LAWS(MPH)-2010-9-82

SHRI ENTERPRISES Vs. BHARTIYA SANGH

Decided On September 17, 2010
SHRI ENTERPRISES Appellant
V/S
BHARTIYA SANGH Respondents

JUDGEMENT

(1.) BEING aggrieved by the order dated 23/12/2004 passed by District Judge, Ratlam in Case No.46/2003 MJC, whereby the review application filed by the respondents was allowed and the order dated 22.9.2004 was modified, present appeal has been filed.

(2.) SHORT facts of the case are that appellant is a Contractor. Appellant entered into an agreement with the respondents. Since some dispute arose, therefore, application was filed by the appellant under Section 11(6) of the Arbitration & Conciliation Act for appointment of Arbitrator. Vide order dated 14.8.2002 learned Court below directed the respondents to appoint the Arbitrator and it was further directed that in case respondents fail to appoint the Arbitrator then the Court will appoint. Against the said order respondents approached this Court in M.A.No. 1386/2002, which was allowed vide order dated 6.11.2003 with a direction to the learned Court below to pass the fresh order after hearing the parties. In compliance of the order passed by this Court learned trial Court after hearing the parties passed the order dated 22.9.2004, whereby application filed by the appellant was allowed and it was directed that each of the parties shall appoint one Arbitrator and the Arbitrator shall decide all the disputes between the parties, After the order an application was filed by the respondents for review the order under Section 151, 152 CPC, wherein it was prayed that the order dated 22.9.2004 be recalled. After hearing the parties application was allowed and the order was recalled and it was directed that the disputes between the parties shall be referred to General Manager, who shall refer the matter for arbitration. Being aggrieved by the impugned order, whereby the order dated 22.9.2004 was recalled, present appeal has been filed.

(3.) FROM perusal of the record it appears that appellant was the Contractor with the Railways and some dispute has arisen between the parties, which is amounting to Rs. 1,35,457/- and dispute is of the year 1996. In the matter of Parsion Devi Vs. Sumitri Devi, (1997) 8 SCC 715, wherein Hon'ble Apex Court held that if there is any mistake or error apparent on the face of the record, in that case powers under Order 47 Rule 1 of CPC can be exercised and error, which is not self evident and does not require a process of reasoning, then it can hardly be said that error apparent on face of record justifying the Court to exercise its power of review under Order 47 Rule 1 CPC. It was further held that in exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". In the present case in the review application filed by the respondent it was pointed out by the respondent to the learned Court below that Clause No.63 and 64 of general conditions of the contract could not be brought to the notice of the Court. When this fact was brought to the notice of the Court the earlier order dated 22.9.2004 was recalled by the Court and the impugned order has been passed. Thus, the order was recalled because there was a mistake apparent on the face of the record and it was not a erroneous decision, which was reheard and corrected. It the facts and circumstances of the case appeal filed by the appellant has no force and is hereby dismissed. However, keeping in view the nature of the dispute and the year when dispute arose respondent is directed to take appropriate steps forthwith so that the matter can be resolved at an early date.