Gauhati High Court
Union Of India (Uoi) And Ors. vs Mullick Harbans Lal & Co. And Anr. on 8 October, 1991
Equivalent citations: AIR1992GAU103, AIR 1992 GAUHATI 103, (1992) 1 CURCC 710, (1993) 1 ARBILR 121, (1991) 2 GAU LR 424
JUDGMENT Homchaudhuri, J.
1. In this two revision petitions preliminary point needs to be decided as to whether against the appellate judgment passed in the appeal, as contemplated under Section 39 of the Arbitration Act, a revision lies to the High Court.
2. A single Bench of this Court presided by Hon'ble Phukan, J. by the judgment and order passed in the case of Union of India v. D.S. Narula & Co. (Civil Revision No. 33(H)/85, reported in 1991 GLJ 400), has held that Arbitration Act being a self-contained statute there is no scope of invoking the revisional jurisdiction against the order of the first appellate Court, inasmuch as, second appeal has been expressly barred under Section 39 of the Arbitration Act and there is no provision conferring revisional jurisdiction to the High Court in the said Act. Another single Bench presided by Hon'ble Sangma, J., however, by the judgment and order passed on 1-6-90 passed in these revision petitions has expressed a different view. Under the circumstances this question has been referred to a Division Bench.
3. We have heard learned counsel for the petitioners as well as the learned counsel for the opposite parties.
4. To appreciate the question whether from an appellate order passed in appeal, as contemplated under Section 39 of the Arbitration Act, a revision lies to the High Court or not, it is appropriate to have a look into the provisions of Sections 39 and 41 of the said Act.
"39. Appealable orders.-- (1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order:
An order--
(i) superseding an arbitration;
ii) on the award stated in the form of a special case;
(iii) modifying or correcting an award;
(iv) filing or refusing to file an arbitration agreement;
(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;
(vi) setting aside or refusing to set aside an award;
Provided that the provision of this section shall not apply to any order passed by a Small Cause Court.
(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.
41. Procedure and powers of Court.--Subject to the provisions of this Act and of rules made thereunder--
(a) The provisions of the Code of Civil Procedure, 1908 (5 of 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."
4A. Under the provision of Section 39 of the Arbitration Act the second appeal from the appellate judgment and order has been expressly barred. There is no provision in the Arbitration Act which put an embargo on the revisional jurisdiction of the High Court against an appellate order. However, there is no provision conferring the revisional jurisdiction on the High Court against the appellate order. Question arises, since Arbitration Act is a self-contained statute whether in the absence of any provision expressly conferring revisional jurisdiction against an appellate order, the High Court can exercise revisional jurisdiction.
5. Section 41 of the Act provides that provision of C. P.C. shall apply to all proceedings before the Court and to all appeals under the Act except where such application of C.P.C. has expressly been excluded by the Act or by any Rules framed by the High Court under Section 44 of the Act. The 'Court' has been defined under Section 2(c) of the Arbitration Act as follows:
"2(c). "Court" means a Civil Court having jurisdiction to decide the question forming the subject matter of the reference if the same had been the subject matter of a suit, but does not, except for the purpose of arbitration proceedings under Section 21 include a Small Cause Court;"
6. The proceedings before appellate Court under Section 39 of the Act are judicial proceedings and the Judges exercise power as a judicial officer. Section 115, C.P.C. confers revisional powers to the High Court in respect of a decision of the subordinate Court against which no appeal lies and if such subordinate Court appears:--
(a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.
7. As already observed under Section 41 of the Arbitration Act, subject to the provision of the Arbitration Act and the Rules framed thereunder, the provision of CPC applies to all proceedings of the Court in all appeals under the Act and there is no express bar to exercise of revisional jurisdiction under Section 115, CPC by the High Court. A Division Bench of the Lahore High Court in the case of Tirath Singh v. Isher Singh, reported in AIR 1948 Lahore 50, held that against the appellate order passed in appeal under Section 39 of the Act, revision under Section 115, CPC is competent. A Division Bench of the Allahabad High Court in the case of L. Charan Das v. L. Gur Saran Das, reported in AIR 1945 All 146 and a single Bench of Pepsu High Court in the case of Lal Chand v. Dev Raj, reported in AIR 1951 Pepsu 115, expressed similar view that against the appellate order passed in appeal as contemplated under Section 39 of the Act, revision petition to the High Court is competent.
8. Taking into consideration of the provisions of Section 39 and Section 41 of the Arbitration Act in respectful agreement with the view expressed by the Division Bench of the Lahore High Court and Allahabad High Court as well as a single Bench of Pepsu High Court in the aforesaid cases, we hold that against the appellate order passed in appeal, contemplated under Section 39 of the Arbitration Act, a revision petition in the High Court is competent. With respect we differ with the view expressed in the case of Union of India v. D. S. Narula and Co. (Civil Revision No. 33(H)/85) by a single Bench of this Court. The said decision in the case of Union of India v. D. S. Narula and Co. (Civil Revision No. 33(H)/85) is overruled.
9. The Civil Revision No. 5(SH)/58 and Civil Revision No. 74(SH)/89 are against the appellate order passed by the learned Additional Deputy Commissioner, East Khasi Hills, Shillong. Both in the Rules for Administration of Justice and Police in the Khasi and Jaintia Hills, 1937, framed under Section 6 of the Scheduled Districts Act, 1874, and the Khasi Siemships (Administration of Justice) Order, 1950, framed under the provisions of Extra Provincial Jurisdiction Act, 1947, there is express provision conferring revisional jurisdiction to the High Court against any appellate order passed by the Court of Deputy Commissioner or the Court of Additional Deputy Commissioner.
10. These two revision petitions are competent and be posted before appropriate bench for disposal thereof on merit.