Research › Search › Judgment

Madhya Pradesh High Court · body

2000 DIGILAW 245 (MP)

LAKME LTD. v. PLETHIC PHARL LTD.

2000-03-07

J.G.CHITRE

body2000
ORDER Shri S. C. Bagdia, Sr. counsel instructed by Shri Pankaj Bagdia. Shri D. Chabda and Shri G. Chabda, counsel for the petitioner, Shri Y. I. Mehta with Shri H. Y. Mehta counsel for respondent No. 1. The service of notice of hearing of this revision petition has been dispensed with so far as other respondents are concerned as they are Arbitrators. This revision revolves around a subtle point which needs to be decided by this Court not for the purpose of solving the controversy between contesting litigants, but for the purpose of regulating a procedural course for guidance of subordinate Courts for dealing with such matters which may come before them in future. The cause started when the ball of thinking started rolling by the order passed by the 1st Addl. District Judge. Indore by his order dated, 18.9.1999. On that date the senior advocate appearing for petitioner Shri Bagdia, made a proposal that the trial Court should formulate the points for determination and thereafter may take a decision whether the parties should adduce oral evidence or evidences by way of affidavits. The said proposal was opposed by the counsel appearing for respondent No. 1 by making a submission that no such procedure has been prescribed in the provisions embodied in Arbitration and Conciliation Act, 1996 (hereinafter referred to as New Arbitration Act for convenience). Learned Judge seems to have rejected the prayer, suggestion or proposal to formulate the points for determination, however permitted the parties to adduce the evidence by way of affidavit. That order prompted the petitioner to file a revision petition before this Court for getting their grievance redressed and for getting the procedure laid down for dealing with such situation. At this juncture, it is necessary to point out that the counsel appearing for respondent No. 1 has attempted to bottleneck this petition on the point of admissibility by pointing out that the trial Court has not rejected the prayer made by the petitioners because no prayer was made by the petitioners by filing an application. It has been also submitted by the counsel appearing for respondent No. 1 that trial Court has in fact permitted the petitioner to adduce the evidence by way of affidavits; however, the petitioners did not file the affidavits but picked up the path of filing the revision petition. It has been also submitted by the counsel appearing for respondent No. 1 that trial Court has in fact permitted the petitioner to adduce the evidence by way of affidavits; however, the petitioners did not file the affidavits but picked up the path of filing the revision petition. At this juncture, it would be necessary to point out that the petitioners were given time to file the affidavit till 11.10.1999 and the revision petition has been filed on 12.10.1999. It impliedly means that the petitioner, while is a Public Limited Company, must have been thinking of putting a challenge to the said order by consulting its legal cell; thereafter the office of Shri S. C. Bagdia, its senior advocate which resulted in presentation of present revision petition on 12.10.1999. It is also pertinent to note at this juncture that there has been an order on 11.10.1999 which shows that no affidavits were presented before trial Court from both sides. "An objection was also raised in context of maintainability of the present revision petition by pointing out the provisions of Section 115 of CPC. It has been contended from the side of respondent No. 1 that there has been no cause on action for filing this revision petition and getting a verdict from this Court as no prayer made by the petitioner has been dismissed and there has been no denial of justice to him. It is worth to point out that the beginning sentence of Section 115 of CPC starts with three sentences : (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, 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, the High Court may make such order in the case as it thinks fit." Thus, in this revision petition, it has been brought to the notice of this Court that the subordinate Court has not exercised a jurisdiction vested in it and landed in error causing failure of justice. And because of that, this Court is entertaining this revision petition and hearing it finally at this stage for the purpose of making the stream of administration of justice non-impeded, dean in flow for rendering the administration of justice in its real spirit. Shri Bagdia pointed out provisions of Section 34 of New Arbitration Act which reads : "(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (2) An arbitral award may be set aside by the Court only if - (a) the party making the application furnishes proof that - (i) a party was under some incapacity; or (ii) the arbitration agreement is not valid under the law to which the parties have subjected its or failing any indication thereon under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an Arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or it contains decisions on matter beyond the scope of the submission to arbitration provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provisions of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that - (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India. (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33 from the date on which that request had been disposed of by the arbitral tribunal; provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months. It may entertain the application within a : further period of thirty days; but not thereafter. (4) On receipt of an application under sub-section (1) the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award." Shri Bagdia pointed out that Section 34 of New Act provides that recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). Thus, reading provisions of New Arbitration Act, Section 34, Shri Bagdia submitted that provisions of Section 34 made it necessary for the applicant to furnish 'proof', and that necessitates the adducing of evidence for the purpose of giving the proof. Shri Bagdia further pointed out that the proof can be adduced by following the provisions of Indian Evidence Act, 1872 embodies in Chapter IV. Shri Bagdia further pointed out that the proof can be adduced by following the provisions of Indian Evidence Act, 1872 embodies in Chapter IV. He pointed towards provisions of Section 59 of Evidence Act which provides that : "All facts, except the contents of documents, may be proved by oral evidence." Section 59 has a connection with Section 60 which provides : "Oral evidence must, in all cases whatever, be direct : that is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it : if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner, if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds : Provided that the opinions of exports expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be called as witness without an amount of delay or expense which the Court regards as unreasonable : Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection." After clarifying what oral evidence means and dealing with that aspect in Chapter IV of Evidence Act, it is provided in Chapter V, which deals with documentary evidence. It is pertinent to note that in Section 59 it has been made clear that all facts, except the contents of documents, may be proved by the oral evidence. Oral evidence is to be preferred. Again that point has been also dealt with in proviso (1) to Section 60 which also speaks that if expert is available for the purpose of giving evidence, he is expected to give evidence. Oral evidence is to be preferred. Again that point has been also dealt with in proviso (1) to Section 60 which also speaks that if expert is available for the purpose of giving evidence, he is expected to give evidence. And only when he is not available to give evidence on being dead or being not found or not possible to be brought in the Court for the purpose of giving evidence, his credence may be produced for the purpose of gathering his expert opinion. Shri Bagdia also pointed out provisions of Section 33 of Arbitration Act, 1940, which provides : "Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits : Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit." Therefore, oral evidence would be necessary to be adduced unless otherwise required for the purpose of providing facts as it has been expected vide provisions of Section 34 of New Arbitration Act. Order 4, CPC deals with settlement of issues and determination of suit on issues of law or on issues agreed upon. Prior to that, CPC deals with "Admissions" under Order 12 and these two orders, i.e. Order 12 and Order 14, have been separated by Order 13 which deals with production, impounding and return of document. Civil Procedure Code has been enacted for the purpose of laying down a systematic procedure for regulating the behaviour of litigants before the Court in legal proceeding. The systematic tackling of various stages has been ordered chronologically. After presentation of plaint and filing of written statement, the question arises for determination of issues which are in controversy. And therefore, the Court is obliged to settle the issues in controversy. The intention is very clear, to restrict the lengthy averments made by the litigants in plaints and in written statements. They cannot be permitted to speak in oral evidence equal to averment in plaint or written statement. And therefore, the Court is obliged to settle the issues in controversy. The intention is very clear, to restrict the lengthy averments made by the litigants in plaints and in written statements. They cannot be permitted to speak in oral evidence equal to averment in plaint or written statement. A reference has been made by Shri Y. I. Mehta in his submission towards elongated objections running into pages. It seems to be a keenly contested matter, therefore, the parties have submitted their says by running into pages. When that was so, what was wrong for senior advocate appearing for petitioner to make a suggestion to the Court for settling the issues only for, at least petitioners, restricting the quantum of proof which the petitioners should adduce before the Court. In fact, that proposal should have been accepted by the learned subordinate Judge. It is to be kept in mind by subordinate Judges that the system of settling the issues or points for determination, has to be followed because by limiting the focus on particular points, the length of plaint can be taken care of. If the parties are not required to shorten their statement and averments by limiting them to the settling of issues or settling of points for determination, the parties are likely to swing freely to unnecessary points and would be tempted to lead the evidence on these points. Therefore, as a matter of prudence which has been hardened into practice, the Courts should always limit their attention to spectrum by pointing out the points for determination or by settling the issue on controversy. That would help the Courts to advert focussed attention on the points which are rear, in controversy and to be adjudicated on. That would allow it to restrict the fighting litigants to have particular spectrum only. That is why the provisions of Civil Procedure Code and the Evidence Act have been put to frequent use and application. Then comes the question whether the parties or party should be permitted to adduce the evidence by way of the affidavits or by examining the witnesses in Court. When the parties are not contesting the suit or proceeding keenly and when the question to be adjudicated, is not having multiple angles face, the Court may opt for an easy way directing the parties to adduce evidence by way of affidavit. When the parties are not contesting the suit or proceeding keenly and when the question to be adjudicated, is not having multiple angles face, the Court may opt for an easy way directing the parties to adduce evidence by way of affidavit. But if the tussle is keen and parties are fighting daggers drawn, as a matter of prudence, the Court should examine the witnesses by directing the parties to adduce their evidence by examining them in the Court by way of oral evidence. That gives added advantage of examining such person in chief and, therefore, examining him in cross-examination. Needless to say that examining a witness in chief also is a skillful job. To elicit a particular information by way of examining a witness in examination-in-chief enables that party to pinpoint, such witness in giving oral testimony. Cross-examination is a powerful weapon in the hands of adversary. A witness who has been examined-in-chief, can be hammered, can be exposed on multiple facts by cross-examination. Apart from that, the most advantageous thing would be to enable the Judge to a note of demeanour of such witness. It has been stated in many judgments that a Court which has got advantage of observing the demeanour of witnesses is well equipped at the time of assessing truthfulness or otherwise of that witness. Therefore, as rule of prudence, oral evidence of such witness is to be preferred. Otherwise also, the party would be at liberty to cross-examine a witness who has sworn in an affidavit. If that option is opted by a party who wants to cross-examine a deponent, the Court would be also required to deal with him by calling him in the Court and permit him it be cross-examined. When that is so, to adopt suitable convenient and advantageous way would be to opt for oral examination of a witness in the Court and to subject him to examination-in-chief and cross-examination. In addition to that, affidavits are generally drafted by the lawyers and they suffer the infirmity of stereotype version. Does it make out the spirit of adducing oral evidence ? That would be definitely depriving the liberty of allowing the witness to stand in the Court atmosphere and to depose under the oath before the Court to say by answering the questions put to him in examination-in-chief and thereafter in cross-examination. Does it make out the spirit of adducing oral evidence ? That would be definitely depriving the liberty of allowing the witness to stand in the Court atmosphere and to depose under the oath before the Court to say by answering the questions put to him in examination-in-chief and thereafter in cross-examination. The trial Court has erred in not noting these points which were necessary to be noted for the purpose of correct exercise of jurisdiction which vested in it. And, therefore, this Court has been required to give elaborate guidelines with full discussion on the subject. Let this be the first and last matter coming before this Court for the purpose of such adjudication with such controversy between the parties. Needless to point out that by this order the subordinate Courts should not harbour any impression in the minds that they should permit the parties to adduce oral evidence to any length. It should not be more than necessary and it should not be less than what is necessary. The permission to adduce the oral evidence to optimum point only and it should never be permitted to be elongated, lengthy and more than the main matter. The parties should be permitted to adduce oral evidence on relevant points only which the trial Court should firstly determine by settling the point for determination. It should not be permitted to have the impression in the mind of the litigants that it is second inning of the arbitration proceedings. Thus, this petition is allowed in view of the discussion made above. It seems that the parties were interested more in academic tussle so far as this Court is concerned, and, therefore, no order as to the costs. The Registrar is hereby directed to place this order before the Hon'ble Chief Justice for circulating it amongst subordinate Judges so as to avoid possibility of avoiding repetition of such incidents and for curbing the litigants and flow of litigations in the High Court. Petition allowed.