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1966 DIGILAW 325 (KER)

SUBRAMONIA IYER v. STATE OF KERALA

1966-11-22

T.C.RAGHAVAN

body1966
Judgment :- 1. The Government Pleader, on behalf of the respondent (the State), takes a preliminary objection to the maintainability of this civil revision petition. He contends that under S.39(1)(v) of the Arbitration Act an appeal is provided against the order of the lower court; and that therefore, this Court need not exercise its revisional powers under S.115 of the Code of Civil Procedure. 2. Sri. T. N. Subramonia Iyer, the counsel of the petitioner, meets this objection in the following manner. He contends that under S.34 of the Act stay can be sought only before filing the written statement or taking any other steps in the proceedings; that stay has been granted in this case after taking such "other steps" in the proceedings by way of several adjournments; that such grant of stay is beyond the competence of the lower court under S.34 and hence without jurisdiction; and that thus the matter involves a question of jurisdiction under S.115 of the Code. The counsel argues further that the stay contemplated under S.39(1)(v) of the Act is only one granted under S.34; and that since in the present case stay has been granted after steps in the proceedings were taken by the respondent, it is without jurisdiction. 3. The question whether stay was sought before the written statement was filed or other steps in the proceedings were taken by the defendant is a question to be decided under S.34 before stay is granted or refused. If the court comes to the conclusion that stay was sought before steps were taken and it grants stay, the stay granted is under S.34: if, on the other hand, the court comes to the conclusion that stay was sought after steps in the proceedings were taken and thus refuses stay, the refusal of stay is also under S.34. Both the orders, namely, the order granting stay, and the order refusing stay, are amenable to appeal under S.39 (1) (v). The question whether stay is to be granted under S.34 or not is a question falling for decision under S.34; and if a wrong decision on that question is given, that order is also under the same section. Both the orders, namely, the order granting stay, and the order refusing stay, are amenable to appeal under S.39 (1) (v). The question whether stay is to be granted under S.34 or not is a question falling for decision under S.34; and if a wrong decision on that question is given, that order is also under the same section. Moreover, even if the present order falls beyond the scope of S.34, still, it must be an order passed under the Act; and even then the order will be appealable under S.39 (1) (v), because the order contemplated by that section is an order under the Act and need not necessarily be an order under S.34. Therefore, there is no force in this contention of Mr. Subramonia Iyer. 4. The counsel then draws my attention to two decisions, one by Chandra Reddy J. in Puppalla Ramulu v. Nagidi Appalaswami (AIR. 1957 And. Pra.1) and the other by a Division Bench of the Patna High Court in Yugal Kishore Sinha v. Nagendra Prasad Yaday (AIR. 1964 Pat. 542). The decision of Chandra Reddy J. says that even assuming an appeal is competent, the right of the High Court to exercise its revisional jurisdiction is not taken away to correct errors that come to its notice under S.115 of the Code. In the decision of the Patna High Court it is observed that even assuming that the stay granted was not under S.31, 32 and 34 but under the inherent powers of the court, still, if the ends of justice required final adjudication of all controversies raised by the parties, the High Court could interfere under S.115 of the Code. Lastly, Sri. Subramonia Iyer cites one decision of the Supreme Court and four decisions of this court, one of which being a Division Bench ruling. The Supreme Court in Major S. S. Khanna v. Brig. F. J. Dillon (AIR. Lastly, Sri. Subramonia Iyer cites one decision of the Supreme Court and four decisions of this court, one of which being a Division Bench ruling. The Supreme Court in Major S. S. Khanna v. Brig. F. J. Dillon (AIR. 1964 S. C. 497) has said: "If an appeal lies against the adjudication directly to the High Court, or to another court from the decision of which an appeal lies to the High Court, it has no power to exercise its revisional jurisdiction, but where the decision itself is not appealable to the High Court directly or indirectly, exercise of the revisional jurisdiction by the High Court would not be deemed excluded." The three decisions by single judges of this Court are Martha Nicholas v. Yesamma (1961 KLT. 927), Gopalakrishnan Nair v. Subhadra Amma (1961 KLT. 930) and Vasu v. Narayanan Nambooripad (1961 KLT. 946). In these decisions it has been held that if an appeal lay to a subordinate court and not to the High Court, the High Court's power of revision would not be excluded by the language of S.115 of the Code. The fourth decision, a Division Bench ruling of this Court, is in Narayanan Nambiar v. Ambu Kunhi (1964 KLT. 591), wherein the decision of the Supreme Court has been followed; and the Division Bench has observed that if an appeal lay directly or indirectly to the High Court, the revisional powers of the High Court are excluded. 5. Under S.39 of the Arbitration Act appeals are provided in six cases to the courts authorised by law to hear appeals from original decrees of the courts passing the orders. In this case the appeal lies to the District Court; and under S.39 (2) no second appeal is provided to this Court, so that this is a case where there is no direct or indirect appeal to this Court. To such a case the three single judge's decisions of this Court already referred to must apply, with the result that the revisional powers of this Court are not excluded by the provision for appeal to the District Court. 6. In the course of arguments it is suggested that the effect of the decision of the Division Bench of this Court might be to overrule the three single judge's decisions. 6. In the course of arguments it is suggested that the effect of the decision of the Division Bench of this Court might be to overrule the three single judge's decisions. T do not think there is any justification for this suggestion, because the Division Bench ruling has been given in a case where there was no appeal directly or indirectly to the High Court. In other words, the said ruling has been given in a case where there was a right of appeal to the lower appellate court and a right of second appeal to the High Court. In the rulings of the single judges the position is similar to the case before me, namely, there was a right of appeal to the lower appellate court but no right of second appeal to the High Court. In such a case, as held in those three rulings, the powers of revision of the High Court are not excluded. The maximum that can be said is that the said three decisions will be confined to cases where there is a right of appeal to a subordinate court but no right of second appeal to the High Court. The legal position is clear-that in a case where there is a right of appeal to a subordinate court but no right of second appeal, the revisional powers of the High Court even against the order of the first court are not excluded; and that in a case where there is a right of appeal to the lower appellate court and a right of second appeal to the High Court, the revisional powers of the High Court are excluded. 7. Considering the case in this light the revision before me cannot be said to be incompetent. I may straightaway point out that the High Court does not encourage such revisions, if there is an alternative remedy to a subordinate court. But, since there has already been considerable delay on the part of the respondent (the suit is more than two years old), I propose to exercise my revisional powers in this case. 8. Now I come to the merits of the case. Sri. Subramonia Iyer draws my attention to several decisions including the decision of the Supreme Court in The Printers (Mysore) Private Ltd. v. Pothen Joseph (AIR. 1960 SC. 8. Now I come to the merits of the case. Sri. Subramonia Iyer draws my attention to several decisions including the decision of the Supreme Court in The Printers (Mysore) Private Ltd. v. Pothen Joseph (AIR. 1960 SC. 1156) and the decision of this Court in The Malabar Wholesale Co-operative Stores Ltd. v. Union of India (1961 KLJ. 265). The Supreme Court says that if there has been a long delay in making an application for stay and the said delay may reasonably be attributed to the fact that the parties may have abandoned the arbitration agreement, the court may consider the delay as a relevant fact in deciding whether stay should be granted or not. The decision of this Court has considered the relevant decisions on the question and says that "other steps" in the proceedings include an application for adjournment, even oral, for filing a written statement, unless there are special circumstances like the non-receipt of the copy of the plaint, etc. S.34 of the Arbitration Act says that stay should be sought before the filing of a written statement or taking any other steps in the proceedings. It is this expression, "other steps" that has been interpreted to include an application, even oral, for adjournment for filing a written statement. In this case there were about ten adjournments extending over a period of over seven months, all for the purpose of filing written statement. Evidently, the respondent acquiesced in the proceedings or abandoned the arbitration agreement. In other words, these applications for adjournment are "other steps" coming within S.34 of the Act, which disentitle the respondent to obtain stay. 9. The result is the decision of the lower court staying the suit is erroneous. The stay is vacated; and the suit is directed to be tried and disposed of on merits. Since the petitioner has not chosen to exercise the right of appeal given to him under S.33 (1) (v), I direct him to pay the costs of the State, even though the civil revision petition is allowed. Allowed.