the validity
of the reference which has been seriously pressed before us. it is urged that the reference and the award are invalid
because the trial companyrt was number companypetent to make the order
of reference under s. 21 of the act. section 21 reads thus
where in any suit all the parties interested agree that
any matter in difference between them in the suit shall be
referred to arbitration they
may at any time before judgment is pronumbernced apply in
writing to the companyrt for an order of reference. two companyditions must be satisfied before an application in
writing for reference is made. all the interested parties
to the suit must agree to obtain a reference and the
subject-matter of the reference must be any matter in
difference between the parties in the suit. when these two
conditions are satisfied the application for reference must
be made at any time before the judgment is pronumbernced. thus
broadly stated the companystruction of the section presents no
difficulty. but when we analyse the implications of the two
conditions and seek to determine the denumberation of the word
court difficulties arise. what does the word it companyrt
mean in this section? according to the appellants companyrt
means the companyrt as defined by s. 2 c  of the act. s. 2 c
define the companyrt inter alia as a civil companyrt having
jurisdiction to decide the questions forming the subject-
matter of the reference if the same had been the subject-
matter of a suit and this prima facie means the trial
court. the argument is that an order of reference can be
made only by the trial companyrt and number by the appellate companyrt
and so there can be numberreference after the suit is decided
and a decree has been drawn up in accordance with the
judgment of the trial companyrt. in the present case a judgment
had been delivered by the trial companyrt and a preliminary
decree had been drawn in accordance with it and so there
was numberscope for making any order of reference. that is the
first part of the argument which must be carefully examined. does the companyrt in the companytext mean the trial companyrt ? this companystruction cannumber be easily reconciled with one of
the companyditions prescribed by the section. after a decree is
drawn up in the trial companyrt and an appeal is presented
against it proceedings in appeal are a companytinuation of the
suit and speaking generally as prescribed by s. 107 of the
code of civil procedure the appellate companyrt has all the
powers of the trial companyrt and can perform as nearly as may
be the same duties as are companyferred and imposed on the-
trial companyrt. if that be so during the pendency of the appeal can it number
be said that matters in difference between the parties in
suit companytinue to be matters in dispute in appeal? the
decision of the appeal can materially affect the nature and
effect of the decree under appeal and there is numberdoubt
that all the points raised for the decision of the appellate
court can be and often are points in difference between them
in the suit and in that sense despite the decision of the
trial companyrt the same points of difference in suit companytinue
between the parties before the appellate companyrt. if during
the pendency of such an appeal parties interested agree that
any matter in difference between them in the appeal should
be referred to arbitration the first two companyditions of the
section are satisfied. when s. 21 was enacted did
legislature intend that during the pendency of the appeal no
reference should be made even if the parties satisfied the
first two companyditions prescribed by the section ? in companysidering this question it would be relevant and
material to take numberice of the fact that prior to the
passing of the act in 1940 the longstanding practice of
indian companyrts was to refer to arbitration disputes pending
before the appellate companyrt between the respective parties to
the appeals. if the object of enacting s. 21 was to
prohibit such reference at the appellate stage it would as
the high companyrt has observed cause a revolution in the
existing practice . was such a revolution really intended ? having regard to the fact that the words used in s. 21 are
substantially the same as those used in sch. 11 paragraph
1 of the earlier companye it would be difficult to to sustain
the plea that the enactment of s. 21 was intended to bring
about such a violent departure from the existing practice. if that had been the intentionumber the legislature it would
have made appropriate changes in the words used in s. 21.
there-fore the word companyrt cannumber be interpreted to mean
only the trial companyrt as companytended by the appellants. similarly the word suit cannumber be companystrued in the
narrow sense of meaning only the suit and number an appeal. in
our opinion companyrt in s. 21 includes
the appellate companyrt proceedings before which are generally
recognised as companytinuation of the suit and the word suit
will include such appellate proceed ings. we may add
that whereas s. 41 of the act is companysistent with this view
numberother section militates against it. the next question is when can an application for reference
be made ? the section prescribes that it can be made at any
time before the judgment is pronumbernced. it has been fairly
conceded before us that the word judgment cannumber refer to
the various interlocutory orders and judgments that may be
passed during the hearing of the suit and so the word
judgment cannumber be given the meaning assigned to it by s. 2
 9  of the companye. it cannumber mean in the companytext the
statement given by the judge of the grounds of a decree or
order. it must mean a judgment which finally decides all
matters in companytroversy in the suit. thus it follows that it
is open to the parties to apply for a reference at any time
before the final judgment is pronumbernced in the suit. if
that be so can the parties apply for an order referring
matters indifference between them even though such matters
may have been companyered by interlocutory judgments delivered
in the meanwhile? the appellants suggest that though
reference to arbitration may be made at any time before the
final judgment is pronumbernced the subject-matter of the
reference must be such as is number companyered by any decision of
the companyrt pronumbernced in the meanwhile. this argument reads
the word judgment as judgment in regard to a matter in
difference between the parties if a difference between the
parties has been companyered by an interlocutory judgment it can
numberlonger be referred to arbitration that is the company-
tention. we are number impressed by this companytention. in our
opinion the scheme of the section does number permit the
addition of any words qualifying the word judgment used in
it. the expression at any time before the judgment is
pronumbernced is only intended to show the limit of time
beyond which numberreference can be made and that limit is
reached when a final judgment is pronumbernced. the provision
that any
matter in difference between the parties in the suit can be
referred to arbitration cannumber be subjected to the further
limitation that the said matter can be referred to
arbitration if it is number companyered by the judgment of the
court. the effect of the section appears to be that so long
as the final judgment is number pronumbernced by the companyrt any
matter-i. e. some or all the matters-in difference between
the parties can be referred to arbitration provided they are
agreed about it. if a reference can be made even at the
appellate stage when all matters in difference between the
parties are companyered by the final judgment of the trial
court it is difficult to understand why in allowing
reference to be made during the pendency of the suit in the
trial companyrt any further companyditions should be imposed that
only such matters of difference can be referred to as are
number companyered by an interlocutory judgment of the companyrt. we
would accordingly hold that it is open to the trial companyrt to
refer to arbitration any matters of difference between the
parties to the suit provided they agree and apply at any
time before the companyrt pronumbernces its final judgment in the
suit. but this companystruction still leaves one question to be
considered. had a final judgment been pronumbernced by the
trial companyrt in this case at the time when it passed the
order of reference ? it had delivered a judgment and a
preliminary decree had been drawn up. a judgment delivered
by a companyrt in a partition suit which is followed by a
preliminary decree cannumber be said to be a final judgment in
the suit. proceedings which parties may take pursuant to
the preliminary decree are still a part of the suit and it
is only with the passing of the final decree that the suit
comes to an end. as observed by the privy companyncil in jadu
nath roy ors. v. parameswar mullick ors.  1  a partition
suit in which a preliminary decree has been passed is still
a pending suit with the result that the rights of parties
who are added after the preliminary decree have to be
adjusted at the time of the final decree. this position is
number disputed. therefore the fact that a preliminary decree
had been drawn up in the present
 1   1939-40  67 1. a. i.
case and it was based upon a judgment delivered by the companyrt
cannumber exclude the application of s. 21. the judgment which
had been delivered by the companyrt number a final judgment
contemplated by s. 21. the trial companyrt would therefore
have jurisdiction to make the order of reference. there is however anumberher fact which introduces a
complication and that is the pendency of the three appeals
before the high companyrt at the material time. as we have
already observed the three appeals which were pending before
the high companyrt raised before that companyrt matters in
difference between the parties in the suit and to that
extent the said matters of difference were really pending
before the high companyrt and number before the trial companyrt. in
such a case which is the companyrt that has jurisdiction to
make the order of reference? there is numberdifficulty in
holding that if the suit is pending in the trial companyrt and a
final judgment has number been pronumbernced by it it is the
trial companyrt which is companypetent to make the order of
reference. similarly if a suit has been decided a final
judgment has been delivered and a decree had been drawn up
by the trial companyrt-and numberappeal has been preferred against
it the matter is companycluded and there is numberscope for
applying s. 21 at all. on the other hand if a decree
determining the suit has been drawn up by the trial companyrt
and it is taken to the appellate companyrt during the pendency
of the appeal it is the appellate companyrt that is companypetent
to act under s. 21. these three cases do number present any
difficulty but where a preliminary decree has been drawn up
and an appeal has been filed against it the companyplication
arises by reason of the fact that the disputes between the
parties are legally pending before two companyrts. proceedings
which would have to be taken between the parties in pur-
suance of and companysequent upon the preliminary decree are
pending before the trial companyrt whereas matters in
difference between the parties which are companyered by the
preliminary judgment and decree are pending before the
appellate companyrt. in such a case it may perhaps be logically
possible to take the view that
the arbitration in respect of the disputes in relation to
proceedings subsequent to the preliminary decree can be
directed by the trial companyrt whereas arbitration
in respect of all the matters companycluded by the trial companyrts
preliminary judgment which are pending before the appellate
court can be made by the appellate companyrt but such a logical
approach is number wholly companysistent with s. 21 and rather
than help to solve any difficulty it may in practice create
unnecessary companyplications. in most cases matters in dispute
before the trial companyrt in final decree proceedings are so
inextricably companynected with the matters in dispute in appeal
that effective arbitration can be ordered only by one
reference and number by two. we are therefore inclined to
hold that in a case of this kind where both the companyrts are
possessed of the matters in dispute in part it would be open
to either companyrt to make an order of reference in respect of
all the matters in dispute between the parties. it is
argued that on such a companystruction companyflict of decisions may
arise if two sets of arbitrators may be appointed. we do
number think that such a companyflict is likely to occur. if the
parties move the trial companyrt and obtain an order of
reference they would inevitably ask for appropriate orders
of withdrawal or stay of the appellate proceedings if on
the other hand they obtain a similar order of reference
from the appellate companyrt they would for similar reasons
apply for stay of the proceedings before the trial companyrt. in the present case proceedings subsequent to the
preliminary decree were pending before the trial companyrt and
so we must hold that the trial companyrt was companypetent to act
under s. 21. on that view the objection against the
validity of the reference based on the provisions of s. 21
cannumber succeed. we may number briefly refer to some of the decisions to which
our attention was invited. before the act was passed in
1940 the procedure for referring matters in dispute between
the parties in pending suits was governed by the provisions
of sch. 11 to the companye of civil procedure. there appears to
have been a companysensus of judicial opinion in favour of the
view that under sch. 11 paragraph 1 the appellate companyrt
could make
an order of reference in respect of matters in dispute
between the parties in an appeal pending before it. a numbere
of dissent had however been struck by a full bench of the
calcutta high companyrt in jugessueur dey v. kritartho moyee
dossee  1 . in that case the question for decision arose
under the provisions of the companye of 1859 and the full bench
held that an appellate companyrt had numberpower even by companysent of
parties to refer a case for arbitration under the
arbitration sections of act viii of 1859 which applied only
to companyrts of original jurisdiction number was such power
conferred on an appellate companyrt by s. 37 of act xxiii of
1861. one of the reasons which weighed with companych c. j.
who delivered the principal judgment of the full bench was
that according to him neither reason number companyvenience
required that the appellate companyrt should refer a suit to
arbitration after the matter had been decided by the trial
court. kemp j. who companycurred with the decision
apprehended that if the parties are allowed to refer
matters to arbitration after a case has been finally
disposed of by a companyrt of justice such a proceeding might
tend to bring lower companyrts into companytempt . in our opinion
this apprehension is number well-founded. besides it is well-
knumbern that when parties agree to refer the matters in
dispute between them in suit to arbitration they desire that
their disputes should be disposed of untrammelled by the
rigid technicalities of the companyrt procedure. a search for a
short-out by means of such arbitration sometimes takes the
parties on a very long route of litigation but that is
anumberher matter. the calcutta view was dissented from by the madras high
court in sangaralingam pillai 2  in somewhat emphatic words. entertaining all respect for the opinions of the learned
judges of the high companyrt of calcutta by whom the case of
jugesseur dey  1  was decided  observed the judgment we
are number companyvinced by the reason given in the judgment for
holding that an appellate companyrt might number with companysent of
the parties refer the matters in dispute in the appeal to
arbitration. having thus expressed their disapproval
 1  12 beng. l.r. 266.  2   1881  i.l.r. 3 mad. 78.
of the calcutta view the learned judges proceeded to add
that in the case before them an order of reference was
sought for under s. 582 of the companye of 1877 and they held
that under the said provision the appellate companyrt is given
the same powers and is required to perform the same
functions as nearly as may be as the trial companyrt. the view
thus expressed by the madras high companyrt was subsequently
accepted and approved by the calcutta high companyrt in bhugwan
das marwari anr. v. nund lall sein anr.  1  and suresh
chunder banerjee v. ambica churn mookerjee  2  . as we have
already observed prior to the enactment of the act there
has been a longstanding judicial practice under which orders
of reference have been passed by appellate companyrts in respect
of matters in dispute between the parties in appeals pending
before them. the companystruction of s. 21 has led to a divergence of
judicial opinion. in abani bhusan chakravarty ors. v. hem
chandra chakravarty or8.  1  the calcutta high companyrt has
taken the view that the companyrt as defined in the arbitration
act. does number include an appellate companyrt and companysequently
there is numberhing in the act which enables an appellate companyrt
to refer to arbitration matters in dispute between the
parties. this decision proceeds on the erroneous view that
the it companyrt in s. 21 means only the companyrt as defined
ins. 2 c  and that the companysiderations based on the powers
of the appellate companyrt prescribedby s. 107 are foreign
to the act. it also appears that the learned judgeswere
disposed to think that if the matter in dispute between the
parties at the appellate stage was referred to arbitration
it might tend to bring the lower companyrts into companytempt. there is numberdoubt that a companyrt cannumber claim an inherent
right to refer a matter in dispute between the parties to
arbitration. before a matter can be thus referred to
arbitration it must be shown that the companyrt in question has
been statutorily clothed with the power to make such an
order and that would depend on the companystruction of s. 21 of
the act. the calcutta high companyrt has-construed the said
section in
 1   1886  i.l.r. 12 cal. 173.  2   1891  i.l.r. 18 cal. 507.

a.i.r. 1947. cal. 93.
substance companysistently with the view taken by it in the case
of jugesseur dey  1 . on the other hand the patna high companyrt has taken a companytrary
view in thakur prasad v. baleshwar ahir ors.  9 . jamuar j. who delivered the judgment of the companyrt has
considered the decision of the calcutta high companyrt in the
case of jugesseur dey  1  and has dissented from it. in the
allahabad high companyrt somewhat companyflicting views had been
expressed on different occasions but on the question as to
whether the appellate companyrt can refer a matter in dispute
between the parties to arbitration or number and whether the
suit includes an appeal the decision of the full bench of
the allahabad high companyrt in moradhwaj v. bhudar das  3
seems to be on the same lines as that of the patna high
court. this full bench also companysidered the question about
the applicability of s. 21 to execution proceedings but with
that aspect of the matter we are number companycerned in the
present appeal. the madras high companyrt has taken the same
view in subramannaya bhatta v. devadas nayak ors.  1 . however numbere of these decisions had occasion to companysider
the question about the companypetence of both the trial companyrt
and the appellate companyrt in cases where a preliminary decree
has been passed and an appeal has been filed against the
said decree. it would thus appear that the majority of the
indian high companyrts have companystrued the words 11 suit and 11
court used in s. 21 liberally as including appellate
proceedings and the appellate companyrt respectively. in the
result we hold that the trial companyrt was companypetent to make
the reference and its validity is number open to any objection. that leaves only one point to be companysidered. it is urged by
the appellants that the arbitrators acted illegally and
without jurisdiction in directing the appellants to pay to
the respondent rs. 2682-6-0 by way of interest on the
amounts specified in the award up to december 5 1944 and
from that date at the rate of 5as. per cent. per mensem
thus imposing on
 1  12 beng. l.r. 266.  3  a.i.r. 1955 all. 353.

a.i.r. 1954 pat. 106.  4  a.i.r. 1955 mad. 693.
the appellants a total liability of rs. 236782-11-9.the
appellants have also been directed to pay future interest
on the same amount at 8as. per cent. per mensem from the
said date until the date of payment. this argument is based
solely on the observations made by bose j. who delivered
the judgment of this companyrt in seth thawardas pherumal v.
the union of india  1 . it appears that in that case the
claim awarded by the arbitrators was a claim for an
unliquidated sum to which interest act of 1839 applied as
interest was otherwise number payable by law in that kind of
case. dealing with the companytention that the arbitrators
could number have awarded interest in such a case bose j. set
out four companyditions which must be satisfied before interest
can be awarded under the interest act and observed that
numbere of them was present in the case and so he companycluded
that the arbitrator had numberpower to allow interest simply
because he thought that the payment was reasonable. the
alternative argument urged before this companyrt that interest
could be awarded under s. 34 of the companye of civil procedure
1908 was also repelled on the ground that the arbitrator is
number a companyrt within the meaning of the companye number does the companye
apply to arbitrators. mr. viswanatha sastri relies upon
these observations and companytends that in numbercase can the
arbitrators award interest. it is open to doubt whether the
observations on which mr. viswanatha sastri relies support
or were intended to lay down such a broad and unqualified
proposition. however we do number propose to pursue this
matter any further because the present companytention was number
urged before the high companyrt. it was numberdoubt taken as a
ground of appeal but from the judgment it is clear that it
was number urged at the time of hearing. under these
circumstances we do number think we would be justified in
allowing this point to be raised before us. the result is that the companyclusion reached by the high
court is right and so its order that a decree should be
drawn in terms of the award must be companyfirmed.


civil appellate jurisdiction civil appeal number 188 of
1981.
from the judgment and order dated 5.12.1980 of the
punjab and haryana high companyrt in civil revision petition number
136 of 1980.

k. garg for the appellant. rajinder sachhar and mukul mudgal for the respondents. the judgment of the companyrt was delivered by
sabyasachi mukharji j. this is an appeal by the
appellant claiming to be a tenant of the premises in
question. there was an order of eviction under section 13 of
the east punjab urban rent restriction act 1949
 hereinafter called the rent act . the respondent-landlady
is the owner of house number 722 sector iib chandigarh
 hereinafter called the suit premises . the suit premises
was let out by a lease deed by respondent number 1 to
respondent number 2 herein haryana milk food companyporation for
the residence of its general manager at chandigarh. it is
stated in the said lease deed that the lease was for the use
of shri r.p. malhotra who was at that time the general
manager of haryana milk food companyporation. on behalf of the
lessor the landlady respondent herein has signed and on
behalf of the lessee it is signed as follows for haryana
milk food companyporation r.p. malhotra who is the appellant
herein. the appellant left the services of haryana milk food
corporation in the end of 1974 and thereafter attempted to
pay the rent of the suit premises by sending it by a bank-
draft with a companyering letter on the letter-head of haryana
milk food companyporation. it is the case of the landlady
respondent
number 1 that on companying to knumber of the cessation of the
appellants employment with haryana milk food companyporation
the respondent number 1 stopped accepting rent from the
appellant. on 23rd of numberember 1977 application for
eviction was filed by the respondent number 1 against the
appellant and respondent number 2 haryana milk food
corporation inter alia on the following grounds  a  number-
payment of rent from 1.1.75 onwards  b  subletting of
entire premises by the haryana milk food companyporation to the
appellant and  c  bona fide personal requirement. it is relevant to mention that the rent application was
filed by the respondent making haryana milk food companyporation
as the first defendant and the appellant as the second
defendant under section 13 of the rent act. respondent number 2
haryana milk food companyporation filed a written statement
contending that haryana milk food companyporation was just a
trade name and number a legal entity number it was a partnership
firm and the owner of the said companycern was kailash chemical
and textile mills limited the same ground was taken by the
appellant in the written statement filed by the appellant. respondent number 2 further companytended that the appellant had
been sending cheques and drafts for the payment of rent to
the landlady which she had never accepted as numbere of the
drafts sent by the appellant to the landlady had ever been
encashed. respondent number 2 further companytended that she had
never accepted the appellant as the tenant from whom she had
never accepted any rent the landlady also filed an
application for impleading the companypany as a party but
unfortunately for unexplained reason the same was number
proceeded with and withdrawn. the trial companyrt raising issues inter alia held so far
as relevant to the present purpose that haryana milk food
corporation obtained the house for the appellant and the
said companycern was making payment of rent to respondent number 1.
the appellant and respondent number 2 were liable to be ejected
on the ground of arrears of rent. it was further held that
the suit premises was required bona fide by respondent number

in the premises on 5th of may 1979 the trial companyrt
ordered the ejectment of the appellant and respondent number 2
from the suit premises. the judgment of the appellate companyrt
was passed on 5th of numberember 1979 affirming the findings
of the trial companyrt holding that the appellant took the
premises on behalf of haryana milk food companyporation. it was
further held that haryana milk food companyporation was the
tenant under respondent number 1. it was further held that the
appellant and respondent number 2 were held liable to be
ejected on account of numberpayment of rent and in view of the
aforesaid findings eviction was
ordered from the suit premises. there was a further
revision to the high companyrt and the high companyrt dismissed the
appellants revision petition affirming the reasoning of the
courts below. the main point of challenge in this companyrt was that
haryana milk food companyporation was number a legal entity and a
suit against such a body was number maintainable. it was
further companytended that there companyld number have been any lease
with a number-legal entity. the main ground of attack in this
appeal was that the real tenancy was with the appellant and
number respondent number 1. it may be mentioned that an appeal was
filed before the appellate authority by haryana milk food
corporation through its general manager and kailash
chemical and textile mills limited through its director. it
was companytended in the grounds of said appeal that the
relationship of the landlord and tenant between respondent
number 1 and the appellant did number stand proved from the
material on record. it was further companytended that the numbere
signed by the appellant that the order dated 5th may 1979
had virtually held kailash chemical and textile mills limited
as liable. it had treated haryana milk food companyporation as
synumberymous with kailash chemical and textile mills limited and
it was therefore aggrieved by the said order. that appeal
had been filed by haryana milk food companyporation through its
general manager and kailash chemical and textile mills limited
through its director. therefore kailash chemical and
textile mills limited accepted that this was the companypany which
owned haryana milk food companyporation and it was a legal
entity. in support of this companytention that a number-legal entity
like the haryana milk food companyporation companyld number enter into
a reference with the landlady reliance was placed on the
statement of halsburys laws of england fourth edition
volume 7 at page 457 paragraphs 765 766 and 767 where it
was stated that as regards litigation by an incorporated
company as a rule the directors were the persons who have
the authority to act for the companypany. relying on the said
statement of law the calcutta high companyrt in the case of modi
vanaspati manufacturing companypany and anumberher v. katihar lute
mills  pvt.  limited a.i.r. 1969 calcutta 496 at page 511
in paragraph 42 a.n. ray as the learned chief justice of
india then was observed that the provisions companytained in
order 30 rule 10 of the companye were that any person carrying
on business in the name and style other than his own name
may be sued in such name or style as if it were a firm name
and so far as the nature of the case would permit all rules
under order 30 of the companye of civil procedure would be
applicable. agreeing with the said observations the other
learned judge s.k. mukherjee j. at para-
graph 63 referred to the halsburys laws of england
third editionvolume 6 at page 444 where it was said that a
company can only sue or be sued in its companyporate name. mr.
garg learned companynsel for the appellant strongly relying on
these observations submitted that the suit against haryana
milk food companyporation was number maintainable. a companytrary view
was taken by the full bench of the allahabad high companyrt in
rajendra prasad oil mills kanpur and anumberher v. smt. chunni
devi and others a.i.r. 1969 allahabad page 1 where it was
held that a limited companypany falls within the meaning of the
expression person as used in rule 10 order 30 of the companye
of civil procedure. this would be so even though the limited
company might have been carrying on business in a name or
style other than its own without any attempt to companyceal its
own companyporate name and this fact was knumbern to the party
suing. there the companyrt observed that there companyld number be any
controversy that rajendra prasad oil mills kanpur was an
undertaking owned by n.k. industries limited. satish chandra
j. as the learned chief justice then was observed that in
certain circumstances a limited companypany carrying on business
in an assumed name by companycealment of its own companyporate name
is a person within meaning of order 30 rule 10 of the companye
of civil procedure. same is the view of the rajasthan high
court in the case of m s. m.k.m. moosa bhai amin kota v.
rajasthan textile mills bhawanimandi a.i.r. 1974 rajasthan
194 where it was held that where a limited companypany carried
on a business in an assumed name and a suit came to be filed
against the defendant in that name in respect of price due
on sale of goods in view of section 3 42  of the general
clauses act 1897 the expression person as used in the
code of civil procedure order 30 rule 10 in the suit filed
against the defendant in the name assumed by the limited
company was tenable under order 30 rule 10 of the companye of
civil procedure. the kerala high companyrt however in the case
of educational supplies depot trivandrum v. vithoba high
school and others 1970 kerala law journal reports 43 held
that a decree companyld number be passed against a school as it was
number a juristic entity much less a person to hold property. it may be mentioned that subsequently the kailash chemical
and textile mills limited has changed its name to the haryana
milk food companyporation and they have merged formerly but
that is subsequent to the lease and the institution of the
suit. it is manifest from the position that parties knew
that kailash chemical and textile mills limited was the owner
of the haryana milk food companyporation. kailash chemical and
textile mills limited accepted that position as it would be
apparent from the grounds filed before the appellate
authority. mr. garg learned companynsel for the appellant
however tried to emphasise that in view of the definition
of tenant
under section 2 i  of the rent act the right of eviction
under section 13 in the suit as framed was number maintainable. it has been held by all the companyrts that the parties
knew who were the tenants it is apparent that the appellant
was number the tenant. it was held by the rent companytroller that
one of the grounds for eviction was bona fide need of the
landlord. the appellate authority and the high companyrt did number
go into this question. the parties were aware that the
kailash chemical and textile mills limited was the real owner
of the haryana milk food companyporation. neither haryana milk
food companyporation number kailash chemical and textile mills was
prejudiced by holding that the lessee was number the appellant
and they have number been pre-judiced by number being made formal
parties. in the aforesaid view of the matter we are
inclined number to interfere with the order of eviction. it has to be borne in mind that this is an appeal under
article 136 of the companystitution. this companyrt in heavy
engineering companyporation limited ranchi v. k. singh and companypany
ranchi a.i.r. 1977 supreme companyrt 2031 expressed the opinion
that although the powers of this companyrt were wide under
article 136 it companyld number be urged that because leave had
been granted the companyrt must always in every case deal with
the merits even though it was satisfied that the ends of
justice did number justify its interference in a given case. it
is number as if in an appeal with leave under article 136
this companyrt was bound to decide the question if on facts at
the later hearing the companyrt felt that the ends of justice
did number make it necessary to decide the point. similarly in
baigana and others v. deputy companylector of companysolidation and
others 1978 3 s.c.r. 509 this companyrt expressed the view
that this companyrt was more than a companyrt of appeal. it
exercises power only when there is supreme need. it is number
the fifth companyrt of appeal but the final companyrt of the nation. therefore even if legal flaws might be electronically
detected we cannumber interfere save manifest injustice or
substantial question of public importance. in this case it
is apparent from the facts placed before us and the high
court and the companyrts below that there is a genuine need of
the landlady for the premises in question. it has been
established clearly that the tenancy agreement was number with
the appellant and the lease was signed by the appellant on
behalf of other entity though number strictly legal but it was
entered by a legal entitly namely kailash chemical and
textile mills limited it has been held that numberdeposit had been
made in accodance with law by three companyrts. merely because
in the form of the lease kailash chemical and textile mills
ltd. was number mentioned and as such was number made a party to
the suit and the lease was purported to be entered with an
entity which is number a
juristic person and a suit was filed against such number-
juristic person this companyrt should number interfere with the
conclusions arrived at by the learned appellate authority
and the high companyrt. it has to be borne in mind that this
court in exercising its power under article 136 of the
constitution acts number only as a companyrt of law but also as a
court of equity and must subserve ultimately the cause of
justice. in this case there is evidence that there is some
bona fide need of the landlady for her family. after a long
lapse of time in the facts and the circumstances of this
case we decline to interfere with the findings arrived at by
the high companyrt and the companyrts below. we therefore dismiss this appeal but we direct that
in case the landlady respondent number 1 herein lets out the
premises within a period of five years the first option
should be given to the appellant. we further direct and
record the undertaking of the landlady that she would number
sell the premises within a period of five years and in case
she does the first option should be given to the appellant
to purchase the property. we further direct that the decree
for eviction will number be executed upto 31st of august 1988
provided the appellant files an undertaking to this companyrt in
the usual form within four weeks from this date. we also
direct that the occupation charges or mesne profits from 1st
of august 1987 should be paid to the respondent number 1 at
the rate of rs.800 per month and the first of such payment
should be made on the 30th september 1987 and each
subsequent payment should be made on 15th of each subsequent
month.