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State of Rajasthan Vs. Mehta Chetan Das Kishandass - Court Judgment

LegalCrystal Citation
SubjectArbitration;Limitation
CourtRajasthan High Court
Decided On
Case NumberCivil Review Appln. No. 9 of 1978
Judge
Reported inAIR1981Raj36; 1978(11)WLN321; 1980()WLN13
ActsLimitation Act, 1963 - Schedule - Article 137; Arbitration Act, 1940 - Sections 8(2); Code of Civil Procedure (CPC) , 1908 - Order 47, Rule 1
AppellantState of Rajasthan
RespondentMehta Chetan Das Kishandass
Advocates: Rajesh Balia, Dy. Govt. Adv.
DispositionApplication allowed
Cases ReferredHari Vishnu v. Ahmad Ishaque
Excerpt:
.....the act.;revision dismissed with costs - - the trial judge had clearly stated in his judgment that jamna kuer's claim to properties 3 to 37 of the gazette notification. ahmad ishaque, air 1955 sc 233, have held that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature and it must be left to be determined judicially on the facts of each case......dictum laid down in kerala state electricity board's case is a mistake or error apparent on the face of the record within the meaning of order xlvii, rule 1, c. p. c. and, therefore, finding of issue no. 4 while deciding the revision, can be reviewed.8. it will be useful here to read relevant portion of order xlvii, rule 1, c. p. c.:'rule 1. application for review of judgment. (1) any person considering himself ag-prieved. -- (a) bv 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.....
Judgment:
ORDER

S.K. Mal Lodha, J.

1. This is an application for review under Order XLVII, Rule 1, C. P. C. against the order dated July 10, 1978 passed in S. B. Civil Revision Petition No. 594 of 1974 by which the revision filed by the State of Rajasthan was dismissed.

2. A few facts may be recounted: The non-applicant (Contractor) submitted an application under Section 8(2) of the Arbitration Act (No. X of 1040) (for short 'the . Act' hereafter) on July 27, 1973 against the State of Rajasthan. The State of Rajasthan resisted the application on various grounds by filing a reply. The learned District Judge framed seven issues inclusive of tre relief Issues Nos. 3, 4 and 6 are as under:

'(3) Whether the petitioner has waived his right to refer the matter to arbitration as alleged in para 11 of the reply and if so, what is its effect?

(4) Whether the petition is not maintainable as alleged in paras 13 and 14 of the reply?

(6) Whether the petitioner is entitled under Section 8 of the Arbitration Act to get an arbitrator appointed?'

The learned District Judge, Shri Ganga-nagar, by his order dated May 30, 1974 held that the non-applicant (Contractor) is entitled to a direction and, therefore, he gave the direction and accepted the application.

3. A revision petition was filed against the order of the District Judge Sri Ganganagar by which he accepted the application under Section 8(2) of the Act The revision petition was registered as S. B. Civil Revision Petition No. 594 of 1974. The following findings were recorded in the order dated July 10, 1978, passed in revision:

(1) That in the absence of a nomination by the State, the second para of Clause 19 (2) of the agreement cannot come into operation so as to extinguish all the rights and claims of the contractor, who had moved the Court under Section 8(2) of the Act. The finding on issue No. 3 was upheld.

(2) That there is no period prescribed for making an application under Section 8(2) of the Act and that Article 137 of the Limitation Act, 1963 has no application. Finding on Issue No. 4 was confirmed.

(3) That the case of the contractor was fully covered by the provisions of Section 8(1)(a) of the Act and consequently, the learned District Judge was right in appointing the Arbitrator under Section 8 of the Act. It was held that issue No. 6 was correctly decided by the District Judge.

In view of the foregoing findings, the revision petition was dismissed with costs. The State of Rajasthan has filed the application for review On the ground that in vipw of the decision reported in Kerala Slate Electricity Board v. T. P. Kunhaliumma, AIR 1977 SC 282, the application of the contractor under Section 8(2) of the Act was time-barred inasmuch as Article 137 of the Limitation Act, 1963 is applicable and that the decisions relied on by this Court while deciding issue No. 4 could not be availed of as the decisions in Town Municipal Council, Athani v. Presiding Officer, Labour Court, AIR 1969 SC 1335 and Kerala State Electricity Board v. Illippadical Parvathi Amma, AIR 1974 Ker 202 were overruled.

4. A notice was ordered to be issued to the non-applicant (contractor) on September 9, 1978. Despite service, nobody has appeared nn behalf of the non-applicant.

5. I have heard Mr. Rajesh Balia, Dy. Government Advocate, appearing for the applicant.

6. In Kerala State Electricity Board's case, (AIR 1977 SC 282), it was ruled as under:

'The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two Judge Bench of this Court in Athani Municipal Council case, (AIR 1969 SC 1335) (supra) and hold that Art 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application within the scope of Article 137 of the 1963 Limitation Act.' Tt is, therefore, clear that Article 137 of the Limitation Act, 1963 is not confined to applications contemplated by or under the Code of Civil Procedure. The view taken while deciding issue No. 4 in the revision was not in conformity with the dictum laid down by their Lordships of the Supreme Court in Kerala State Electricity Board's case,'

7. Learned Deputy Government Advocate strenuously urged that the decision of issue No. 4 without taking note of the dictum laid down in Kerala State Electricity Board's case is a mistake or error apparent on the face of the record within the meaning of Order XLVII, Rule 1, C. P. C. and, therefore, finding of issue No. 4 while deciding the revision, can be reviewed.

8. It will be useful here to read relevant portion of Order XLVII, Rule 1, C. P. C.:

'Rule 1. Application for review of judgment.

(1) Any person considering himself ag-prieved. --

(a) bv 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,

(2)

In Harisankar v. Anath Nath, AIR 1949 FC 106, it was observed as under:

'.....however, the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order 47, Rule 1, C. P. C.'' In Mst. Jamna Kuer v. Lal Bahadur ,AIR 1950 FC 131, it was observed as follows: 'There can be no doubt that this appeal must be allowed. The mistake as to the items of property regarding which Mt. Jamna Kuer had laid a claim is apparent on the face of the record. The trial Judge had clearly stated in his judgment that Jamna Kuer's claim to properties 3 to 37 of the gazette notification. In para 15 of her amended objection petition, she had laid down claims to all the properties left by Kunj Behari. On 29th April, 1942, it was admitted by the pleader of the applicants that all these properties related to the estates of Kunj Behari and that so far as the debtors were concerned, they were owners of only two properties mentioned in the gazette notification. In this situation it would have been appropriate if the High Court had corrected this error On the review petition and saved the appellant the trouble and expense of an appeal to the Privy Council or to this Court. Whether the error occurred by reason of the counsel's mistake or it crept in by reason of an oversight on the part of the Court was not a circumstance which could affect the exercise of jurisdiction of the Court to review its decision. We have no doubt that the error was apparent on the face of the record and in our opinion the question as to how the error occurred is not relevant to this enquiry. A mere look at the trial Court's decision indicates the error apart from any thing else.'

9. In Jairam v. Gopiram, 1854 Raj LW 148, was held:

'A review of the case law dearly leads as to the conclusion that where the mistake or error of law is not merely one in the deposition of law relevant to a case but is a more radical error and amounts to completely Ignoring a positive rule of law, and the error is so manifest or patent that it admits of no doubt or dispute, such an error of law is one on the face of the record and is sufficient to satisfy the conditions of Order XLVII, Rule 1, C. P. C. We are of opinion that the error in the case before us is an error of this kind. If the attention of the learned Judges had been directed to Section 26 of the Limitation Act of the former State of Bikaner, or assuming that their attention had been directed to it, if they had applied their minds to that mandatory provision of statute law and discussed the contention raised before them, we have no doubt that they would not have fallen into the error into which they did. We are accordingly of the opinion that the error in the present case is an error apparent on the face of the record and satisfies the conditions of Order XLVII, Rule 1, C. P. C.' (Underlining is mine)

It needs to be mentioned here that their Lordships of the Supreme Court in Hari Vishnu v. Ahmad Ishaque, AIR 1955 SC 233, have held that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature and it must be left to be determined judicially on the facts of each case.

10. The view taken that Article 137 of the Limitation Act, 1963 has no application to an application under Section 8(2) of the Act was due to the fact that the learned counsel for the parties in the Revision, informed that Town Municipal Council's case, (AIR 1969 SC 1335) has not been reconsidered by their Lordships of the Supreme Court till then which was inadvertency Inasmuch as the dictum of their Lordships of the Supreme Court, which is binding, was not noticed and in ignorance of that, the finding in regard to the question of limitation was recorded. As the dictum of their Lordships of the Supreme Court was not noticed and overlooked while giving finding on issue No, 4, relating to the question of limitation for filing of the application under Section 8(2) of the Act, this, in my opinion, is a mistake or error apparent on the face of the record and it is a valid ground for review. This view of mine is supported by the aforesaid decisions of the Federal Court and Rajasthan High Court, This has necessitated reviewing of the order dismissing the revision.

11. The result is that the application for review is granted and the order dated July 10, 1978 passed in the revision is recalled. The revision petition shall now be posted for re-hearing after notice to the parties.


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