NEW INDIA ASSURANCE COMPANY LTD Vs. VIDHICHAND GUPTA

JUDGEMENT

(1.) THE short question of law to be decided in this appeal rests primarily on the interpretation of Section 34 of the Arbitration Act, but it is necessary to state first few simple and short facts pertinent to the question mooted for decision in this appeal.

(2.) WHAT is not denied and appears established beyond dispute on the face of records is that on 27-9-1976, the respondent instituted a suit in the Court of District Judge at Morena, claiming compensation from the defendant/appellant for damages suffered by his truck, Registration No. M.P.W. 1621, in respect of which the plaintiff had taken out a comprehensive insurance policy from the defendant/appellant He alleged that as a result of the accident which took place on 22-11-1975, the truck was damaged and in terms of the insurance policy, the defendant was bound to compensate the plaintiff to the extent of Rs. 24,991.65. It appears from the Order sheet of the suit that 16-11-1976 was fixed for filing written statement by the party, namely, the Insurer. However, what happened on 16-12-1976 is of signal relevance to the instant lis and indeed on both sides, long arguments have been advanced on the import and purport of the order passed on that date in the suit. It is the admitted position on facts that on 16-11-1976, the Presiding Officer of the Court was absent, and it was, therefore, submitted by Shri Dubey, appellant's counsel, that whatever order was recorded on that date-was done by the Reader of the Court to which the Officer in-charge of the Office of the on that date, in the absence of the District Judge, subscribed his signature. More about it later, but I proceed further to refer to few more facts to complete the narration of events. It also appears from the records of the suit that on 8-12-1976, an application under Section 34 of the Arbitration Act was filed in the suit in which it was stated that under the terms of the Policy of insurance, the parties were bound to refer the dispute for decision to an Arbitrator and the suit was liable to be stayed and it was further averred in para 4 of the application that the defendant had not filed any written statement and had not taken any steps in the suit because on 16-11-1976, Presiding Officer of the Court was on leave. It is also stated in para 4 that no instructions had been obtained till then from the defendant and the objection to the suit is being filed after receiving necessary instructions. The Policy of insurance was also filed and it was submitted that in accordance with the terms of the Policy, the defendant/objector were prepared to do the needful. To this objection, filed under Section 34 aforesaid, a reply was filed on 20-12-1976 by the plaintiff, wherein the main contention raised was that the objection under Section 34 was misconceived and not maintanable inasmuch as the defendant/objector had "already taken steps in the proceeding prior to the objection." Arguments were heard on the "objection" and the "reply" advanced by counsel for parties on 22-12-1976 and, thereafter, the impugned order was rendered on 12-1-1977 rejecting the "objection", namely, the application made under Section 34 by the defendant.

(3.) I propose to examine first counsel's second contention that the order recorded in the suit on 16-11-1976 that counsel for the defendant had filed power and the counsel had made a prayer for time for filing written statement cannot impair the right available to the defendant/appellant under Section 34 because the Court was not constituted on that date for the purpose of taking steps by parties in the suit Indeed, it is also his contention that the Officer in-charge of the Court who had signed the order was not competent to record the order inasmuch as he was not authorised to do so by law as manifested in the provisions of Section 18 and rule 132 aforesaid. It is true, as contended by Shri Dubey, that Section 18 carefully circumscribed the power of the Judicial Officer in-charge of the District in the temporary vacancy in the Office of the District Judge and vests in him limited power of the Office of District Judge. This appears very clear from the language of the Section which I propose to quote in extenso :