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2005 DIGILAW 62 (JK)

Saif-ud-Din (Kh. ) v. State Of J. &K.

2005-03-22

MANSOOR AHMAD MIR

body2005
1. This order will govern the revision petition in hand presented by Mr. Abdul Majid Dar, whereby the orders dated 06.08.2003, 19.06.2003 and 11.03.2003 passed by learned Principal District Judge, Srinagar have been assailed. 2. Heard. Mr. Dar while addressing arguments argued that arbitrator has submitted the award which pertains to the dispute of the year 1975 between the parties. The leaned Principal District Judge, Srinagar put the parties to notice after award came to be filed. Petitioner has not filed objections to the award and prayed that award be made rule of the Court, but the respondents objected the award by the medium of objections. The learned judge has framed issues vide order dated 11th March, 2003 and directed the parties to address arguments. 3. The learned counsel for the parties addressed arguments and case was reserved for judgment. But instead of passing judgment, the learned judge vide order dated 19th June, 2003 asked the respondents to lead evidence at the first instance and then vide order dated 6th August, 2003 issued summon to the witnesses. 4. Feeling aggrieved by the said orders, the revision petition in hand has been filed. 5. Mr. Majid argued that the matter is very old and all the issues can be decided while going through the entire award, because all the issues revolve round the award and arbitration proceedings and can be decided without leading evidence. In support of his arguments, he referred a judgment of Delhi High Court reported in 1995(1) Arbitration Law Reporter page 153. 6. Mr. Bhat while rebutting the arguments stated that the arbitrator has mis-conducted the proceedings and mis-conducted himself. In order to prove these two issues evidence is required and referred to judgments reported in AIR 1977 J&K page 19 (Saif-ud-din Jan v. Executive Engineer, Irrigation), AIR 1955 Punjab 109 (Moti Mahal Theatres Ltd. v. Seth Babu Lal Cokhani) and AIR (35) 1948 Patna 207 (Sheocharan Mahton and others v. Sanichar Mahton and others). And further argued that judgment of Delhi High Court referred hereinabove and relied upon by Mr. Majid is not binding in view of the judgment of this court. 7. Considered. Section 30 of the Act mandates on what grounds the award can be set-aside by the court. But if the grounds are capable of being substantiated merely going through the award and the arbitration proceedings, then there is no need to frame issues. Majid is not binding in view of the judgment of this court. 7. Considered. Section 30 of the Act mandates on what grounds the award can be set-aside by the court. But if the grounds are capable of being substantiated merely going through the award and the arbitration proceedings, then there is no need to frame issues. When such a ground is raised, which cannot be decided while examining the award and the arbitration proceedings, then in that event, the issues are to be framed and recording evidence, on affidavits or by calling witnesses, is required. 8. Mr. Bhat has filed written arguments on 5th April, 2003 in the court below and has explained in detail, how the arbitrator has misconducted proceedings and how the arbitrator misconducted himself. The reference has been made only to the contents of award and arbitration proceedings. 9. It is worthwhile to mention herein that arbitration proceedings are summary in nature and purpose of Arbitration Act is to settle the disputes as early as possible and presumption is always attached to the correctness of the proceedings and award made by the arbitrator unless the objector has specifically challenged the correctness of the proceedings and award made by the arbitrator. The points raised in the objections can be decided while going through the record and contents of the award. My this view is fortified by the judgment reported in 1995(1) Arbitration Law Reporter 153. It is profitable to reproduce para-8, 9 and 10 of the said judgment herein:-- "8. Presumption attaches to the correctness of the proceedings and record made by an arbitrator unless there is a specific challenge laid to it. In all such cases where the truthfulness or correctness of the record of the proceedings made by the arbitrator is not under challenge, it is not necessary to record any evidence. The objections preferred by either party if capable of being substantiated by reference to record of the proceedings made by an arbitrator and/or the award made by him, the court may straightaway proceed to hear the objections dispensing with the necessity of recording any evidence even by way of affidavits. 9. The objections preferred by either party if capable of being substantiated by reference to record of the proceedings made by an arbitrator and/or the award made by him, the court may straightaway proceed to hear the objections dispensing with the necessity of recording any evidence even by way of affidavits. 9. Any other view taken would result in needless waste of public time and money requiring the court to record the evidence, receiving in evidence such documents which already form part of the record of the arbitrator and as to which the arbitrator might have already recorded evidence. It will be a sheer duplication, needless too. 10. For the foregoing reasons, the prayer made by the learned counsel for the respondent is refused. Let it be placed on record that the correctness of the proceedings recorded by the arbitrator is not under challenge. All the objections raised by the respondent are capable of being substantiated by reference to the record of the arbitration proceedings and the award." 10. Now, coming to the point raised by Mr. Bhat that judgment of this court is binding and not the judgment of Honble Delhi High Court. 11. It is a fact that the judgment of our own High Court is binding but in the judgment reported in AIR 1977 J&K page 19, the question that if the objection raised by the objector can be decided while going through the award and arbitration proceedings, then in that even the evidence is not required, has not come up for consideration. 1. Thus in the given circumstances of the case, this court has not decided the said point and the said point has been decided by Honble Delhi High Court, in the judgment referred hereinabove. 2. Viewed thus the revision petition is allowed and the impugned orders dated 11.03.2003 and 19.06.2003 are set-aside. The learned District Judge is directed to hear arguments and decide the issue. The parties are directed to cause appearance before Pr. District & Sessions Judge, Srinagar on 26.03.2005. Send down the record.