VINEET KUMAR Vs. BHAGWAN DEI

JUDGEMENT

(1.) THIS application is palpably based on a false allegation. It has been stated in para 14 of the affidavit in support of the review applications : " That against the order of the District Judge, Rampur, the applicant filed the Civil Revision No. 455/76 in this Hon' ble Court which was decided on merits without the hearing of the counsel for the applicant Sri H. S. Nigam. The case was not actually argued by Sri H. S. Nigam as it appears from the judgment and ordersheet. Only the rulings mentioned in the judgment of the lower court below which were cited, have been mentioned in the court' s judgment at the High Court." A reference to the judgment and ordersheet itself will show that this allegation is absolutely incorrect. The ordersheet dated 4th April, 1977 has clearly mentioned that Shri H. S. Nigam, for the applicant, and Shri H. S. Joshi for the opposite party were heard in part and then it was directed to be listed as a part- heard case on the next date. The ordersheet dated 6th April, 1977 again clearly mentions that Shri H. S. Nigam for the applicant and Shri H. S. Joshi for the opposite party were further heard and, thereafter the revision was dismissed but no order as to costs was made. A reading of the judgment will also show that I have referred to Shri H. S. Nigam' s contentions and I have clearly stated therein that the learned counsel for the parties were heard. In the face of these facts, the allegation made in the new application supported by an affidavit was wholly uncalled for and it is particularly more regrettable that the applicant is said to belong to the legal profession. However, as regret has been expressed by the applicant, it is not necessary to pursue this matter.

(2.) THE office has reported that there is a delay of 12 days in moving this application for review. In my opinion, I should condone the delay in the facts of the case and deal with the review petition on merit.

(3.) IT is true that when the case was originally argued the amendment in S. 32 of the Arbitration Act effected by S. 43 of the Specific Relief Act had not been brought to my notice. However, I do not think that it would have made any difference at all to my verdict if the said amendment had been brought to my notice at the original hearing of the revision. As will be clear from a reference to the Law Commission' s Report dealing with this amendment, it was done only with a view to resolve the difference of opinion which had crystallised between the Madras and the Patna High Courts on the one side and the Nagpur and the Calcutta High Courts on the other on the question whether a separate suit would be maintainable to enforce the award. The Madras and Patna High Courts took the view that such a separate suit was not maintainable but the Nagpur and Calcutta High Courts took the view that the bar contained in the unamended S. 32 of the Arbitration Act related only to a challenge to the award and not to the enforceability of the award. They, therefore, held that a separate suit to enforce the award was maintainable. In view of this difference, the Commission recommended that the word ' enforced' should also be inserted in S. 32 of the Arbitration Act and that was done by S. 43 of the Specific Relief Act which inserted the word ' enforced' after the words ' nor shall any arbitration agreement or award be' already occurring in S. 32 of the Arbitration Act. I have already reproduced S. 32 in my judgment in the revision but in view of the fact that S. 43 of the Specific Relief Act 1963 had not been brought to my notice at the said stage, the reproduction was of the old unamended section and in view of S. 43 of the Specific Relief Act the word ' enforced' should have also found a place in the said section. However, as I have stated above, that expression was put merely to clarify that no suit would lie for enforcing the award. This was done to negative the effect of the views which the Nagpur and Calcutta High Courts had taken.