UNION OF INDIA Vs. J BHASKARA RAO

JUDGEMENT

(1.) This is an application filed by the respondents is A.A.No. 43 of 1997 under Order IX Rule 13 of the Code of Civil Procedure and Rule 8 of the High Court notification dated 24-07-1996 issued under the Arbitration and Conciliation Act, 1996, to set aside the ex parte order dated 06-08-1999.

(2.) One Mr. P.G. Choudhury, Assistant Engineer (Construction), South Central Railway sworn to the affidavit stating that in the arbitration application, the matter was taken up for hearing before the Hon'ble the Chief Justice and later on the matter was made over to another learned Judge, who is dealing with the original side matters. When the matter came up for hearing on 21-1-1999, the learned Judge passed an order directing the applicant for payment of the admitted amount on or before 1-2-1999, and accordingly the said amount was paid by way of cheque to the respondents. Later on, when the matter again came up for hearing the applicant in A.A.No. 43 of 1997 had engaged an advocate from Madras to argue the case and the learned Standing Counsel of the applicant represented in the Court that a similar arbitration application No. 14 of 1997, raising similar points of law, had been referred to a Division Bench and this case may also be adjourned till the disposal of A.A.No. 14 of 1997 and accordingly the matter was adjourned directing as and when the A.A.No. 14 of 1997 is disposed of, post this case, inspite of the same, "it is not known how the A.A.No. 43 of 1997 came up for hearing before the learned Judge Sri (Justice) R.M. Bapat." All the proceedings mentioned above had taken place after passing of the unsigned order passed by the High Court dated 17-12-1998. It appears that the learned Judge had not signed the order as the applicant's advocate appeared in Court on 17-12-1998 and informed the Court that the matter is required to be argued on the merits. Subsequently, the matter again came up before the learned Judge on 6-8-1999 under the caption "judgment". The applicant's advocate informed the Chief Engineer to depute their staff with records to the High Court on 6-8-1999. Accordingly Sri Marga Bandu, Assistant Engineer and Sri Ch. S.V. Prasad Rao, Office Superintendent came to the High Court on 6-8-1999 with records to the Court Room No. 19. As there were number of Division Benches presided over by the learned Judge, the learned Standing Counsel instructed the officials to watch the situation and inform him as and when the learned Judge sits single and took up the matter. All the Division Bench matters were over by 03-00 p.m. and immediately Prasad Rao, Office Superintendent, informed the learned Standing Counsel that the arbitration application will be reaching in the Court Room No. 19 and even before the learned Standing Counsel reached the Court the application was called and the learned Judge signed the order, which was already made on 17-12-1998. Then the learned Standing Counsel represented to the learned Judge. Learned Judge informed him that he has already signed the order. Therefore it was advised the applicant to file a proper application. When the said representation was made, Mr. M.R.K. Choudary, learned Counsel for the respondent was also present. In view of the same, it is eminently a fit case to set aside the ex parte order passed by this Court on 6-8-1999, wherein the learned Judge signed the order dated 17-12-1998 on 6-8-1999 appointing an arbitrator. It is further averred that the learned Standing Counsel was ready to argue the case on 6-8-1999, but he could not address the arguments for the reasons mentioned above,

(3.) In opposition of the same, the respondent in the application filed a counter. As the applicant has not disclosed in the affidavit how he came to know about the facts as to what transpired on the relevant dates referred to in affidavit, was admittedly not present on all those dates. Therefore, the affidavit filed in support of the application cannot be taken note of. There is no verification. As such, the facts narrated in the affidavit, whether they are based on personal knowledge or based on records and without disclosing the source of information, applicant cannot attribute motives for passing the impugned order. The docket order does not support the averments made in the affidavit. After the Hon'ble the Chief Justice released the matter from his list, the matter is posted before another learned Judge. Thereafter the matter was listed on 26-10-1998 and thereafter it was adjourned on several times i.e., 4-11-1998: 12-11-1998:16-11-1998 and also on 24-11-1998. As none appeared on 24-11-1999 the matter was directed to be listed on 1-12-1998, the learned Standing Counsel for the applicant was absent, when the matter was called on 1-12-1998, the matter was directed to be posted 'for orders' on 2-12-1998. Thereafter, the matter was adjourned to 9-12-1998, 14-12-1998, 17-12-1998. As none were present, the learned Judge passed orders on 17-12-1998, without signing the order, the matter was directed to be called on 24-12-1998. Thereafter, the matter was listed on 29-12-1998 and on that day it was directed to be listed as a first case on 18-1-1999. After the orders were passed to pay the admitted amount, the matter was underwent several adjournments. When the matter was taken on 6-8-1999, the order, which was dictated on 17-12-1998 was signed after passing an order on 6-8-1999; and a retired learned Judge of this Court was also appointed as an arbitrator to decide the disputes between the parties, that pursuant to the notice of the arbitrator, the parties appeared before the Arbitrary Tribunal on 4-9-1999. At that time, learned Standing Counsel for the railways took time and the matter was adjourned. Meanwhile, the present application is filed on 31-8-1999. It is also denied about the engagement of an advocate from Madras. The deponent has also not stated how a representation was made to adjourn the matter and the pendency of the A.A.No. 14 of 1997. It is also denied the understanding arrived at between both the parties as alleged in Para 5 of the affidavit filed in support of the petition: and the presence of Mr. Marga Bandhu and Mr. Prasada Rao, who are alleged to have been present in the Court, have not actually filed the affidavit setting out these facts. It is also a fact that after signing the order, learned Standing Counsel appearing for the railways appeared and made a request, but it is denied that the Hon'ble Court advised the applicant to file, an application for setting aside the dismissal order and Mr. M.R.K. Choudary, learned Counsel for the respondent was present when the order was signed. It is further contended that the application filed under Order IX Rule 13 CPC is not maintainable. The order of appointment of an arbitrator passed in Arbitration Application No. 43 of 1997 is not a judicial order and the Civil Procedure Code has no application to the order. Therefore, respondent prays for dismissal of the application.