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Prof. Bhagwandas Bhargava Vs. Durga Prasad Rastogi - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 361 of 1972
Judge
Reported inAIR1973Raj69; 1972()WLN822
ActsRajasthan Civil Courts Ordinance, 1950 - Sections 10(3); Arbitration Act, 1940 - Sections 31; Code of Civil Procedure (CPC) , 1908 - Sections 24
AppellantProf. Bhagwandas Bhargava
RespondentDurga Prasad Rastogi
Appellant Advocate D.S. Shishodia, Adv.
Respondent Advocate N.K. Jain, Adv.
DispositionPetition dismissed
Cases ReferredKumbha Mawji v. Dominion of India
Excerpt:
.....rajasthan civil courts ordinance, 1950--section 10--transfer application transferred to additional district judge--whether he can dispose of.;under section 10(3) of the rajasthan civil courts ordinance, 1950 any additional district judge is competent to discharge any of the functions of a district judge which the latter may assign to him and in the discharge of those functions he shall exercise the same powers as the district judge. the district judge having transferred the transfer application to the additional district judge no. 2, the latter was competent to exercise the powers of the district judge under section 24, civil p.c. in respect of it.;(b) arbitration act - section 31--validity of award--whether additional district judge can dispose of objections and pass a decree.;the..........no. 2 jaipur city, dated 1-4-1972, transferring the present suit to his file from the file of civil judge jaipur city, with the consent of the parties.2. five suits were pending between the parties in different courts of jaipur when they applied to the respective courts on 31-7-1959 for the reference of the disputes in the suits to the arbitration of the same person. all these five suits including the present suit, were referred to arbitration. the present suit was then pending in the court of civil judge. jaipur city, who made the reference to arbitration. one award was given in all the five suits.3. before the award was given by the arbitrator these suits were transferred to other courts. the suit of the highest valuation out of the five suits was suit no. 16/68 which was pending.....
Judgment:
ORDER

Jagat Narayan, C.J.

1. This is a defendant's revision application against, an order of the Additional District Judge No. 2 Jaipur City, dated 1-4-1972, transferring the present suit to his file from the file of Civil Judge Jaipur City, with the consent of the parties.

2. Five suits were pending between the parties in different Courts of Jaipur when they applied to the respective courts on 31-7-1959 for the reference of the disputes in the suits to the arbitration of the same person. All these five suits including the present suit, were referred to arbitration. The present suit was then pending in the Court of Civil Judge. Jaipur City, who made the reference to arbitration. One award was given in all the five suits.

3. Before the award was given by the arbitrator these suits were transferred to other courts. The suit of the highest valuation out of the five suits was suit No. 16/68 which was pending In the court of the District Judge. This suit had been transferred to the court of Additional District Judge No. 2. Jaipur City, before the award was filed and the award was filed in that court. The present suit was pending in the court of Additional Munsif No. 1. Jaipur City when the award was filed. It was later on transferred to the court of Civil Judge. Jaipur City. The plaintiff filed an application to the District Judge for the transfer of this suit to the court of the Additional District Judge No. 2, Jaipur City so that objections against the award may be decided by that court. The original award was filed in suit No. 16 of 1968 which had been transferred to the court of Additional District Judge No. 2, Jaipur City, and copies of it were filed in the other four suits.

4. The transfer application was transferred by the District Judge for disposal to the Additional District Judge No. 2, Jaipur City. When it came up for hearing the defendant consented that the present suit should be transferred to his court and on the basis of that consent the order of transfer was passed.

5. It has been alleged that the defendant did not consent to the transfer and the learned Additional District Judge No. 2, Jaipur City, has made an erroneous statement in his order to that effect. I am satisfied that this allegation is utterly false, and that the defendant did consent to the transfer of the suit to the court of Additional District Judge No. 2. Jaipur City.

6. Another contention which has been raised is that the Additional District Judge could not dispose of the transfer application under Section 24. Civil P. C. This contention too has No. force. Under Section 10(3) of the Rajas-than Civil Courts Ordinance, 1950 any Additional District Judge is competent to discharge any of the functions of a District Judge which the latter may assign to him and in the discharge of those functions he shall exercise the same powers as the District Judge. The District Judge having transferred the transfer application to the Additional District Judge No. 2. the latter was competent to exercise the powers of the District Judge under Section 24, Civil P. C. in respect of it

7. Another contention raised on behalf of the defendant is that the additional District Judge No. 2 Jaipur City is not competent to dispose of the objections against the award in view of Section 31 of the Arbitration Act which runs as follows :--

'31.(1) Subject to the provisions of this Act, an award may be filed in any Court having jurisdiction in the matter to which the reference relates.

(2) Notwithstanding anything contained in any other law for the time being in force and save as otherwise provided in this Act, all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or persons claiming under them shall be decided by the Court in which the award under the agreement has been, or may be filed and by no other Court

(3) All applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings shall be made to the Court where the award has been made or may be filed, and to no other Court.

(4) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, where in any reference any application under this Act has been made in a Court competent to entertain it that Court alone shall have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference and the arbitration proceedings shall be made in that Court and in no other Court.'

It is argued that under Sub-section (2) all questions regarding the validity of the award can only be decided by the court in which the award had been filed and by no other court and under Sub-section (4) where in any reference any application under the Arbitration Act has been made in a court competent to entertain it that court alone shall have jurisdiction over the arbitration proceedings.

8. Reliance is placed on the following observations made by a Division Bench of this Court in Hanuman Mal v. Babu Lal, ILR (19601 10 Raj 1138 :--

'Haying regard to these specific provisions, it was mainly and solely for the court of the Civil Judge, Ratangarh, to decide about the validity or otherwise of the award and the arbitration proceedings, including the validity of the reference. No other court had jurisdiction in the matter.'

In the above case a suit was filed before the Civil Judge. Ratangarh, who made the reference to arbitration. After the award was filed he held that he had no jurisdiction as the value of the property involved was beyond his pecuniary jurisdiction. He wrote to the District Judge for the transfer of the case and the District Judge thereupon transferred the case to the Civil Judge Churu, who disposed of the suit. It was held that the steps taken by the Civil Judge, Ratangarh, in asking the District Judge to transfer the proceedings to the Civil Judge, Churu and the subsequent order by the District Judge in compliance with that requisition were entirely without jurisdiction and the Civil Judge, Churu had no jurisdiction to deal with, the matter at all.

9. The ratio of decision was that the suit being beyond the pecuniary jurisdiction of the Civil Judge, Ratangarh, he had no jurisdiction to refer the matter to arbitration. Nor could the Districts Judge by passing an order of transfer confer jurisdiction on Civil Judge. Churu where the suit had not been instituted in a court of competent Jurisdiction. The above decision is no authority for the proposition that a suit in which a reference to arbitration has been made cannot be transferred to another court under Section 24. Civil P. C. Learned counsel for the defendant was unable to cite any decision in which it might have been held that in view of the wordings of Section 31 of the Arbitration Act the powers of transfer under Section 24 of the Code of Civil Procedure cannot be exercised in a case in which a reference had been made to arbitration or in which an award had been filed. On the other hand, learned counsel for the plaintiff cited the following two decisions of the Allahabad High Court in which it was held that Section 31 of the Arbitration Act 1940 does not prevent the District Judge from transferring a case under Section 24 of the Civil Procedure Code. Both the decisions are by V. G. Oak, J. (as he then was). One is reported as Nand Kishore v. Moolchandra, AIR 1966 All 613 and the other is Union of India v. Rup Kishore, AIR 1967 All 504. The learned Judge quoted the following observations of the Supreme Court in Kumbha Mawji v. Dominion of India, AIR 1953 SC 313 :--

'the necessity for clothing a single court with effective and exclusive jurisdiction, and to bring about by the combined operation of these three provisions the avoidance, of conflict and scramble is equally essential whether the question arises during the pendency of the arbitration or after the arbitration is completed or before the arbitration is commenced.'

and observed.

'That appears to be the idea underlying Section 31 of the Act. Sub-section (4) of Section 31 requires that a single court should deal with arbitration proceedings at different stages. If the strict interpretation suggested by Mr. Sanyal is accepted, serious difficulties would arise in practice. Suppose, an additional court dealing with a case under the Act is abolished; or the Presiding Officer of a certain court becomes personally disqualified on account of bias or some other reason. It would be Impossible to conclude the proceedings under the Act. I do not think that the Legislature intended that Section 31(4) should have such a curious result. Such a result can be avoided by giving a liberal interpretation to Sub-section (4) of Section 31 of the Act. On this liberal interpretation the expression 'that court' would include any court to which proceedings have been validly transferred under the provisions of Section 24, Civil P. C. There is no clear indication either in Section 31 or Section 41 of the Act that Section 24, Civil P. C. should not apply to proceedings under the Act.'

10. In the above case the suit was Instituted in the court of Civil Judge who made a reference to arbitration. Before the award was filed the suit was transferred under Section 24. Civil P. C. to the Court of Additional Civil Judge (J. S. C. C.). The award was filed in that court; after the filing of the award it was transferred to another Additional Civil Judge who heard the objections against the award and dismissed it. An objection was taken in the High Court that the court which dismissed the objections against the award had no jurisdiction to do so because of Section 31 of the Act. The facts of the above case are similar to the facts of the present case.

11. I am accordingly of the opinion that the Additional District Judge No. 2, Jaipur City, has jurisdiction to hear and dispose of the objections against the award and if he rejects them, to pass a decree on the basis of the award.

12. The revision application is, therefore, rejected. In the circumstances of the case. I leave the parties to bear their own costs.


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