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Union of India (Uoi) and ors. Vs. Kishore Chandra Padhy and anr. Etc. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Review Nos. 12 and 13 of 1979
Judge
Reported inAIR1981Ori212
ActsCode of Civil Procedure (CPC) , 1908 - Order 47, Rule 1; Arbitration Act - Sections 20
AppellantUnion of India (Uoi) and ors.
RespondentKishore Chandra Padhy and anr. Etc.
Appellant AdvocateB.M. Patnaik and ;G.B. Patnaik, Advs.
Respondent AdvocateDevananda Misra, ;Dipak Misra and ;D.P. Mohapatra, Advs.
DispositionPetitions dismissed
Cases Referred(Pitambar Mallik v. Ramchandra Prasad). There
Excerpt:
.....to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - clearly provides three grounds for review. advocate as the arbitrator in good faith and lie has further ensured that the arbitrator should be assisted by an account knowing person......officers of the railway, and two advocates shri r. n. mohanty, government pleader, bhubanewar and shri a misra, advocate, orissa high court, cuttack. on the very same day mr. devananda misra, advocate for the contractor, filed a memo and agreed to the appointment of shri a misra, advocate (whose name was in the panel of names submitted by the defendants) as an arbitrator to adjudicate the dispute. thereafter by order dated 25-1-79 the court appointed shri t. m. varghese, chief engineer, south eastern railway (whose name was in the panel of names submitted by the defendants) as the sole arbitrator to decide the dispute between the parties. against the order of appointment of shri t. m. varghese as the arbitrator, the contractor filed a petition for review which was rejected. against the.....
Judgment:
ORDER

J.K. Mohanty, J.

1. These two applications under Order 47, Rule 1 of the Civil P. C. have been filed for review of the consent orders dated 20-3-79 passed by this Court in Civil Revisions Nos. 116 and 117 of 1979. Biswanath Padhy, opposite party, (hereinafter called the 'Contractor') entered into an agreement dated 10-2-76 with the President of India through the Deputy Chief Engineer (Constrution). South Eastern Railway, Waltair (opp. party No. 2) for execution of some works regarding some bridges etc. Dispute having arisen between the parties regarding settlement of claims, opposit party No. 1 filed. Misc. Cases Nos. 258 and 259 of 1978 on 23-8-78 before the Subordinate Judge. Bhubaneswar under Sections 8 and 11 of the Arbitration Act and prayed for appointment of a law knowing person as the Arbitrator to enter on the reference to be made to him and to make an award. The Court by order dated 21-11-78 on the application of the Contractor permitted to amend the application and to treat the same as a plaint under Section 20 of the Arbitration Act and to implead the Union of India represented by the General Manager, South Eastern Railway as -a party. Thereafter O. S. Nos. 126 and 127 of 1978 were registered and a joint written statement on behalf of all the defendants, namely. Union of India represented by the General Manager, South Eastern Railway, the Deputy Chief Engineer (Construction). South Eastern Railway, Waltair and the District Engineer (D. & D. B. K.). South Eastern Railway, Waltair, was filed, through their Advocate Shri Indrajit Ray. The suits were heard and on 22-12-78 the Court pronounced judgment the ordering portion of which is as follows:--

'The agreement be filed and a reference of the disputes be made to an Arbitrator for adjudication. Parties are directed to submit a panel of names by 22-12-78 for the appointment of an Arbitrator. Parties to bear their own costs of this proceeding.'

On 10-1-79 the defendants filed an application praying for time to submit the panel of names and on 17-1-79 submitted the panel of names which included four officers of the Railway, and two Advocates Shri R. N. Mohanty, Government Pleader, Bhubanewar and Shri A Misra, Advocate, Orissa High Court, Cuttack. On the very same day Mr. Devananda Misra, Advocate for the Contractor, filed a memo and agreed to the appointment of Shri A Misra, Advocate (whose name was in the panel of names submitted by the defendants) as an Arbitrator to adjudicate the dispute. Thereafter by order dated 25-1-79 the Court appointed Shri T. M. Varghese, Chief Engineer, South Eastern Railway (whose name was in the panel of names submitted by the defendants) as the sole Arbitrator to decide the dispute between the parties. Against the order of appointment of Shri T. M. Varghese as the Arbitrator, the Contractor filed a petition for review which was rejected. Against the orders passed on 25-1-79, the Contractor filed Civil Revision Nos. 116 and 117 of 1979 before this Court whereto was prayed to set aside the impugned order to the extent of revoking the appointment of Shri T. M. Varghese as the Arbitrator and to appoint Shri A. Misra, Advocate as an Arbitrator to adjudicate the dispute between the parties. On 23-2-79 these civil revisions came up for admission before the Hon'ble the Chief Justice, who issued notice on the question of admission and hearing and granted interim stay of the proceedings before the Arbitrator. It was further directed that Mr. Devananda Misra, learnedcounsel appearing for the Contractor,would serve a copy of the petition onMr. Indrajit Ray, Advocate who appeared for all the opposite parties in the courtbelow with a further note that the matter would be heard finally on Friday. On2-3-79 Mr. Indrajit Ray, Advocate enteredappearance and requested for time tofile counter, if any, in the meantime. On20-3-79 with the consent of the parties,the cases were heard and the followingidentical orders were passed in both thecases.

'Both parties agree that Sri A. Misra Advocate be appointed as Arbitrator and he will be assisted by an account knowing person, as this case involves some complicated Questions of accounting. The opposite parties will submit a name of any account knowing person to assist the Arbitrator.

I, therefore, set aside the order of the Sub-Judge appointing Mr, T. M. Varghese as the Arbitrator. The learned Sub-Judge will take necessary steps appointing Shri A. Misra, Advocate as the Arbitrator.

This revision petition is accordingly allowed with the above direction.' Now these two petitions under Order 47 Rule 1 C. P. C. have been filed by the Union of India represented by the General Manager, South Eastern Railway, the Deputy Chief Engineer (Con.). South Eastern Railway, Waltair and the District Engineer (D. D. B. K.), South Eastern Railway, Waltair, to review the above orders passed on 20-3-79. The main grounds on which the orders are sought to be set aside are that petitioner No. 2 the Deputy Chief Engineer (Con.) and petitioner No. 3 the District Engineer. South Eastern Railway are not bound by the alleged consent given by Shri Indrajit Ray, Advocate as they were not represented in the case and the advocate for petitioner No. 1 had no legal authority to represent them; that the petitioner No. 1, the Union of India, is also not bound by such consent as no instruction was given to the Advocate to that effect in the civil revision; that unless the orders are reviewed, it will cause gross prejudice to the petitioners as the actual position of facts was not placed before the Court when the orders were passed; and that not only there was no consent by the petitioners for appointment of an Arbitrator outside the provisions of the contract, the orders were passed in the absence of opposite parties Nos. 2 and 3 and they have been precluded from satisfying this Court that no person other than the Contractor's nominee and General Manager's nominee could be appointed as Arbitrator according to the arbitration Clauses 64 (3) (a) (ii) and 64 (3) (b) of the General Conditions of Contract.

2. Order 47 Rule 1 C. P. C. deals with the Question of review which is as follows :--

'(1) Any person considering himself aggrieved -

(a) by a decree or order from which an appeal is allowed but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.' So Order 47 Rule 1 C. p. C. clearly provides three grounds for review. In these cases the ground taken by the petitioners is that there is a mistake or error apparent on the face of the record inasmuch as the court recorded the consent, order under a mistaken impression that all the parties were represented through their lawyer Shri Indrajit Ray and had consented to the appointment of Shri A. Misra. Advocate as the sole Arbitrator. Mr. Patnaik, learned counsel appearing for the petitioners, submitted that the opposite parties 2 and 3 had no notice of the petition and in fact no notice was issued to them about the filing of the petitions. Mr. Indrajit Ray. Advocate only appeared and filed power on behalf of the Union of India represented by the General Manager, South Eastern Railway and he had no authority to appear on behalf of opposite parties 2 and 3. He argued that the General Manager, opposite party No. 1, has asserted that he has nominated four officers (not the two Advocates mentioned in the panel of names) and there was strict instruction to their Advocate that the Arbitrator should be appointed according to the Clauses 64 (3) (a) (ii) and 64 (3) (b) of the general conditions of the Contract. In support of his contention Mr. Patnaik cited a decision reported in AIR 1958 Pat 521 (Harischandra Jha v. Dinesh Narain Jha) wherein it has been held (at p. 524):--

'Where the court recorded the consent order under the mistaken impression that all parties and lawyers were present and had consented to the terms of the compromise though as a matter of fact the petitioners were not present and had not consented to that compromise nor then they had any lawyer who could represent them or consent to that compromise on their behalf, there is a mistake or error apparent on the face of the record and an application for review is maintainable.'

He also cited AIR 1957 Pat 575 (Smt. Gauri Kumari Devi v. Krishna Prasad) wherein it has been held (at p. 586);--

'Where an ex parte order dismissing an execution is sought to be reviewed on ground that the order was passed behind the back of the decree-holder without any notice to him it is a case of mistake or error apparent on face of record and therefore the order is open to review.

Even if it be accepted that no review lies, the Court of execution has still inherent power under Section 151 of the Civil P. C. to restore the execution case which stood dismissed as a result of the ex parte order.'

3. In reply Mr. Mohapatra, learned counsel for the Contractor (opp. party in these cases) submitted that when the case was listed before the Court for admission the Hon'ble Court was pleased to issue notice of admission and hearing, but realising the urgency of the matter the usual procedure of filing the requisites for taking out notices to the opposite parties was dispensed with. The Hon'ble Court instead directed the counsel for the petitioners (in the Civil Revisions) to serve the copies of the revision petitions along with a memo that the case would be taken up on the date stated in the memo on Shri Indrajit Ray Advocate, who was appearing for the opposite parties in the court below. In compliance with the said direction Shri Indrajit Ray was served with a notice along with the copies of the petitions and the memo that the matter would be heard, as directed. The petitioners in their review applications have themselves stated that Shri Indrajit Ray after receiving the notice from the counsel for the petitioner in compliance with the order of this Court had gone to Calcutta, contacted the Law Officer in the office of the General Manager. South Eastern Railway and had explained the position to him that he had accepted notice in compliance with the direction of this Court and was going to appear in these cases. Thereafter on 23-9-79 the case was disposed of by a consent order recorded by this Court. According to Mr. Mohapatra the main contention advanced on behalf of the petitioners is that Shri Ray was only representing the Union of India and the other petitioners did not have the opportunity of placing their case before the order was passed. The main contesting party in the suit is the Union of India and the two other opposite parties are subordinate officers of the Union of India. It, is the admitted position that the Union of India was appearing through Shri Indrajit Ray, Advocate in this Court, Mr. Mohapatra further submitted that in the court below after the suit was registered under Section 20 of the Arbitration Act the opposite parties (Union of India and the two other officers) filed a joint written statement through Shri Indrajit Ray, who was the counsel for all of them. By order dated 22-12-1978 the parties were directed to submit a panel of names for the appointment of the arbitrator and in pursuance of the aforesaid directions, the defendants submitted a panel of six names on 17-1-79 which included the names of the two Advocates Shri A, Misra and Shri R. N. Mohanty. The Contractor did not submit any separate panel of names, but agreed to the appointment of Shri A. Misra, Advocate as the sole arbitrator. Normally the court should have appointed Shri A. Misra, the person agreed to by both parties, but instead appointed Shri T. M. Varghese, one of the officers of the Union of India, whose name was in the panel submitted by the defendants (petitioner in these cases). The defendants having submitted a panel of names (which included the names of the two advocates) according to the direction of the court vide order dated 22-12-78 (which has not been challenged), now have turned back and said that they have not agreed to the names of the two advocates but wanted that the provisions of the Clauses 64 (3) (a) (ii) and 64 (3) (b) of the General Conditions of the Contract, should have been followed. If the intention of the defendants was that the provisions of Clause 64 (3) (b) of the General Conditions of the Contract are to be adhered to, they should have only given three names of Gazetted Railway Officers out which the Contractor would have chosen one instead of giving six names including the names of the two advocates. This shows, it was left to the Court to choose the Arbitrator from out, of the panel of six names. The Union of India, who was the main contesting party, was duly represented by Shri Indrajit Ray, in the Civil revisions and the other two opposite parties, namely the two other officers of the Union of India, had no separate or conflicting interest in the matter. Mr. Mohapatra further argued that when the revisions by the Contractor were before the Court with a specific prayer that the agreed Arbitrator Shri A. Misra, Advocate should be appointed as such, it was open for this Court to appoint Shri A. Misra as the Arbitrator. The opposite parties 2 and 3 though have not appeared through any lawyer, the Union of India, opposite party No. 1 who is the main contesting party, having appeared through a lawyer, they were in no way prejudiced.

4. Mr. Mohapatra further pointed out that the decision reported in AIR 1958 Pat 521 (supra) cited by Mr. Patnaik supports his case. In that case a compromise was entered into by a lawyer on behalf of some of the brothers for whom he had no vakalatnama. The court held in the facts and circumstances of that case that it has to be remembered that in the trial court also these brothers were sailing in the same boat having filed a common Vakalatnama and a a common written statement. The earlier vakalatnama was executed by all the four brothers whereas the subsequent vakalatnama was only signed by two, But that by itself is not very much conclusive on the point in issue. The circumstances on the record are more in favour of the probabilities that perhaps after the compromise some new incident took place in the family which worked up the old feud afresh and hence the review petition was filed. Ultimately the Court held that there was implied authority to conclude a valid agreement of compromise on behalf of all the respondents including the petitioners and 16 was not necessary to give a definite finding on this point, for, on the ground of implied authority alone it has to be held that the application for review without substance. He further submitted that the negligence or misapprehension on the part of the counsel is no ground for review and he cited decisions reported in AIR 1962 Mad 304 (Soosai Anthony D' Costa Nicholas v. Francis Roche Anthony) and AIR 1968 Pat 320 (Pitambar Mallik v. Ramchandra Prasad). There appears to be considerable force in the argument of Mr. Mohapatra.

5. In these cases, the main contesting party is the Union of India, The Union of India and the two other officers appeared through Shri Indrajit Rav and filed a common written statement and they had no conflicting interest in the matter. The panel of names including the names of the two advocates was also submitted by all the defendants as directed by the trial court. That means all the defendants agreed to the names given in the panel. No allegation whatsoever has been made at any time in the court below or in this Court that Mr. Indrajit Ray has included the names of the two advocates in spite of a specific direction given by the defendants. No mala fide has been alleged against Mr. Ray. It is also the case of the petitioners that Mr. Ray after receiving the notices of these two revisions from this Court met the Law Officer in the office of General Manager. South Eastern Railway and explained to him the entire position and he was given a vakalatnama duly executed on behalf of the General Manager. South Eastern Railway to appear in this case. Mr. Ray who was authorised to appear on behalf of the Union of India gave his consent to the appointment of Shri A. Misra. Advocate as the Arbitrator in good faith and lie has further ensured that the arbitrator should be assisted by an account knowing person. The Court also after hearing the advocates could have appointed Shri A. Misra as the Arbitrator as his name was in the panel of names submitted by the defendants and agreed to by the Contractor. So Shri Indrajit Ray, Advocate by agreeing to the name of Mr. A. K. Misra has not acted in a manner which is prejudicial to the interest of the parties. Since the Union of India is bound bv the order it is not open to the subordinate officers of the Departments of the Union Government to come forward and say that they are entitled to take a different stand and they were not heard. In any event, in my opinion, no prejudice has been caused to the two officers on whom notices were not served and their interest was not in any way adversely affected,

6. In the result, therefore, there Is no merit in these petitions and the sama are dismissed, but in the circumstances without costs.


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