UNION OF INDIA Vs. LAKSHMI NARAYAN SINHA

JUDGEMENT

(1.) THE defendants of Title Suit no. 92 of 1967, 74 of 1977 who are the petitioners here, have attacked the order dated 14th January, 1980, passed by the learned Subordinate Judge, Patna, by which the reference to an arbitrator, namely, Shri L, T. Jaichandran, Superintending Surveyor of Works, 20 Ashoka Road, New Delhi, has been recalled and Shri Sheo Chandra Prasad, a retired Judge of this Court, has been appointed an arbitrator on the ground that the arbitrator, initially appointed, had not submitted his award wtihin the period or limitation and no prayer was made for extension of time.

(2.) THIS is a peculiar civil revision application on behalf of the Union of India where the learned Senior Standing Counsel for the petitioners wants a relief from this Court which he had not wanted in the court below. I fail to see as to how this Court, in its revisional jurisdiction, can travel beyond the scope of section 115 of the Code of Civil Procedure and go into matters which are not relevant for the purpose of testing the jurisdictional error committed by the court below. Some interesting facts have, in the fitness of things, to be noted.

(3.) LEARNED Senior Standing Counsel for the Union of India, arguing in support of this application here, prays that an order be passed by this Court in supersession of all previous orders either of this Court or of the court below holding that this was a case where an arbitrator should have been appointed and must be appointed in terms of clause 25 of the agreement between the parties and not under section 20(4) of the Act. Such an argument was not cenvassed in the court below. This was not the point at issue between the parties before the learned Subordinate Judge. It is for the first time that, with his usual ingenuity, Mr. Ashwani Kumar Sinha has sought to side-track the issue involved and that also for a peculiar reason which appears from the civil revision application itself. In paragraph 7 of the instant civil revision application it has been stated categorically by the petitioners themselves that on the 5th of February, 1980, Shri L. T. Jaichandran wrote to the Chief Engineer (Civil) that he had resigned from the office of the arbitrator and that he did not like to continue as an arbitrator in the case. On such an averment the civil revision itself would have become infructuous and has become infructuous. The only point that was taken on behalf of the petitioners in the court below was and I think rightly, that the court below has even suo motu powers in appropriate cases to extend the time for filing the award. In view of the fact that the arbitrator appointed, as already stated above, under section 20 (4) of the Act, having resigned from the office and having refused to act any further as the arbitrator, the question of extension of time for submission of award by him was no longer available to the petitioners. It is, therefore, that learned Counsel for the petitioners now prays that this Court do order that an arbitrator should be appointed not in pursuance of section 20(4) of the Act but in pursuance of clause 25 of the agreement itself. I am afraid, this point is not available to learned counsel for the petitioners for the simple reason that in the earlier civil revision application, of which I have made a mention earlier, this Court had specifically held that it was a case in which the court should have acted under section 20(4) of the Act, It was a mere coincidence that the name of the arbitrator was agreed upon by learned counsel for the parties. Merely because the arbitrator was appointed with the agreement of the parties, the case cannot, in law, be said to be taken out from the purview of section 20(4) of the Act.