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2002 DIGILAW 117 (JK)

Haji Abdul Kabir Sumji v. Union Of India

2002-04-29

SYED BASHIR-UD-DIN

body2002
1. Petitioner firm was allotted contract No. CWC (P) 23/86-87. provision of an-cillaries for 30 Trs. Huts at Shershali. While work was being executed certain disputes arose between parties which were referred for arbitration. The arbitrator submitted award with record. On receipt of the award parties were directed to be served notice for objections. When the matter came up before court on 08-11-1991. court passed the following order:- "Nemo for the petitioner. Award has already been filed by the arbitrator. Parties have not filed objections to the award despite expiry of statutory period. The award is. therefore, made rule of the court and a decree in terms of the award shall follow." 2. Contractor-petitioner has moved the application U/s 151 andO. 47 R. I CPC. for setting aside the order for the reason that despite petitioner-contractor having filed the objections and application U/s 30 of the Arbitration Act for setting aside the award, within statutory period after he was served notice. Court has not considered same. The error has crept on record to say that parties have not filed objections to the award. Heard. 3. Perusal of record of main arbitration application No. 273/90 reveals that the award was made and signed on 26-07-1990. The award was sent to the court with record and same was received on 29-10-1990 in court. Notice was ordered to be issued to the parties. There is a office note that the counsel for Union of India informed the court that he is not taking any objection to the award while as the counsel for the contractor filed objections on O8-O8-1991. The objections styled as application U/s 30 of the Arbitration Act is on the record of A. A. No. 78/ 91 wherein the award is prayed to be set-aside. It appears that filing of the objections was not brought to the notice of the court and perhaps the reason for the court being mislead to record that the parties have not filed objection to the award when in fact the party M/s Haji Abdul Kabir Sumji had already filed objection in the petition seeking setting aside of the award. Obviously these objections have not been considered. Obviously these objections have not been considered. It is only after court sees no reason to remit award or any of the matter referred lo arbitration for reconsideration or to set aside the award, that the court is to proceed to pass judgment in terms of the award and upon judgment so pronounced, shall follow a decree. Making the award rule of the court (and in other words passing judgment and decree in terms of the award) without consideration of objections to the award is beyond parameters of law. This mistake and apparent error in the impugned/order appears to have arisen on record for the reason that the filing and availability of objections on record is not brought to the notice of the court. 4. The High Court as a court of record is obligated, as a superior court with plenary jurisdiction to correct any error apparent on face of the record. In review jurisdiction High Court is competent and under a duty to review its own judgment and to set aside the earlier order/recall the order, so long the judgment/order is vitiated. See Budhia Swain Vs. Gopinath Deb & Ors. (1999) 4 SCC 396.. In M.M. Thomas Vs. State of Kerala & Anr. Supreme Court observed:- "If such power of correcting its own record is denied to the High Court, when it notices the apparent errors, its consequences is that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record." 5. Power to rectify mistakes or correcting errors apparent on record is an inherent power available to all courts on the principle that no party can suffer due to mistake of the court and all that is intended by the court while passing the order and decree, for such order and decree has to properly reflect the record. To say otherwise is destructive to the principle of cause of justice. (See (2201) 4 SCC 181 and AIR 1969 J&K 8). 6. In the above view of the matter there is sufficient reason to order review of the impugned order in question and as a forecertiorari judgment and decree is also set aside. To say otherwise is destructive to the principle of cause of justice. (See (2201) 4 SCC 181 and AIR 1969 J&K 8). 6. In the above view of the matter there is sufficient reason to order review of the impugned order in question and as a forecertiorari judgment and decree is also set aside. The matter is thrown open for fresh hearing whether award merits or demerits to be made or not to be made a rule of the court. Order announced. Writ petition (OWP No. 1785/89) is disposed of vide order dated: 11-12-1998 on record.