BHAIYALAL GHURATIA Vs. SAWAI SINGHAI PANNALAL

JUDGEMENT

(1.) THIS is an application for revision under Section 115, Civil P.C. The applicant and non-applicants 1 and 2 together entered into an agreement dated 9th November 1940 for carrying on a certain factory. Clause 10 of that agreement was an arbitration clause which provided for the appointment of non-applicant 3 to arbitrate in respect of disputes and differences arising if any between the applicant and non-applicants 1 and

(2.) INTER se. Such disputes and differences did arise and: while the proceedings were before the arbitrator, the applicant applied to the Subordinate Judge under Section 5, Arbitration Act (10 of 1940), for leave to revoke the authority of the arbitrator. An order was accordingly made against which however non-applicants 1 and 2 preferred an appeal before the Additional District Judge who set aside that order. It is against that order of the Additional District Judge that the applicant has filed this application for revision. 2. The applicant's contention is that no appeal lay against the order of the Subordinate Judge and that the Additional District Judge acted without jurisdiction in setting it aside. 6 The contrary has, However, been held by the learned Additional District Judge who took the view that appeal did lie, and this is the view which the counsel for the non-applicants has propounded before me. It is a well settled principle that a right of appeal must be given by express enactment and cannot be implied. This is what was held by their Lordships of the Privy Council in Rangoon Botatoung Co Ltd. v. The Collector Rangoon (13) 40 Cal. 21 following the dictum of Lord Bramwell in, Sandback Charity Trustees v. The North Staffordshire Railway Co. (1877) 3 Q.B.D. 1 to the following effect: An appeal does not exist in the nature of things. A right of appeal from any decision of any tribunal must be given by express enactment. In Narayan Ballal v. Secretary of State (96) 20 Bom. 803 it has been held following the decision in Attorney-General v. Sillem (1864) 10 H.L.C. 704 that no right of appeal can be given except by express words. Section 39, Arbitration Act, provides that an appeal shall lie from certain orders there specified, and from no others. But the order allowing leave to revoke the authority of an appointed arbitrator under Section 5, ibid, is not one of the orders mentioned in that section as being appealable. The learned Counsel for the non-applicants however contends that an order allowing leave to revoke the authority of an appointed arbitrator is virtually "an order superseding an arbitration" and falls within the contemplation of Section 39(1)(i) and is therefore appealable. This argument entirely ignores the scheme which runs through the Act and the sense in which the particular expressions are used there. An order superseding the arbitration arises to be made under Sections 19 and 25, ibid, and is not the same thing as an order allowing leave to revoke the authority of an appointed arbitrator under Section 5. Sections 19 and 25 specify circumstances in which "an order superseding the arbitration" can be made, and it is that particular meaning which that expression must be taken to convey. It is a cardinal rule of construction that the same words and the same expressions occurring in. a statute must ordinarily be given the same signification. This is what has been held for instance in Namdeo v. Kesheo A.I.R. 1938 Nag. 59; Achhru Mal v. Balwant Singh A.I.R. 1937 Lah. 178 and Ganpat Kinushet v. Vithal Bhikan A.I.R. 1942 Bom. 57. The argument of the learned Counsel for non-applicants proceeded on the supposition as if, when leave is given under Section 5 to revoke the authority of an arbitration, the arbitration itself stands in effect superseded. But that is not so as would appear from Section 12(2)(a), ibid, which envisages the appointment of an arbitrator by Court in place of the appointed arbitrator whose authority has been revoked. This necessarily presupposes that the supersession of the arbitration has not resulted.

(3.) THERE were good reasons for the Subordinate Judge to allow the applicant's application for leave to revoke the authority of the appointed arbitrator, Gulabchand. I allow the application for revision with costs and set aside the order of the Additional District Judge restoring that of the Subordinate Judge. Counsel's fee Rs. 25.