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1990 DIGILAW 969 (ALL)

Surendra Kumar Tyagi v. Virendra Kumar Tyagi

1990-10-25

K.P.SINGH, R.R.K.TRIVEDI

body1990
JUDGMENT K. P. Singh, J. 1. In the above-noted first appeal from order necessary facts are as below : Shri Sukhdev Sharma, advocate, arbitrarator, has filed an application for taking necessary action in respect of the award filed by him in the Court on 25-9-1989. The application moved by the arbitrator was registered as Original Suit No. 859 of 1989. Shri T. S Tyagi and Shri D. K. Tyagi have also filed a separate petition for making the award dated 1-9-1989 a rule of the Court and also for passing a decree in terms of the award. This application was registered as Misc. Case No. 186 of 1989. IN this misc. case, the appellant Dr. S K. Tyagi moved an application numbered as 8C for granting 30 days' time to file objection against the award. Annexure V attached with the counter affidavit of Sri Devendra Kumar Tyagi in the above noted appeal is the application moved by the respondents nos 3 and 4 for a prayer that the award dated 1-9-1989 filed by the arbitrator in the above-noted reference be made rule of the Court and a decree in terms of the award may kindly be passed. It is note-worthy that the award had not been filed in the above-noted reference (Misc. Petition No. 186 of 1989). Annexure VI to the counter affidavit is the photostat copy of the order sheet in Misc. Case No. 186 of 1989. It appears that the respondents nos. 3 and 4 had moved an application for making the award a rule of the court at the residence of the officer, who had invited objection on the arbitration award fixing 14-11-N89 for disposal On 15-11-1989 it appears that the prayer for time for filing objection was allowed by the officer concerned On 18-11-1989 it appears that an application numbered as 1OC was moved for fixing a nearer date. Objections were invited and the case was directed to be listed on for disposal of 1OC on 28-11-1989. On 28- 11-1989 1OC was allowed and 5-12-1989 was fixed for disposal of. It appears that due to strike and non availability of the presiding officer the case was adjourned on several dates. Thereafter on 4-1-1990 the Presiding officer passed an order as below :- "3-1-1990 was declared holiday. Put up on 9-1-1990 for hearing".. On 28- 11-1989 1OC was allowed and 5-12-1989 was fixed for disposal of. It appears that due to strike and non availability of the presiding officer the case was adjourned on several dates. Thereafter on 4-1-1990 the Presiding officer passed an order as below :- "3-1-1990 was declared holiday. Put up on 9-1-1990 for hearing".. There is a note on the order sheet by the counsel for the appellant in this appeal that due to shortage of time the appellant could not be informed, therefore, a prayer was made for fixing another date. On 9-1-1990 it appears that the counsel for the parties were heard in the Original Suit No. 859 of 1989 and the case was directed to be taken up on 12-1-1990. on 12-1-1990 the learned Civil Judge, Ghaziabad decided the Misc. Case No 186 of 1989 as well as the application filed by the arbitrator and numbered as O.s. No. 859 of 1989. The learned Civil Judge has made the award dated 1-9-1989 rule of the Court and directed the decree to be prepared in terms of the award. Aggrieved by the judgment of the Civil Judge dated 12 1-1990 the appellant has approached this Court through the above noted First Appeal From Order. 2. A preliminary objection has been raised on behalf of the contesting respondents that the above noted First Appeal From order is not maintainable. The learned counsel for the appellant has tried to contend that the above-noted appeal is maintainable in the facts and circumstances of the present case. It has been contended on behalf of the appellant that the appellant was not granted fair opportunity to file objection against the award, therefore, the impugned order in this case should be treated as refusing to set aside the award and the above-noted appeal should be held as maintainable. 3. According to the learned counsel for the contesting respondents when no objection against the award was filed by the appellant within time provided by law, therefore, no question of refusing to set aside the award arises in the present case. According to the learned counsel for the respondents if the appellant had filed objection within limitation and despite his objection the award had been made rule of the Court it could be contended that the prayer for setting aside the award his been refused. According to the learned counsel for the respondents if the appellant had filed objection within limitation and despite his objection the award had been made rule of the Court it could be contended that the prayer for setting aside the award his been refused. According to the learned counsel for the respondents when no objection has been filed, the contention of the learned counsel for the appellant that the impugned order should be treated as refusing to set aside the award cannot be sustained. In this connection our attention has been drawn to the ruling Nilkantha Sidramappa Ningashetti v. Kashinath Somanna Ningashetti, AIR 1962 SC 666 , of the aforesaid ruling reads as below :- "The second question is whether the order of the Civil Judge amounted to an order refusing to set aside the award and, therefore, appelable to the High Court. The High Court he'd that it was not such an order and we agree. When no party filed an objection praying for the setting aside of the award, no question of refusing to set it aside can arise and therefore no appeal was maintainable under Section 39 (1) (vi) of the Arbitration Act which allows an appeal against an order refusing to set aside an award." 4. In view of the facts stated above, it is clear that the appellant had failed to file an objection against the award filed in the Court, therefore, we are not prepared to accept the contention of the learned counsel for the appellant that the impugned order in the above-noted appeal should be treated as an order refusing to set aside the award. In our opinion, when the appellant had filed no objection against the award, the impugned order cannot be treated as refusing to set aside an awaid as suggested by the learned counsel for the appellant. IN our view, the above noted appeal is not maintainable. At the close of the hearing of the appeal, an application has been moved on behalf of the appellant to convert the appeal Into revision. An objection has been filed against the conversion of First Appeal From Order into a revision In the facts and circumstances of this case we think it proper to permit the appellant to convert this appeal into a revision. An objection has been filed against the conversion of First Appeal From Order into a revision In the facts and circumstances of this case we think it proper to permit the appellant to convert this appeal into a revision. We do not agree with the submission of the learned counsel for the respondents contained in the objection against the application for conversion of First Appeal From Order into revision that this Bench has no jurisdiction to convert the appeal into revision If the revision is not maintainable it would be open to the respondents to urge this point before the revisional court. We do not find any such ruling as mentioned in objection 'C' of the respondents relating to 1971 AWR 542. In order to do justice between the parties and to shorten the litigation between them it appears ominently just to us that the above noted First Appeal From Order should be permitted to be converted into revision. 5. However, to satisfy the counsel for the respondents we direct the application for conversion of appeal into revision and the objection to that application along with the record of this appeal to be placed before the learned Single Judge dealing with the revisions. It would be open to the learned Single Judge to deal with the claims of the parties strictly in accordance with the law without being influenced by any observation of ours in this judgment. 6. The case has been argued by the counsel for the parties before us on merit. It has been emphasised that the appellant had not filed objection against the award within time, therefore, the impugned judgment and decree are immune from any attack by the appellant. 6. The case has been argued by the counsel for the parties before us on merit. It has been emphasised that the appellant had not filed objection against the award within time, therefore, the impugned judgment and decree are immune from any attack by the appellant. We mention the ruling Patel Kantibhai Ambalal v. Shambhubhai Chhota bhai atel, AIR 1970 SC 1335 WHEREIN IT HAS BEEN EMPHASIZED THAT THE TRIAL COURT HAS A CONSIDERABLE MEASURE OF DISCRETION FOR CONDONING THE DELAY AND FOR ENTERTAINING THE OBJECTION EVEN FILED BEYOND TIME It is note-worthy that before the amendment of the Limitation Act in the year 1963 the time for extending the statutory period provided for setting aside award could not be extended but now that position has undergone a chenge It is essential to examine that the trail court had not passed correct order in Original Suit No 59 of 1989 as contempated by the provisions- of Section 14 (2) of the Arbitration Act and that the trial court while dealing with the application (8C) has also dealt with the Suit to 85 of 1989 without appreciating the previous orders passed by it as has been indicated in Annexure VI to the counter affidavit filed in the present case We refrain ourselves from dealing with the points urged by the learned counsel for the parties regarding notice contemplated by Section 14 (2) of the Arbitration Act and the various rulings on the point as we have held above that the F A.F O mentioned above is not maintainable For the foregoing discussions, we have arrived at the conclusion that the above noted F A.FO is not maintainable and we direct that the papers of this appeal be laid before the learned Single Judge dealing with revision petitions at an early date. There would be no order as to costs of this appeal.