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TMI Blog2002 (5) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... of the scheme and relevant provisions of the Act. - CIVIL APPEAL NO. 3620 OF 2002 - - - Dated:- 20-5-2002 - N. SANTOSH HEGDE AND D.M. DHARMADHIKARI, JJ. K. Parasaran, G. Umapathy, D. Joshi and Rakesh K. Sharma for the Appellant. P. Chidambaram, Rajiv Dutta, Rajat Navet and Pradeep K. Bakshi for the Respondent. JUDGMENT Santosh Hegde, J. - Leave granted. 2. This appeal is filed directly to this Court against the judgment and the order of the 10th Additional City Civil Judge, Bangalore made in Miscellaneous Appeal No. 6 of 2002, dated 18-4-2002. 3. The appeal before the City Civil Judge was against an interim order made by the Arbitral Tribunal and that the appeal was filed under section 37(2)( b ) of the Arbitration and Conciliation Act, 1996 (the Act ). The learned Civil Judge dismissed the said appeal. 4. The principal question that arises for our consideration is whether a revision petition under section 115 of the Code of Civil Procedure, 1908 (the Code ) lies to the High Court as against an order made by a civil court in an appeal preferred under section 37. If so, whether on the facts and circumstances of this case, such a remedy by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntertain an application for revision under section 115 because the High Court has no jurisdiction to entertain a revision where an appeal lies. In the said case, the Privy Council overruling an earlier Full Bench judgment of the Madras High Court held that an appeal against an order made by the civil court under the Madras Agriculturists Relief Act, 1938 is maintainable, therefore, the High Court could not have entertained a revision under section 115 which finding, in our opinion, does not help the appellant in the present case. Mr. Parasaran has also relied on a judgment of this Court in Shankar Ramchandra Abhyankar ( supra ) wherein this Court held that a revision in effect is in the nature of an appeal. Mr. Parasaran relying on this judgment argued that if revision is in effect an appeal, then the Act having prohibited a second appeal, any proceeding which is in the nature of an appeal will also be barred. We think this observation of this Court in the case of Shankar Ramchandra Abhyankar ( supra ) also does not apply to the facts of the present appeal before us. In the case of Shankar Ramchandra Abhyankar ( supra ), this Court noticed that the trial court had granted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f section 115 of the C.P.C." 9. But Mr. Parasaran contended that the said order is based on an earlier reported judgment of this Court in the case of Shyam Sunder Agarwal Co. v. Union of India [1996] (2) SCC 132. According to Mr. Parasaran, the Court in the case of Nirma Ltd. ( supra ) has erroneously founded its conclusion on the said judgment in Shyam Sunder Agarwal s Co. case ( supra ). The learned counsel argued that the case of Shyam Sunder Agarwal ( supra ) arose under the Arbitration Act, 1940 which Act had made the provisions of the Code specifically applicable to proceedings arising under the said Act in the civil court, whereas in the present Act such provision making the Code applicable is not found. Therefore, there is a substantial difference in law between the cases of Shyam Sunder Agarwal Co. ( supra ) and Nirma Ltd. ( supra ). Therefore, the order of this Court in Nirma Ltd. ( supra ) is not a good law, hence, requires reconsideration. 10. We do not agree with this submission of the learned counsel. It is true that in the present Act application of the code is not specifically provided for but what is to be noted is : Is there an expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appeal is not to any designated person but to a civil court. In such a situation, the proceedings before such court will have to be controlled by the provisions of the Code, therefore, the remedy by way of a revision under section 115 does not amount to a judicial intervention not provided for by Part I of the Act. To put it in other words, when the Act under section 37 provided for an appeal to the civil court and the application of the Code not having been expressly barred, the revisional jurisdiction of the High Court gets attracted. If that be so, the bar under section 5 will not be attracted because conferment of appellate power on the civil court in Part I of the Act attracts the provisions of the Code also. 14. Mr. Parasaran then contended that since it is an accepted fact that this Court also has the jurisdiction to entertain an appeal, this appeal should not be rejected on the sole ground that there is a remedy available by way of a revision before the High Court. In support of this contention, he relied on the judgment of this Court in the case of Shankar Ramchandra Abhyankar ( supra ) wherein it is noticed that this Court had entertained an appeal directl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot think that these factors will, in any manner, be compromised by approaching the High Court; more so in the background of the fact that the parties had already approached the High Court nearly three-times without raising any objection as to its jurisdiction or in view of its apprehension as to the security of the State. If the facts involving such sensitive matter could be handled by the High Court three-times earlier, we think the appellant can very well trust the High Court to protect such interest of the country in future proceedings also. Therefore, this argument of sensitivity or urgency in our opinion, will not improve the appellant s case so as to make an exception or permit the appellant to take a short-cut to this Court. Therefore, the above argument of the appellant should also be rejected. 16. For the aforesaid reasons, while holding that this Court in an appropriate case would entertain an appeal directly against the judgment in first appeal, we hold that the High Court also has the jurisdiction to entertain a revision petition, therefore, on the facts and in the circumstances of this case, we direct the appellant to first approach the High Court. For the said rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus : "When a question is stated to be referred to an established Court without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches." The true rule is said by Lord Simonds in R.M.A.R.A. Adaikappa Chettiar s case ( supra ) that "Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal." Provisions of section 37 bar second appeal and not revision under section 115. The power of appeal under section 37(2) against the order of Arbitral Tribunal granting or refusing to grant an interim measure is conferred on the Court. The Court is defined in section 2( e ) meaning the principal civil court of original jurisdiction which has jurisdiction to decide the question forming the subject-matter of the arbitration if the same had been the subject-matter of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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