LexIFTIKHAR AHMED AND OTHERS versus SYED MEHARBAN ALI AND OTHERS
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464
IFTIKHAR AHMED AND OTHERS
v,
SYED MEHARBAN ALI AND OTHERS
February 26, 197 4
[K. K. MATHEW AND A. ALAGJRISWAMI, JJ.]
· Pwctice~Res-judicata between co-plain!ifJ~~.der oJ f:ourt setti.ng . aside
6 ward and ,·emitting award for fresh arbrtratzon-lf can be questroned in
pr_oceedings arising from rJte ~cond a ward.
.
...
.
· The dispute between the a·~nants and lli.e i-e~p6ncfents, as. io _who were
the bhumidars of certain prol!erties, was ~ferred by the Consohdatton Officer
under the U.P. Consolidation of Holdings1·Att, 1953,o to the Civil Judge, who
_ referred it to an arbitrato~ appointed under. the A\!t. The arbitrator held that
the respondents had no . title ·as bhumidars, rely~ng upon a, .judgment of ~e
High Court, which, accordin,~t to the arbitrator oj)erated as r'es-ittdicata between
the parties. That judgment was delivered in a suit instituted by the appellant's
predecessor and the present respondents for a declaration that a
mottg11ge
decree in fl\vour of the :.defendant in that suit ·did not affect the .shl\[es ·of
the respondents in the J}roperties in dispute, and the High Court held that the
appellant's predecessor alo_ne was e11titled to the
properties,
accepting the
contention of the defendant in that suit that the respondents had no
title
whatsoever. ·
·
·
The Civil Jud&e held that the award was manifestly wrong because, that
judgment according. to him did not operate as res~judicata between the parties.
He therefore ~et aside the award and remitted the case to another arbitrator.
The second arbitrator held that the appellant and
respqndents
were
co·
bhumidars and determined the shares 'of the ]larties holding that the judgQ~ent
of the High Court did not operate as res· .judicata. .This award was confirmed
by the Civil Judge and the Hi_gh Qourt aareed with the Civil Judge.
Allowin~ the appeal to th~ Court,
HELD: ·(a)·~'Jf a judgment is to operate as
res judicata
between . co-
defendants it is necessary to-.establish (i) tqat Qlere was ;~ conflict of interest
between the co-defendants, (ii) that" ·it was necessary to ·decide the conflict in
order to give relief to the plaintiff, .. and (iii) ,fbat the Court actually decided the
question. There is no reason why_ a previous decision could not operate as
res judicata
between
c;o.plai~\iffs . also if these three cottditions are satisfied
mutatis mutand1's. [467 H; 4~ B-C]
·
.
.
. (b) In the judgment of the High Court which was relied upon as having.
operated as res judicata there was actual conflict of interest between the present
ap~ell.arit _on the o~e hand. and the pre~ent respon~ent on the other; they were the
pla.rnhffs m that smt, a~d 1t. was. necessary to. decide th;tt. conflict in order to give
relief to the. defendant m that su1t; and the H1gh Court decided that the properties
!Jelonged exclusively to the appellant's .Jl.redecessor. · The effect of th,at judgment
1s "that the present respondents failed to establish their ·contention that they had
title to the properties. [467 F-H]
(c) There was no finding by the arbitrator that by adverse possession the
res_pondents had acquired title to the property at any time. {468 F]
(d) The provisions of Arbitration Act·. apply to proceedings before an
arbitrator under the; U.P .. Cpnsolidation of Holdings Act. Therefore, if the
. iud~ent of the Hi~h Court operated .in law 'as res judicata it would be an
.-ettor of law apparent on ~e face of the''a'Watd."·if it says that the judgment
l~\fld'i!\bt'~li~e· as· :ref f«dicata. I mn:ee, the Award in the present case wa'
' liable td'be·~ftiide iu\trer s. 30 ·bf 'the 'Arbitration Act. [468 F-Hl
(e) Under s. 39 of the Arbitration Act no appeal lillll from an order remit-
ting an award .to an arbitrator under s. 16 of the Arbitration Act. Therefore,
A
B
c
D
E
F
G
H
A
B
c
D
11
G
II
IFTOOIAR AHMED V. S. M· ALI (Mathew, /.)
465
the appellant could not have challenged the order when the Civil Judge set •
aside the first award and remitted the case to the arbitrator. for passing a
fresh award. Hence. there is no· reason why the appellant .should be. precl\lded
from challenging the correctness of that order in this apJ)eal and gettina relief
on that basis.
[469 BJ
·
(f) Since, in the circumstances ?f the case it would be an empty -~Orinl!li~
to remit the case aRain to. the arbitrator the award of the first arbitrator •s
restored.
[469 C)
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