Civil Appeal No. 23 - Q of 2017
Haji SHINKAI versus ABDUL SHAKOOR and others.
2024 S C M R 344
Specific Relief Act 1877.
-- Ss . 42 & 55 --- Suit for declaration and permanent injunction in respect of immoveable property --- Incompetent suit --- Relief --- Scope --- Whether , in an incompetent suit , relief could be moulded , and the plaintiff could be awarded that relief which he did not even pray , and in which he was not interested --- Held , that the High Court found the suit filed by the plaintiff to be incompetent , but taking into account the admission made by defendant in his written statement that he had only obtained a loan of Rs . 2,200,000 from the plaintiff , modified the decree of the Trial Court and held that the plaintiff was entitled to the recovery of the amount from defendant , subject to deposit of court fee within one month --- Plaintiff neither sought this relief in his plaint nor was it the subject matter of the relevant framed issue , which was to the effect " whether the plaintiff is entitled to the relief claimed for ? " --- So , it could not be granted , particularly when it was found that the suit was not maintainable --- Furthermore the plaintiff's counsel was asked whether the plaintiff , in compliance with the judgment of the High Court , had provided the Court fee within time , to which he replied in the negative and said that the plaintiff was not interested in the recovery of the amount --- In such a situation , the modification in relief made by the High Court was not justified ---
Arbitration Act 1940---
S . 32 --- Bar to suits contesting arbitration agreement or award --- Expression " effect of the award " employed in section 32 of the Arbitration Act, 1940 ---Connotation --- Said expression is wide enough to cover a suit for enforcement of an award.
Arbitration Act1940 --
Ss .31,32 & 33 ---
Suit for enforcing an award under section 32 of the Arbitration Act , 1940 --- Not maintainable --- Plaintiff claimed that the dispute regarding recovery of Rs.3,800,000 from the defendants was referred to arbitration , and as a result , an award was made declaring that the defendants , for the liquidation of their liability , would give their two acres of land to the plaintiff --- Plaintiff further claimed that though he was given possession of the land under the award , the mutation was not recorded in the revenue records --- Based on these facts , he wanted the Court to declare him to be the owner of the land --- In sum , it is clear that the plaintiff's suit was , for all intents and purposes , to enforce the award --- Defendants , on the other hand , denied the arbitration agreement and maintained that the award was invalid and inoperative --- Upon these pleadings , it is manifest that the instant suit raised the question as to the existence , effect or validity of the award and such a suit is expressly prohibited by section 32 of the Arbitration Act , 1940 --- If the plaintiff wanted to enforce the award , the proper procedure for him would have been first to get the award to be made a rule of the Court and then to enforce or execute the decree which might be passed on the basis of the award --- Plaintiff could not resort to the procedure of filing a separate suit in disregard of the special procedure provided in the Arbitration Act , 1940 --- During the trial , a Commission was issued to an Advocate to inspect the suit land and to submit a report as to whether the land mentioned in the award and the land stated in the plaint were the same --- On inspection , the Commission found the two lands to be different --- None of the parties challenged the report of the Local Commission --- In the context of the report of the Local Commission , the oral evidence adduced by the plaintiff regarding the handing over of the possession of the defendants ' land became highly doubtful --- Plaintiff should have produced a relevant revenue record or a revenue officer to establish that the defendants voluntarily acting upon the award had handed over the possession of their land to him , but he did not do so --
Civil Appeal No. 23 - Q of 2017
Haji SHINKAI versus ABDUL SHAKOOR and others.
2024 S C M R 344
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