DELHI DEVELOPMENT AUTHORITY Vs. JEEVAN BUILDER

JUDGEMENT

(1.) This appeal under Section 39 of the Arbitration Act, 1940 arises out of an order passed by a learned Single Judge of this Court whereby objections under Sections 30 and 33 of the said Act, filed by the appellant against the Award made by the Sole Arbitrator, have been rejected and the Award made a Rule of the Court.

(2.) Appearing for the appellant, Mr. Bhupesh Narula, Advocate argued that the order passed by the learned Single Judge was legally unsustainable in as much as the same was passed in the absence of the appellant. He drew our attention to the impugned order to urge that neither party was present on 4.10.2005 when the matter came up for hearing before the learned Single Judge. Instead of dismissing the objections/application to set aside the Award for non prosecution, the learned Single Judge disposed the same of on merits, which course was not legally permissible. It was further submitted that taking the order in question to be one of dismissal for non prosecution, the appellant had filed an application for recall of the said order, which too was dismissed by the learned Single Judge in terms of an order dated 21.10.2005 on the ground that the order sought to be recalled was passed on merits of the case and not one dismissing the objections for non prosecution. While doing so, the learned Single Judge, no doubt, declined to vary the order even on merits but that was, according to Mr. Narula, wholly immaterial. The question was whether an order disposing of the application for setting aside the award could have been passed on merits when none of the parties were present before the Single Judge. If the disposal on merits was not legally permissible, the least which the learned Single Judge could have done was to treat the order of dismissal passed by him as one of dismissal for non prosecution so that the order could be recalled at the instance of the appellant upon proof of sufficient cause for non-appearance of the appellant and his counsel and the matter set down for final hearing. Inasmuch as the learned Single Judge failed to do so and stuck to his view on the merits of the case while hearing the application for recall, he committed an error that required to be corrected.

(3.) On behalf of the respondent, Mr. J.P. Gupta, Advocate fairly conceded that in a case where neither party was present when a suit or appeal was called on for hearing, no pronouncement on merits of the controversy could be made by the Court. The proper course for the Court, according to the learned counsel, in such a situation was to dismiss the case for non prosecution. Mr. Gupta however argued that the objections filed by the appellant had been dismissed for non prosecution on two earlier occasions and restored on its applications. Since the appellant was not cooperating and had absented itself deliberately, the Court was left with no alternative except to examine the matter on merits and dispose the same of in the absence of the parties.