CHIEF SECRETARY, J&K GOVT Vs. AB GANI DAR

JUDGEMENT

(1.) THIS Civil first appeal is directed against the judgment and decree dated 9 -7 -74 of the Sub Judge (C. J. M.) Srinagar in a suit for rendition of accounts.

(2.) THE facts leading to this appeal are as follows: - The plaintiff respondent instituted suit for rendition of account in respect of the works executed by him pursuant to an agreement executed between him and the Divisional Engineer Hydraulic Depvment. The Divisional Engineer who is defendant No. 2 appeared before the trial court and raised a preliminary objection that the cognizance of the suit by the civil court was barred in terms of section 9 of the Code of Civil Procedure in as -much -as there was an arbitration clause in the contract agreement which excluded the jurisdiction of the civil court. He made an application under section 34 of the Arbitration Act for stay of the suit and for referring the matter to the arbitrator designated in the agreement. Clause 20 of the conditions of the agreement provides as follows: -

(3.) THIS objection prevailed with the trial court and in pursuance of the arbitration clause the dispute was referred to Peer Zada Ghulam Nabi the then Chief Engineer Flood Control Department. It is pertinent to mention here that before the filing of the award the said Peerzada Ghulam Nabi was transferred as Commissioner Urban Development, parties, however, showed their willingness to his continuing as arbitrator. He made the award and filed it on 14 -11 -73. According to the award the claim to the extent of Rs. 75415.65 was allowed in favour of the plaintiff respondent. His other claims were rejected. On 19 -1 -1974 Mr. Abdul Hamid Qarra Advocate styling himself as counsel for the defendants moved an application averring therein that the award was erroneous on facts and law was not acceptable to the defendants who desired to challenge the same. He requested the court to issue notice to the defendants in this behalf. Copy of this application was given to the counsel for the plaintiff respondent for filing his objections. The Sub Judge did not pass any order on the application one way or the other. He treated the application moved by Mr. Qarra as one for setting aside the award. The Judge in the and while delivering the judgment proceeded to observe that there was no manner of doubt that Mr. Qarra lhad notice of the filing of the award and its contents even on 19 -1 -1974, when he made the application; that in accordance with rule 5 of Order 3 of the Code of Civil Procedure notice to the pleader being notice to the party there was therefore no necessity of issuing any further notice to the defendants. Even on 19 -1 -74 or thereafter no objections were filed by the defendants within the statutory period of 30 days. He also took the view that in the application dated 19 -1 -1974 there was no allegation of any misconduct against the arbitrator nor was there any ground set -forth in the application for setting aside the award. He therefore over ruled the contention of Mr. Qarra and made the award rule of the court. As a result of this decree for Rs. 75425.65 was passed against all the defendants. The Chief Secretary who is defendant No. 1 in the suit and against whom also the decree has been passed has come up in appeal before the court.