GUJARAT WATER SUPPLY AND SEWERAGE BOARD v. PRAVINBHAI PATEL
2002-02-21
H.H.MEHTA
body2002
DigiLaw.ai
H. H. MEHTA, J. ( 1 ) THIS is a group of four Appeals From Order arising from a common order dated 29/09/1998 passed under Order 7 Rule 10, Civil Procedure Code, by learned 7th Joint Civil Judge (S. D.), Nadiad in four different suits viz. Special Civil Suit Nos. 321 of 1989, 322 of 1989, 323 of 1989 and 324 of 1989. . ( 2 ) AS the appellants and respondents are common in all the appeals and a common question of law is involved, these four appeals are disposed of, at the request of learned Advocates for both the parties by this common judgment. ( 3 ) THE appellant, being plaintiff, filed four different Special Civil Suits referred to in Para 1 hereinabove against one Pravinbhai H. Patel to recover different amounts as compensation on the ground that defendant failed to complete execution of contract work entrusted by plaintiff under the contract, as a result of tender filled-in and submitted by contractor Pravinbhai H. Patel which was ultimately accepted by the plaintiff. ( 4 ) DURING the pendency of aforesaid suits, original defendant Pravinbhai H. Patel died, as a result of which, his heirs and legal representatives were brought on record in each suit. ( 5 ) AS stated earlier, plaintiff filed aforesaid four suits to recover different amounts of compensation as listed in Para 2 of the impugned order Ex. 27 on the ground that as original contractor failed to complete the execution of contract work, the plaintiff got that incomplete contract work completed through a third agency and for getting such incomplete-contract work completed through the third party, the plaintiff had to pay excess amount to third party, and therefore, the plaintiff filed aforesaid four suits to recover compensation from the defendant. ( 6 ) DEFENDANT -Contractor appeared in aforesaid four suits and resisted the suits by filing written statements wherein he has denied stopping of contract work. He has further pleaded that relevant maps and outlines were supplied to him late by the plaintiff, and as such, prices have been increased. It is his case that defendant Contractor was already ready and willing to perform his duties but plaintiff Board failed to perform its duties on its part, and as such, the plaintiff Board is not entitled to any compensation as prayed for.
It is his case that defendant Contractor was already ready and willing to perform his duties but plaintiff Board failed to perform its duties on its part, and as such, the plaintiff Board is not entitled to any compensation as prayed for. ( 7 ) IT appears from record that the learned Judge of the trial Court framed following issue and decided to answer that issue as a Preliminary Issue: (1) Whether this Court has jurisdiction to try this suit in view of the provisions contained in the Gujarat Public Works Contracts Disputes Arbitration Provision Act, 1992 ?after hearing the learned Advocates for both the parties, the learned judge of the trial Court answered that issue in negative and came to a conclusion that in view of Sec. 13 (1) of the Gujarat Public Works Contracts Disputes Arbitration Act 1992, all the four suits ought to have been transferred to the Tribunal constituted under the aforesaid Act, and thereby, he passed an order Ex. 27 under Order 7 Rule 10, C. P. C. directing the office of his Court to return the plaint of each suit to the plaintiff for presentation to the proper Court, and accordingly, the learned Judge further intimated the plaintiff as per provisions of Order 7 Rule 10-A, C. P. C. ( 8 ) BEING aggrieved against and dissatisfied with the aforesaid order dated 29/09/1998 passed below Ex. 27 by which the learned Judge of the trial Court ordered to return the plaint of each suit to the plaintiff for presentation to the proper Court, the original plaintiff has preferred these present appeals. ( 9 ) BEFORE these appeals could be taken up for hearing, pursuant to the order of this Court dated 4th October, 2001, the Office has placed records of Civil Revision Application Nos. 1286 of 1996 and 1287 of 1996 along with these four appeals. ( 10 ) HEARD Mr. Mehul H. Rathod, learned Advocate for the appellant and Mr. D. V. Shah, learned Advocate for the respondents. Mr. Mehul Rathod has taken me through the impugned order and judgments rendered in Civil Revision Application Nos. 1286 of 1996 and 1287 of 1996 by this Court, the records of which had already been called for and produced with these appeals.
Mehul H. Rathod, learned Advocate for the appellant and Mr. D. V. Shah, learned Advocate for the respondents. Mr. Mehul Rathod has taken me through the impugned order and judgments rendered in Civil Revision Application Nos. 1286 of 1996 and 1287 of 1996 by this Court, the records of which had already been called for and produced with these appeals. ( 11 ) AT the outset, Shri Mehul H. Rathod brought to the notice of this Court, the following certain facts with relevant dates so as to enable this Court to decide the issue in its correct perspective: (1) 30-11-1979 As submitted by Mr. Rathod, there is no dispute with regard to fact that four different contracts for laying pipe-lines were entrusted by plaintiff to defendant and for that work orders for respective works were issued to the original defendant. (2) 06-12-1089 As submitted by Mr. Rathod, the respondent did not complete the work as per the contract and hence the appellant (original plaintiff) filed aforesaid four different suits bearing Special Civil Suit Nos. 321/89, 322/89, 323/89 and 324/89 in the Civil Court at Nadiad to recover the damages from the defendant. (3) In 1991 Gujarat Government promulgated the Gujarat Public Works Contracts Disputes Arbitration Tribunal Ordinance, 1991. (4) in 1992 The Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 (for short "act") was passed, replacing the aforesaid Ordinance. (5) 05-12-1991 As per Government Gazette, Volume XXXIII (Part V) dated 7th February, 1992, only Sec. 1 of the Gujarat Public Works Contracts Disputes Arbitration Act, 1992 came into force. As per the said Government Gazette, the remaining provisions of the Act would come into force on such date as the State Government may, by Notification in the Official Gazette, appoint. Thus only Sec. 1 of the aforesaid Act came into force in Gujarat State, and remaining provisions of the said Act did not come into force on 5/12/1991. (6) 01-01-1994 As per Notification dated 10th December, 1993 of Legal Department, Government of Gujarat, all the remaining provisions of the aforesaid Act came into force with effect from 1/1/1994 in the Gujarat State. (7) 29-09-1998 The learned Judge of the trial Court passed an order below Ex. 27 directing the Office of his Court to return the plaint of each suit to the plaintiff for presentation to the proper Court.
(7) 29-09-1998 The learned Judge of the trial Court passed an order below Ex. 27 directing the Office of his Court to return the plaint of each suit to the plaintiff for presentation to the proper Court. ( 12 ) SHRI Rathod has argued that if we scrutinize the impugned order, we find that the learned Judge of the trial Court, by placing reliance on Sec. 13 (1), of the Act came to a conclusion that the Civil Court has no jurisdiction to try the Civil Suits filed on 6/12/1989. He has argued that the provisions of the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 (for short "the Act of 1992 ") came into force with effect from 1/1/1994. Nothing is mentioned about the date as to from which date the effect of the provisions of the Act has been given. He has argued that in absence of clause for either "retrospective effect" or "prospective effect" in the Act, it should mean that effect of the provisions has been given prospectively and not retrospectively, and therefore, the learned Judge of the trial Court has seriously erred in coming to a conclusion that plaint be returned to the plaintiff for presentation to the proper Court in view of Secs. 13 (1), of the Act. He has argued that the learned Judge of the trial Court has not transferred the suits to the Tribunal constituted under the Act. He has simply returned the plaints of the suits to the plaintiff for presentation to the proper Court. He has argued that this is not a case in which the learned Judge of the trial Court has simply transferred the suits to the Tribunal. ( 13 ) HE has further argued that question of similar nature arose before this Court in Civil Revision Application No. 1286 of 1996. By referring the record and proceeding of Civil Revision Application No. 1286 of 1996, he has argued that a suit bearing Special Civil Suit No. 82 of 1989 was filed by the Contractor against the Government in Civil Court at Himatnagar in the year 1989. During the pendency of said suit, the defendant i. e. State Government submitted one application Ex. 54 taking objection regarding the jurisdiction of Civil Court in view of the provisions of the Act.
During the pendency of said suit, the defendant i. e. State Government submitted one application Ex. 54 taking objection regarding the jurisdiction of Civil Court in view of the provisions of the Act. It was contended for and on behalf of the defendant -State Government in that suit that in view of Sec. 8 of the Act, Civil Court has no jurisdiction and further that the Tribunal constituted under the Act has jurisdiction to try the suit. The defendant had requested in his application Ex. 54 to transfer the suit to the Tribunal. The learned Judge of the trial Court rejected that application Ex. 54 on the ground that the provisions of the Act will not be applicable to the facts of the suit filed in the year 1989. The learned Judge of the trial Court in his final order held that Sec. 8 of the Act is not applicable and Civil Court has got jurisdiction to entertain the suit. The defendant of that suit carried the said matter further by preferring Civil Revision Application No. 1286 of 1996 to this Court. ( 14 ) THIS Court by its judgment dated 4/4/1998 has held in Para 4 of order as follows:"the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 came into force with effect from 1. 1. 1994 as notified by the State of Gujarat. The Act of 1992 was enacted in order to provide for the constitution of the Tribunal to arbitrate in disputes arising from the works contracts to which the State Government or a public undertaking is a party and to provide for matters connected therewith. Thus the purpose as disclosed in the preamble, Section 8 provides that where any dispute arises between the parties to the works contracts, either party shall, irrespective of whether such contract contains an arbitration clause or not, refer, within one year from the date when the dispute has arisen after 1. 1. 1994. It is only the Tribunal under the Act of 1992 has the jurisdiction to adjudicate the disputes between the parties to works contract irrespective of the fact that whether such works contract contains arbitration clause or not. Section 21 provides that all the Arbitration Proceedings in relation to such disputes pending before an arbitrator, umpire, Court or authority shall stand transferred to the Tribunal.
Section 21 provides that all the Arbitration Proceedings in relation to such disputes pending before an arbitrator, umpire, Court or authority shall stand transferred to the Tribunal. Section 8 provides for adjudication of all disputes relating to works contract by the Arbitration Tribunal Act of 1992. Section 21 provides for transfer of all the Arbitration Proceedings pending as on 1. 1. 1994. Admittedly, no arbitration proceedings were pending on 1. 1. 1994 in the instant matters, as such provision of section 21 is not attracted. Thus I find no infirmity in the impugned order. "14. 1. Shri Rathod has argued that when this Court has specifically held that suits filed prior to 1/1/1994 cannot be transferred to the Tribunal constituted under the Act, Civil Court has jurisdiction to try such suits filed before 1/1/1994. ( 15 ) SHRI D. V. Shah, learned Advocate for the respondent has vehemently argued that in view of Sec. 13 of the Act, jurisdiction of Civil Court is ousted. He has argued that as per Section 9 of the Civil Procedure Code, Civil Court shall have jurisdiction to try all the suit of a civil nature except the suits of which their cognizance is either expressly or impliedly barred. He has argued that looking to Sec. 13 of the Act, jurisdiction of the Civil Court is ousted, and therefore, the learned Judge of the trial Court has rightly ordered to return the plaint to the plaintiff for presentation to the proper Court. He has put much stress on the words "to deal with or decide" used in Sec. 13 (1) of the Act. In support of his arguments, he has cited certain authorities which will be dealt with at appropriate stage. ( 16 ) IT may be noted that in aforesaid four suits, defendant Contractor appeared and took effective part in contesting the suits by filing written statements. It is not the case of the defendant that at his instance, particular issue was decided to be heard as a Preliminary Issue. From impugned order, it appears that the learned Judge of the trial Court suo motu framed following issue and decided to hear it as a Preliminary Issue: Whether this Court has jurisdiction to try the suit in view of provisions contained in the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act 1992 ?
From impugned order, it appears that the learned Judge of the trial Court suo motu framed following issue and decided to hear it as a Preliminary Issue: Whether this Court has jurisdiction to try the suit in view of provisions contained in the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act 1992 ? ( 17 ) HERE in this case, the learned Judge of the trial Court has, by passing order Ex. 27, directed the Office to return the plaint to the plaintiff for presentation to the proper Court. It is clear that the learned Judge of the trial Court has not transferred the whole suit to the Tribunal in view of the provisions of the Act. Looking to provisions of Order 7 C. P. C. , the Court has to examine the facts stated in the plaint as to whether on the date of filing of the suit, it had jurisdiction to try, decide and dispose of the suit in a normal course. After filing the suit, the suit proceeds further and ultimately, on filing of the written statement, if an attention of the Civil Court is drawn that on the date of filing of the suit, the Civil Court had no jurisdiction, then in that case, the Court has no other option but to return the plaint to the plaintiff for presentation to the proper Court, meaning thereby, he has to decide the point as to on the date of filing of the suit, that particular Civil Court had jurisdiction or not. If from the facts and circumstances stated in the plaint as well as the contentions taken by the defendant in the written statement if it is found that some other Civil Court has jurisdiction to try and decide the suit, then in that case, plaint can be returned. So the material date would be the date of filing of the suit. Admittedly, in this set of facts of the case, the suits were filed on 6/12/1989. On that day, there was no Act on the statute book. That Act came into force with effect from 1/1/1994, and therefore, the learned Judge of the trial Court has grossly erred in returning the plaints to the plaintiff for presentation to the proper Court.
Admittedly, in this set of facts of the case, the suits were filed on 6/12/1989. On that day, there was no Act on the statute book. That Act came into force with effect from 1/1/1994, and therefore, the learned Judge of the trial Court has grossly erred in returning the plaints to the plaintiff for presentation to the proper Court. ( 18 ) IF the learned Judge of the trial Court had transferred the suits to the Tribunal by applying provisions of the Act, then the position would be otherwise. ( 19 ) ADMITTEDLY, on 6/12/1989, the plaintiff filed suits and on that day, Civil Court had jurisdiction to try and decide the suits. As per the arguments of Shri D. V. Shah, the learned Advocate for the respondent, because of introduction of the provisions of the Act, the jurisdiction of the Civil Court has been ousted, and therefore, on and from 1/1/1994, in view of Sec. 13 (1) of the Act, the learned Judge of the trial Court has no jurisdiction to deal with and decide the suits. So as per arguments of Shri D. V. Shah, in normal course, Civil Court had jurisdiction on the date of filing of the suit, but because of introduction of the Act, the jurisdiction of the Civil Court has been ousted, and therefore, the impugned order is not bad in law and the same cannot be disturbed as submitted by the appellant. ( 20 ) IN case of Vankamamidi Venkata Subba Rao Vs. Chatlapalli Seetharamaratna Ranganayakumma, reported in AIR 1997 SC 3082 , the Honble Supreme Court has specifically observed in Para 15 (Page 3085) as follows:". . . . . . . . . Therefore, the normal rule of law is that civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance is either expressly or by necessary implication excluded. The Rule of construction being that every presumption would be made in favor of the existence of a right and remedy in a democratic set up governed by rule of law and jurisdiction of the civil Courts is assumed. The exclusion would, therefore, normally be an exception. Courts generally construe the provisions strictly when jurisdiction of the civil Courts is claimed to be excluded. ". . . . . . . . .
The exclusion would, therefore, normally be an exception. Courts generally construe the provisions strictly when jurisdiction of the civil Courts is claimed to be excluded. ". . . . . . . . . ( 21 ) KEEPING in mind the aforesaid provisions and legal position with regard to exclusion of jurisdiction of civil Court, now we will examine the provisions of the Act on which the respondent has placed reliance for dismissal of these appeals. ( 22 ) RELEVANT provisions for consideration will be as follows:sec. 8 (1) Where any dispute arises between the parties to the works contract, either party shall, irrespective of whether such works contract contains an arbitration clause or not, refer, within one year from the date when the dispute has arisen, such dispute in writing to the Tribunal for arbitration in such form and accompanied by such documents or other evidence and by such fees, as may be prescribed. (2) On receipt of a reference under sub-section (1), the Tribunal may, if satisfied after such inquiry as it may deem fit to make, that the requirements under this Act in relation to the reference are complied with, admit such reference and where the Tribunal is not so satisfied, it may reject the reference summarily. (3) Where the Tribunal admits the reference under sub-section (2), it shall, after recording evidence if necessary, and after perusal of the material on record and on affording an opportunity to the parties to submit their arguments, make an award or an interim award/giving its reasons therefor. (4) The Tribunal shall use all reasonable dispatch in entering on and proceeding with the reference admitted by it and making the award, and an endeavour shall be made to make an award within four months from the date on which the Tribunal had admitted the reference. (5) The award including the interim award made by the Tribunal shall, subject to an order, if any, made under section 11 or 12, be final and binding on the parties to the dispute.
(5) The award including the interim award made by the Tribunal shall, subject to an order, if any, made under section 11 or 12, be final and binding on the parties to the dispute. (6) An award including an interim award as confirmed or varied by an order, if any, made under section 11 or 12 shall be deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure, 1908 of the principal Court of original jurisdiction within the local limits whereof the award or the interim award has been made and shall be executed accordingly. SEC. 13 (1) Save as otherwise provided by section 12, no Civil Court shall have jurisdiction to deal with or decide any question which the Tribunal is empowered to deal with and decide by or under this Act and no injunction shall be granted by any Civil Court in respect of any action taken or to be taken in pursuance of any power by or under this Act. (2) No award or interim award or order made or proceedings taken under this Act by the Tribunal shall be called in question in any Civil Court. SEC. 21 The provisions of the Arbitration Act, shall in so far as they are inconsistent with the provisions of this Act, cease to apply to any dispute arising from a works contract and all arbitration proceedings in relation to such dispute before an arbitrator, umpire, court or authority shall stand transferred to the Tribunal. ( 23 ) SHRI D. V. Shah has argued that in view of Sec. 13 of the Act, jurisdiction of civil Courts is barred. Looking to sub-sec. (1) of Sec. 13 of the Act all civil suits are not barred by Sec. 13 of the Act. Shri D. V. Shah has skillfully argued only for the words " to deal with or decide any question", by breaking the sentence. On reading Sec. 13 (1) of the Act, it is crystal clear that civil Court shall have no jurisdiction to deal with or decide any question which the Tribunal is empowered to deal with and decide under the Act. So only those suits cannot be tried by civil Courts in which the question is of such a nature that, that question can only be decided by the Tribunal constituted under the Act.
So only those suits cannot be tried by civil Courts in which the question is of such a nature that, that question can only be decided by the Tribunal constituted under the Act. Under the circumstances, it is necessary to know as to what type of suits can be tried and decided by the Tribunal. For this purpose, Sec. 8 will be useful to answer the query. On reading Sec. 8 (1) of the Act, it is crystal clear that where any dispute arises between the parties to the works contract, either party shall, irrespective of whether such works contract contains arbitration clause or not, refer within one year from the date when the dispute has arisen, such dispute in writing to the Tribunal for arbitration. It may be noted that in the beginning, in between words "where any dispute" and "between the parties", word "arises" is used. If intention of the legislature was to include dispute which had already arisen in the past, possibly the legislature would have used the word "arose" or words "has arisen". Thus, intention of the legislature is to the effect that dispute which arises after 1/1/1994 must be referred to the Tribunal constituted under the Act. Section 8 clearly suggests that it does not apply to disputes which had already arisen in the past before 1/1/1994. At the cost of repetition, again it is stated that the provisions of the Act are given effect, perspectively and not retrospectively. Under the circumstances, on combined reading of section 8 and section 13 together, it makes the position of law clear that whatever dispute arises after 1/1/1994 must be referred to the Tribunal constituted under the Act. At this stage, the provisions of analogous Act viz. [the] Recovery of Debts Due To Banks and Financial Institutions Act, 1993 (Act No. 51 of 1993) (for short the "act of 1993") are necessary to be examined in light of provisions of the Act. This Act of 1993 came into force on 25th day of June, 1993. Section 18 of the Act of 1993 is analogous to section 13 of the Act.
This Act of 1993 came into force on 25th day of June, 1993. Section 18 of the Act of 1993 is analogous to section 13 of the Act. Section 18 of the Act of 1993 reads as follows:section 18: Bar of Jurisdiction- On and from the appointed day, no Court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under Arts. 226 and 227 of the Constitution) in relation to the matters specified in section 17. SECTION 17 of the Act of 1993 deals with jurisdiction, powers and authority of Tribunal. Sub-section (1) or section 17 reads as follows:sub-SECTION (1): A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions. ( 24 ) DESPITE the fact that jurisdiction of civil Court has been ousted by section 18 of the Act of 1993, the legislature has placed on statute book a specific provision of Section 31 of the Act. Section 31 of the Act of 1993 reads as follows: Section 31 Transfer of pending cases.- (1) Every suit or other proceeding pending before any court immediately before the date of establishment of a Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after such establishment, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal; Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before any Court. (2) Where any suit or other proceeding stands transferred from any courts to a Tribunal under sub-section (1),- (A) the court shall, as soon as may be after such transfer, forward the records of such suit or other proceeding to the Tribunal;and (B) the Tribunal may, on receipt of such records, proceed to deal with such suit or other proceeding, so far as may be, in the same manner as in the case of an application made under section 19 from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit.
( 25 ) IF really an intention of the legislature was to transfer all civil suits even filed before 1/1/1994 to the Tribunal constituted under the Act, the provisions similar to section 31 of the Act of 1993, would have been incorporated in the Act. An absence of such type of section analogous to section 31 of the Act of 1993 clearly suggests that provisions of the Act will not be applied to the civil Suits filed prior to 1/1/1994. ( 26 ) A futile attempt has been made by Mr. D. V. Shah, learned Advocate for the respondent to apply Sec. 21 of the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1972. Caption of Section 21 clearly suggests that Section 21 will be applicable to all the proceedings in relation to the disputes arising under the provisions of Arbitration Act. These are not the proceedings under the Arbitration Act and therefore, in my view, section 21 of the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1972 cannot be made applicable to the facts of the present case. ( 27 ) THE learned Judge of the trial Court has referred to in his judgment, a decision in case of Soni Vrajlal Jethalal Vs. Soni Jadavji Govindji Decd. and Ors. , reported in 1972 G. L. R. 555. This authority is on the point where a suit is instituted in one court and if that court is of the opinion that he had no jurisdiction to entertain the suit, it is not open to that court to dismiss the suit on that count, but the court is required to proceed under Rule 10, C. P. Code, directing that the plaint should be returned to the plaintiff for presentation to the proper Court. This authority will be applicable only if on the date of filing of the suit, civil court had no jurisdiction to entertain the suit. If subsequent to filing of the suit, some proceeding has taken place and if jurisdiction of civil court is challenged, then in my view, instead of returning the plaint to the plaintiff for presentation to the proper Court, the Judge ought to have transferred the whole suit to the Tribunal. Here in this case, the learned Judge of the trial Court has not attempted to apply provisions of Order 7 Rule 10, C. P. C. in its correct perspective.
Here in this case, the learned Judge of the trial Court has not attempted to apply provisions of Order 7 Rule 10, C. P. C. in its correct perspective. Admittedly, on the date of filing of the suit, civil court had the jurisdiction. According to the learned Judge, on coming into force the Act, Civil Court ceases to have jurisdiction over the suit. In this set of facts and circumstances of the case, the learned Judge of the trial Court ought to have transferred the whole suit to the Tribunal by assigning reasons sustainable in law, instead of returning the plaints. ( 28 ) SHRI D. V. Shah, learned Advocate for the respondent has cited following authorities: (1) M/s. Sardar Construction Co. Vs. State of Gujarat, reported in AIR 1999 SC 2422 . This authority is not applicable to the present case because in that cited case, award under the Arbitration Act had already been passed prior to 1/1/1994 and for that award, proceedings were pending. Looking to section 8 and section 21 of the Act, the Honble Supreme Court held as under:". . . . . . . . the arbitration proceedings in relation to the dispute were pending before the Court and hence the High court has rightly transferred these proceedings to the Tribunal. . . . . . . . "under the circumstances, arguments of Mr. D. V. Shah are not acceptable to this case, because section 21 applies to all proceedings under the Arbitration Act and not to the proceedings under the Civil Procedure Code. (2) Sardar Patel University Vs. Patel and Co. reported in 1999 (2), 40 (2) GLR 1264. In this case, a moot question arose for determination as to whether Sardar Patel University is a Public Undertaking within the meaning of clause (ii) of sub-sec. (1) of section 2 of the Act. The Court held-" Sardar Patel University is a body corporate controlled by the State Government and therefore, it is a Public Undertaking within the meaning of clause (2) of sub-section (1) of section 2 of the Act. In that case, this Court did not decide anything about the suit filed prior to 1/1/1994.
(1) of section 2 of the Act. The Court held-" Sardar Patel University is a body corporate controlled by the State Government and therefore, it is a Public Undertaking within the meaning of clause (2) of sub-section (1) of section 2 of the Act. In that case, this Court did not decide anything about the suit filed prior to 1/1/1994. In that case, awards were passed by Arbitrators on 16/12/1992 and both the Arbitrators had submitted the awards to the Civil Court, Anand under Sec. 14 (2) of the Arbitration Act, 1940 on 19/9/1992, and therefore, in view of Sec. 21 of the Act, the proceeding under the Arbitration Act was rightly transferred to the Tribunal. Thus, the facts and circumstances of that case are totally different to the present case. (3) Munshi Ram and others Vs. Municipal Committee, Chheharta, reported in AIR 1979 SC 1256, the Honble Supreme Court held as under:"where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are excluded. "in view of the above, there is no analogous Act to Sec. 31 of the Act of 1993 in the present case. Thus, this authority will not be applicable to the present set of facts. ( 29 ) THE suits were filed in the year 1989 and the Act has come into force from 1/1/1994, and therefore, the jurisdiction of Civil Court cannot be said to have been ousted, more particularly when there is no provision analogous to Sec. 31 of the Act of 1993 in the Act. More over, the effect of provisions of the Act of 1993 is given prospectively and not retrospectively, and therefore, also jurisdiction of Civil Court cannot be said to have been ousted in view of Sec. 13 (1) of the Act. ( 30 ) IN my view, the learned Judge of the trial Court has grossly erred in interpreting Sec. 13 (1) of the Act of 1993 and passed illegal order of returning the plaints to the plaintiff for presentation to the proper Court.
( 30 ) IN my view, the learned Judge of the trial Court has grossly erred in interpreting Sec. 13 (1) of the Act of 1993 and passed illegal order of returning the plaints to the plaintiff for presentation to the proper Court. At this stage, this Court observes that the learned Judge of the trial Court has not followed the mandatory requirements of Order 14 Rule 2 (1) of the Code of Civil Procedure. As per Order 14 Rule 2 (1), C. P. C. he ought to have decided the suits on all issues. Instead of it, he picked up an issue with regard to jurisdiction of the Court for which he did not form an opinion that by answering particular issue, whole suit would be finally decided, and therefore, he has not complied with the provisions of Order 14 Rule 2 (1), C. P. C. before framing particular issue referred to in the impugned order. He was required to form an opinion that issue is a Preliminary Issue which needs consideration at the earliest. Here in this particular case, he straightway framed issue and answered the same in such a way that the plaintiffs suit is put to "nowhere" and passed such an order by wrong exercise of powers under Order 7 Rule 10, C. P. C. ( 31 ) IN view of what is discussed hereinabove, these appeals deserve to be allowed. The common impugned order dated 29/9/1998 below Ex. 27 passed in main Special Civil Suit No. 321 of 1989 (together with Special Civil Suit Nos. 322 of 1989 to 324 of 1989), by the learned 7th Joint Civil Judge (S. D.), Nadiad, is set aside. In view of the fact that the suits are of the year 1989, they are required to be expedited at the earliest. The learned Judge of the trial Court is directed to decide and dispose of aforesaid suits without being influenced by this order within nine months from the date of receipt of writ of this order of this Court. There shall be no order as to costs. ( 32 ) MR. Dharmesh V. Shah, learned Advocate for the respondents requests this Court to stay the operation and implementation of this judgment as respondents want to move higher forum to challenge this judgment.
There shall be no order as to costs. ( 32 ) MR. Dharmesh V. Shah, learned Advocate for the respondents requests this Court to stay the operation and implementation of this judgment as respondents want to move higher forum to challenge this judgment. In view of the facts and circumstances of the case, request is granted and period of six weeks is granted from the date of receipt of writ of this order to the respondents to approach the higher forum. Till then, operation of this judgment is stayed. .