Ashwani Kumar v. Banwari Lal — 1988 DIGILAW 778 (RAJ)

N.C. SHARMA, J.—This is a revision by Ashwani Kumar against the order of the District Judge, Sri Ganganagar dated May 23, 1987 allowing certain amendments sought to be made by non petitoners Nos. 4 and 5 in their application for setting aside the award filed on February 19, 1985. 2. Facts leading to the filing of this revision petition are that the petitioner and non petitioners, Nos. 4 and 5 had entered into an agreement dated June 18, 1984 for settlement of dispute regarding properties specified in the agreement. Non petitioners Nos. 1 to 3 were appointed arbitrators who gave their award on August 25, 1984 The arbitrators moved an application u/s 14(2) of the Arbitration Act, 1940 (for short, hereinafter, the Act) before the Distt. Judge Sri Ganga-nagar alongwith the award and prayed that the award may be made the rule of the Court. Notices of the filing of the award were served by the Court upon the petition as well as non petitioners Nos. 4 and 5. Non petitioners Nos; 4 and 5 filed objections u/s 30 of the Act for setting aside the award. These objections were filed by them on February 19, 1985, Subsequent to that non petitioners Nos. 4 and 5 moved an application on September 19,1986 seeking certain amendments in their application for setting aside the award. Non petitioners Nos 4 and 5 wanted to add more objection for setting aside the award to the effect that in respect of the agricultural land covered by the award, a revenue suit was pending before the Assistant Collector, Sri Ganganagar and, therefore, without obtaining prior permission of that Court no award could have been passed in respect of the agricultural land and the award was liable to be set aside on this ground also. This amendment application was opposed on behalf of the petitioner on the ground that the same was belated. The District Judge, Ganganagar. how ever, allowed the amendment application filed by the non petitioners Nos. 4 and 5 on the ground that for finally deciding the controversies between the parties effectively, the amendment deserved to be allowed and moreover the same also did not alter the nature of the objections. It is against this order allowing the amendments sought by the non petitioners Nos. 4 and 5 that petitioner Ashwani Kumar has filed this revision before this Court. 3. Mr. It is against this order allowing the amendments sought by the non petitioners Nos. 4 and 5 that petitioner Ashwani Kumar has filed this revision before this Court. 3. Mr. Lekh Raj Mehta appearing for the petitioner urged that the Distt. Judge had no jurisdiction to allow the amendment application. It was argued that objections u/s 30 of the Act for setting aside the award can only be filed within thirty days of the service of notice of the award. According to the learned counsel each and every objections be raised in the application for setting aside the award within the statutory limitation period of thirty days. After the expiry of the said period neither any objection application can be filed nor any further objection can be added which were not taken within the limitation period of thirty days. It was pointed out that non petitioners Nos. 4 and 5 had filed their objections to the award on February 19, 1985 and had not raised any objection which they wanted to add by way of amendment by their application moved on September 19, 1986 much after the expiry of the limitation period of thirty days from the service of the notice of the award. 4. Mr. M.C. Bhandari, learned counsel appearing for the non petitioners Nos. 4 and 5 urged that objections had been filed by the non petitioners Nos. 4 and 5 within the limitation period of thirty days and non petitioners Nos. 4 and 5 could amend their objections in order to put forward all the objections to the award so that all of them may be decided to settle the rights of the parties. He also urged that the period of limitation of thirty days applies to the orginal objection petition and it does not preclude a party from making an amendment applications in order to amend his objections. 5. Mr. LekhRaj Mehta has relied before me upon the decision of their Lordships of the Supreme Court in Madan Lal Vs. Sunder Lal (1), that of the Calcutta High Court in Haji Ebrahim Kasam Cochiwalla v. Northern Indian Oil Industries Ltd. (2) and that of the Patna High Court in Prabhat Kumar Lals Vs. 5. Mr. LekhRaj Mehta has relied before me upon the decision of their Lordships of the Supreme Court in Madan Lal Vs. Sunder Lal (1), that of the Calcutta High Court in Haji Ebrahim Kasam Cochiwalla v. Northern Indian Oil Industries Ltd. (2) and that of the Patna High Court in Prabhat Kumar Lals Vs. Jagdish Chandra Narang (3) to contend that no application to set aside an award can be considered by the Court, unless the objections for setting aside of the award are made within the period of limitation of 30 days which is provided as the limitation period by Art. 119(b) of the Limitation Act of 1963 which corresponds to Art. 1.58 of the Limitation Act of 1908 and that any ground subsequently added must be treated as a new application and such subsequent ground, if raised the period of limitation of 30 days provided by Art. 119(b) of the Limitation Act of 1963 would be barred by time. It was also argued that the District Judge Sri Ganganagar should not have allowed the amendment and permitted non petitioners No. 4 and 5 to raise a new ground forgetting aside the award after the period of limitation as a right had accrued to the petitioner by lapse of time. As against this Mr. M.C. Bhandari on behalf of non petitioners Nos. 4 and 5 relied upon the decision of the Patna High Court in Union of India Vs. Binod Behari Singh (4) and he contended that it is not a case where non petitioners Nos. 4 and 5 had raised a new ground by any supplementary objections or during the course of arguments. On the other hand, it is a case where non petitioners Nos. 4 and 5 had applied for amendment of their objection petition which was admittedly filed within limitation and the amendment petition was rightly allowed by the court for the purpose of determining the real ques-tion in controversy between the parties. 6. It goes without saying that their Lordships of the Supreme Court in Madan Lals case (1) clearly laid down that it is clear from the scheme of the Act that if a party wants an award to be set aside on any of the grounds mention in sec. 6. It goes without saying that their Lordships of the Supreme Court in Madan Lals case (1) clearly laid down that it is clear from the scheme of the Act that if a party wants an award to be set aside on any of the grounds mention in sec. 30 it must apply within 30 days of the date of service of notice by filing of the award as had been provided in Art. 158 of the Limitation Act of 1908. If no such application was made, the award could not be set aside on any of the grounds specified in section 30 of the Act. There can be no doubt on the scheme of the Act that any objection even in the nature of a written statement which falls under section 30 cannot be considered by the Court unless such an objection is made within the period of limitation of 30 days, though if such an objection is made within limitation that objection may in appropriate cases be treated as an application for setting aside the award. Facts in Madanlals case were that the appellant had filed an objection in the nature of a written statement. By this objection he attacked the validity of the award on various grounds. But the objection did not contain any prayer at the end nor did not it indicate what relief the appellant desired thought, there were as many as 43 paragraphs therein. Their Lordships observed that where an objection, is in that case, raised grounds which fell squarely within section 30 of the Act, that objection cannot be heard by that Court and cannot be treated as an application for setting aside the award unless it was made within the period of limitation. In Madanlals case (1) even the objection in the nature of the written statement Were filed within 30 days of service of the notice of filing of the award. The Supreme Court, therefore, upheld the order of the Courts below passing a decree in terms of the award. As already stated that in the present case, non petitioners Nos. 4 and 5 had filed their objections and had prayed for setting aside the award within the limitation period of 30 days. 7. The Supreme Court, therefore, upheld the order of the Courts below passing a decree in terms of the award. As already stated that in the present case, non petitioners Nos. 4 and 5 had filed their objections and had prayed for setting aside the award within the limitation period of 30 days. 7. In Haji Ebrahim Kasams case (2) the applicant Haji Ebrahim Kasam-had made a motion asking to set aside award dated July 22, 1949 and filed on August 20, 1949. During the course of arguments, counsel for the applicant had advanced a submission that the Arbitrator omitted to file necessary documents with the award That was a ground which was not taken at all in the petition to set aside the award and it was an attempt to add a new grounds. As the ground was not taken in the petition, counsel for the applicant filed an affidavit of Abdul Gaffar on December 21, 1949 and during the course of the hearing, on the basis of new affidavit applied to set aside the award on the ground stated therein. It was held that Art. 158 of the old Limitation Act provided that the application for setting aside the award must be made within 30 days from the date of notice of the filing of the award. On December 21, 1949 when the affidavit was affirmed stating the new ground in application made therein, that was treated as a new application and the same was held to be clearly barred by time. 8. In prabhat Kumar Lals case (supra) the Arbitrators made ah agreed award on July 18, 1965 and filed it before the Subordinate Judge on 18th July 1965. The plaintiff filed an objection to this award on 17th August, 1965 under section 30 of the Arbitration Act. A rejoinder was field on behalf of the defendants to the objections. On September 7, 1965 the plaintiff filed a supplementary objection with an affidavit. It was contended before the Division Benech of the Patna High Court on behalf of the appellant that supplementary objection filed on September 7, 1965 could not be entertained as the same was filed beyond the prescribed period of limitation and the two instances of misconduct in the proceedings were not mentioned in the objection which had been filed on August 17, 1965. which were within time. which were within time. It was also urged on behalf of the appellant that the supplementary objections were merely an amendment like that of pleadings and the same had been accepted by the court below. The Division Bench held that the grounds of misconduct which were not mentioned in the original objection of the appellant could not be enteretained even though they were specified in the supplementary objection. 9. As a matter of fact, in none of the cases relised on behalf of Mr. Lekh Raj Mehta, the question with regard to allowing the amendments in the original objection petition which was filed within time was involved. In the decisions relied upon by him what was only laid down was that objection to the award under section 30 of the Act should be filed within 30 days from the date of the service of the notice of the award and any subsequent objection either by way of written statement or supplementary objections cannot be allowed to taken if they are not filed* within the prescribed period of limitation. That has also been the view of this Court as would appear from a single Judge decision in Deve-ndra Singh Vs. Kalyan Singh (5). It was held by his Lordship M.L. Joshi, J., that after an award has been made, all grounds of objections to the award, including grounds of the non-existence or invalidity of the agreement or refres-ence and all other grounds and nullity must be taken in an application for setting aside the award and the no. ground not so that can be available after the time for making such application has expired. 10. The question regarding the allowing of amendment to application for setting aside award by including fresh ground of objections had directly arisen before the Patna High Court in Union of India Vs. Binod Behari Singh (4) and also in an earlier decision in Bhagwan Dan Singh Vs. Fakir Singh (6) Section 41 of the Arbitration Act inter alia provides that subject to the provisions of the Act and all Rules made thereunder, the provisions of the Code of Civil Procedure 1908 shall apply to all that proceeding before the Court and to of appeals, under the Act. It is clear from the provisions sec. Fakir Singh (6) Section 41 of the Arbitration Act inter alia provides that subject to the provisions of the Act and all Rules made thereunder, the provisions of the Code of Civil Procedure 1908 shall apply to all that proceeding before the Court and to of appeals, under the Act. It is clear from the provisions sec. 41 (a) of the Act that the provisions contained in the Code of Civil Procedure apply to proceedings before the Court under the Arbitration Act. of course this applicability is subject to the provisions of the Arbitration Act. Even by virtue of section 141 of the Code of Civil procedure the provisions of Order 6 Rule 17 C.P.C. will apply to application for setting aside an award. 11. In Kishandas Roop Chand Vs. Rachappa Vithaba{7), Batchelor J. enuciated the principles which apply to the cases of amendment of the following terms :- "All amendment ought to be allowed which satisfy the condition:— (a) of not working injustice on the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties..............................But I refrain from citing further authorities, as, in my opinion, they all laid down precisely the same doctrine. That doctrine as I understand it, is that amendment should be refused only where the other party cannot be placed in the same positioin as if the pleading had been orginally correct but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation the amendment must be refused to allow it would be to cause defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore shall remains the same, can the amendment be allowed without injustice to the other side or can it not? 12. In Charandas Vs. The ultimate test therefore shall remains the same, can the amendment be allowed without injustice to the other side or can it not? 12. In Charandas Vs. Ameer Khan (8) Lord Buckmaster, delivering the judgment of the Judicial Committee, observed "That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases, see for example Mohammed Zahur Ali Khan VS. Mt. Thakurani Rutta Kaur, (9) where such considerations by the special circumstances of the case, and the Lordships are not prepared to differ from the Judicial Commissioner in thinking that the present case is one. 13. In Harish Chandra Vs. Trilok Singh(lO) the amendment of the election petition was held to be unjustified on the ground that the amendment was sought for which would have the effect of substantially altering the case as laid down in the original election petition, and that could not be permissible long after the expiry of the period of limitation prescribed for filing election petition. Upon a review of authorities including the privy council decision in Mohammed Zabur Alis case (supra) their Lordships laid down two propositions that (1). Under section 83 (3) of the Representation of the people Act the Tribunal had power to allow particulars in respect of illegal or corrupt practies to be amended provided the election petition itself specified the grounds or charges, and this power extended to permit new instances to be given; and (2) the Tribunal has power under order 6 Rule 17 of the Code of Civil procedure to order amendment of a petition but that power cannot be exercised so as to permit new grounds of character to be raised or to so alter the character of the petition as to make it, in substance, a new petition. If a fresh petition on those allegations will then he barred. Upon the peculier circumstances of the particular case, their Lordships came to the conclusion that the amendment sought for after the expiry of period of limitation did not fall within the ambit of the two principles mentioned above. 14. In Laxman Vs. If a fresh petition on those allegations will then he barred. Upon the peculier circumstances of the particular case, their Lordships came to the conclusion that the amendment sought for after the expiry of period of limitation did not fall within the ambit of the two principles mentioned above. 14. In Laxman Vs. Nana (11) their Lordships of Supreme Court observed: "It is no doubt true that save in exceptional cases, leave to amend under O. 6 Rule 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time But this Rule can apply where either fresh allegations are added or fresh reliefs are sought by way of amendment. Where for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, the question of bar of limitation is not one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading." 15. It is unnecessary to further multiply the decision on the point. I am, therefore, of the view that although an application for amendment under Order 6 Rule 17 C.P.C. can be made seeking to amend the objections filed for setting aside the award but the allowing or refusing the amendment would rest on the well known principles enumerated in the above mentioned decisions of the Privy Council and of the Supreme Court. In the present case, the non petitioner Nos. 4 and 5 sought to add a new objection by way of amendment in their original objections filed on February 19, 1985. The amendment application was made mure than one and a half year, after the limitation period of 30 days and of the filing of the original application. The new ground sought to be added was that in respect of agricultural land covered by award a suit was pending before the Assistant Collector, Shri Ganganagar and, therefore, without obtaining prior permission of that court no award could have been passed in respect of the agricultural land and the award was liable to be set aside on this ground also. I am of the opinion that the amounts to adding a new ground and fresh allegation and, is to be raised by amending the original petition, it would take away from the petitioner a legal right which had accrued to him by lapse of time. Such a power would not as a rule, except in exceptional circumstances, be exercised be- cause its effect is to take way from a party a legal right which accrued to him by lapse of time. Consequently, I hold that the District Judge, Sri Ganganagar was wrong in allowing the amendments sought by non petitioners Nos. 4 and 5 for adding a newground for setting aside the award after a lapse of more than 1- 1/2 years of the expiry of the limitation period. 16. I, therefore, allow this revision petition, set aside the order of the District Judge, Sri Ganganagar, dated May 23, 1987 and dismiss the application under Order 6 Rule 17 C.P.C. filed by non petitioner Nos. 4 and 5 on September 19, 1986. In the circumstances of the case, I shall leave the parties to bear their own costs.