STATE OF JAMMU AND KASHMIR Vs. EXECUTIVE ENGINEER

JUDGEMENT

(1.) THERE is much ado about nothing. These four appeals have been filed under clause 12 of the Letters Patent of this Court and are directed against the order rejecting the applicant's application for framing additional issues. Some facts are necessary in order to resolve controversy. Disputes arose between Irrigation Department and the respondent, these disputes were referred to an arbitrator who gave four awards. Awards were filed in this Court, State filed objections to the award. The learned single Judge, before whom the matter was pending framed four issues. After the framing of the issues, an application was made by the appellant-State in each case for framing additional issues and for recasting of the issues framed. The application was resisted by the respondent and the learned single Judge rejected the application. Against this rejection for framing of additional issues and for recasting of issues already framed, this appeal has been filed under clause 12 of Letters Patent of this Court. The preliminary objections taken is that the appeal was not maintainable in view of the bar created by S. 39 of the Arbitration Act, hereinafter referred to as Act. The matter was heard by Division Bench of this Court comprising of Justice S. C. Mathur, the then Chief Justice and Mr. S. M. Rizvi the then Judge of this Court. The Bench framed the following questions and referred the matter to the Full Bench of this Court :-

(2.) THE questions were framed on the assumption that there was a cleavage of opinion between various Benches of equal strength of this Court and there was no pronouncement from the Hon'ble Supreme Court which could clinch the issue. After its reference, the matter was listed before Full Bench of this Court comprising of Justice S. M. Rizvi, Justice B. A. Khan and Justice A. M. Mir. THEy returned the reference unanswered for the reasons given in their Lordships' order dated 24th April, 1994 THE matter was placed before Hon'ble the Chief Justice who on 27th April, 1994, directed that the matter be listed before the Division Bench.

(3.) THE applicability of the letters patent and also various provisions of the Civil Procedure Code has remained controversial. Various High Courts have held that in spite of bar created under Section 39 of the Act, appeals are maintainable under the Letters Patent, whereas various High Courts have taken a different view. This High Court also has taken different views as is pointed out by the Division Bench of this Court, which heard the matter earlier and referred the matter to the Full Bench. In Union of India v. Sardar Mohinder Singh and Co., 1971 J and K LR 101 : (AIR 1971 J and K 10) it was held that the bar created by Section 39 of the Arbitration Act does not make the Code of Civil Procedure inapplicable so far as the maintainability of the appeal is concerned. It held that words in Section 39, and from no others are incapable of taking into their sweep an order passed either under the Code of Civil Procedure or under any law for the time being in force, but the controversy has come to an end by a judgment of the Supreme Court reported in (1993) 3 SCC 1, titled State of West Bengal v. M/s. Gourangalal Chatterjee, relying on its earlier judgment reported in AIR 1962 SC 256 : (1962 All LJ 1) the Court held that if an order is not covered under any Clauses of Section 39 of the Arbitration Act, no appeal shall lie. In the matter, the controversy before the Supreme Court in 1962 was whether the second appeal would lie in an arbitration proceedings before the Letters Patent Bench of the High Court. In this case, the Court held at page 262 of AIR :- "Prior to 1940 the law relating to contractual arbitration (except in so far as it was dealt with by the Arbitration Act of 1899) wascontained in the Code of Civil Procedure and certain orders. passed by Courts in the course of arbitration proceedings were made appealable under the Code of 1877 by S. 588 and in the Code of 1908 by S. 104 In 1940, the legislature enacted Act X of 1940, repealing Sch. 2 and S. 104(1), Cls. (a) to (f) of the Code of Civil Procedure, 1908, and the Arbitration Act of 1899 By S. 39 of the Act, a right of appeal was conferred upon litigants in arbitration proceedings only from certain orders and from no others and the right to file appeals from appellate orders was expressly taken away by sub-sec. (2) and the clause in S. 104 of the Code of 1908 which preserved the special jurisdiction under any other law was not incorporated in S. 39 THE section was enacted in a form which was absolute and not subject to any exceptions. It is true that under the Code of 1908, an appeal did lie under the Letters Patent from an order passed by a single Judge of a Chartered High Court in arbitration proceedings even if the order was passed in exercise of appellate jurisdiction, but that was so, because, the power of the Court to hear appeals under a special law for the time being in operation was expressly preserved.THEre is, in the Arbitration Act, no provision similar to S. 4 of the Code of Civil Procedure which preserves powers reserved to Courts under special statutes. THEre is also nothing in the expression "unauthorised by law to hear appeals from original decrees of the Court" contained in S. 39(1) of the Arbitration Act which by implication reserves the jurisdiction under the Letters Patent to entertain an appeal against the order passed in arbitration proceedings. THErefore, in so far as Letters Patent deal with appeals against orders passed in arbitration proceedings, they must be read subject to the provisions of S. 39(1) and (2) of the Arbitration Act."