9911796707
TMI Blog1996 (1) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench for deciding the maintainability of the Revision Petition filed under Rule 36A of the Rules for the Administration of Justice and Police in the Khasi and Janitia Hills 1937, against the appellate order dated March 28, 1968 passed by the learned Additional Deputy Commissioner, East Khasi Nille. Shillong arising out of the order dated July 21. 1984 passed by the Assistant to the Deputy commissioner at Shillong rejecting the objections made Under Section 30 of the Arbitration Act and making the award in question, a rule of court. 3. A contract was awarded to the appellant by the respondent for levelling of the sites at Kashipur near Silcher, In view of dispute between the parties on the claim of the appellant for the aforesaid work, the dispute was referred to the sole arbitrator being Engineer-in-Chief, Defence Headquarters, New Delhi by an order of Court. The sole arbitrator after hearing the parties made a non speaking award on July 28, 1982, for a sum of ₹ 6,72,645.56 in favour of the appellant with interest on the said sum at 10% from the date of award till realisation. 4. On August 11, 1982 the appellant filed the award in the Court of the Assistant to the Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a decision of the Pepsu High Court in Lai Chanel v. Dev Raj AIR (1951) Pepsu 115 holding that against an appellate order Under Section 39 of the Arbitration Act, revision lies before the High Court, the Division Bench of the Gauhati High Court answered the reference in favour of maintainability of the said revision application before the Gauhati High Court by indicating that the contrary view expressed by a Single Bench of the said High Court in D.S. Narula Co. 's Case was incorrect. The Division Bench directed that the revision case being maintainable should be disposed of on merits by the appropriate Single Bench of the High Court. 9. For the purpose of appreciating rival contentions of the parties to this appeal, it would be appropriate to refer to the provisions of Sections 39 40 41 and 47 of the Arbitration Act. 39. Appealable orders - (1) an appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing an order : An order (i) superseding an arbitration (ii) on an award stated in the form of a special case : (iii) modifying or correcting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. These Rules extend to the whole of the United Khasi Janitia Hills Districts excluding the areas which were known as the khasi State before the commencement of the Constitution of India. Rule 31 of the Civil Rules framed under Chapter 4 of the Rules deals with the exercise of original jurisdiction by the Deputy Commissioner and his Assistants. It appears that there is no dispute that the Assistant to the Deputy Commissioner was competent to entertain an arbitration award filed before it for the purpose of making it a rule of court. There is also no dispute that against such order of the Assistant to the Deputy Commissioner the party aggrieved by the order making the arbitration award a rule of court can prefer an appeal before the Deputy Commissioner. Rule 31 and Rule 36A of the Rules are set out hereunder : 31. Exercise of original jurisdiction by Deputy Commissioner and his Assistants. The Deputy Commissioner and his Assistants shall not ordinarily hear suits triable by sardars and dalais or other duly recognised village authorities, but they have a discretion to do so when they think right: and suits, which under these rules the village authorities cannot try, must be tried ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Janitors cannot be accepted. Such contention does not appear to have been raised before the High Court. Moreover, no material has been placed before us to indicate that the Rules are applicable only to Khasi or Janitia tribes. It appears to us on a reference to Chapter IV of the Rules dealing with administration of civil Justice that a special forum for trial of civil disputes has been made in respect of the area where Rules have been made applicable. The specific provision of referring all disputes to village Panchayats in which the parties are indigenous inhabitants of the hill in Rule 32 only indicates that such reference is to be made in respect of all indigenous inhabitants of the hill and not not only in respect of members of Khasi or Janitia tribes. Similarly, in Rule 36A, the High Court has been made a court of appeal from an original decision of the Deputy Commissioner if the suit involves question of tribal rights and customs. Such provision indicates that the original decision of Deputy Commissioner may be in respect of other matters and in respect of persons other than Khasi and Janitia tribals. 14. The appellant filed the award in the court of the Assistant to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of assailing the correctness of the appellate order Under Section 39 of the Arbitration Act. Such revisional application under Rule 36A is alien to the scheme under the Arbitration Act. 17. The learned Counsel for the appellant has submitted that Rule 36A contemplates revision of original or appellate decision of the Deputy Commissioner because under the Rules, there is no provision to approach the High Court against the appellate decision of the Deputy Commissioner. As a matter of fact, appeal before the High Court is contemplated against original decision of the Deputy Commissioner (i) if the value of the suit be rupees five hundred or over, or (ii) if the suit involves question of trial right or custom or (iii) if right to and possession of immovable property. As Rule 36A contemplates revisional power of the High Court entirely in a different situation, the principle for exercise of revisional powers within the ambit of Clauses (a) to (c) of Section 115, may not be strictly applicable to revisional power contemplated under Rule 36A of the Rules. 18. It has been contended by the learned Counsel for the appellant that the Assistant to the Deputy Commissioner and the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the District Court being subordinate to High Court, the High Court can exercise revisional jurisdiction against such appellate order of the District Court and finality attached to such order does not oust the revisional jurisdiction of the High Court. 20. Mr. Reddy has submitted that Section 39(2) only indicates that no second appeal from appellate order Under Section 39 of the Arbitration Act can be filed. Because of such express bar of a second appeal, this Court in Mohinder Supply Co. a case (supra) has held that such bar of second appeal will also apply to any form of second appeal and even by way of appeal under Letters Patent. In the instant case, only revisional application under Rule 36A of the Rules has been made. 21. Mr. Reddy has submitted that considering socio political and economic situation prevailing in the United Khasi Hills District and Janitia Hills District, the Rules were framed for administration of justice and police in the said area. There is no dispute that such Rules are applicable in the area in question. Such Rules provide for forum for resolution of civil and criminal cases. In view of such provisions in the Rules the Assistant to the Deputy C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the trial Judge decreed the suit for eviction and the appeal court confirmed the decision Under Section 34. In exercise of revisional jurisdiction Under Section 35(i) of the said Act, a Single Bench of the High Court reconsidered the decision upon reappreciation of evidence and on such reconsideration interfered with the impugned decision of the appellate authority affirming the decision of trial Judge. This Court has held by the majority decision in the said case that distinction between appeal and revision is a real one. A right of appeal carries with it right of rehearing on law as well as on fact unless the statute conferring right of appeal limits the rehearing in some way. It has been indicated by this Court that power of revision is generally to a superior court so that it may satisfy itself that a particular case has been decided according to law. The phrase according to law appearing in Section 35 of the said Rent Act, according to the majority decision of this Court, refers to the decision as a whole and not to be equated to errors of law or of fact simplicitor. It has been indicated that all that the High Court can see that there has been no miscarriage of justice and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal is provided for under the Rules. Even if there was any provision for filing an appeal from such appellate order of the Deputy Commissioner under the Rules, such second appeal, being expressly barred by Section 39(2) of the Arbitration Act, would have been incompetent. In the facts and circumstances of the case, revision application under Rule 36A is to be considered in conformity with Section 115 of the Code of Civil Procedure. Such limited application of revisional jurisdiction under Rule 36A in assailing an appellate order Under Section 39 of the Arbitration Act is to be read, otherwise revisional power under Rule 36A will give occasion to hostile discrimination. For example, in the State of Meghalaya where the Rules are not applicable, a litigant can only move the High Court in its revisional jurisdiction Under Section 115 of the Code of Civil Procedure against an appellate order Under Section 39 of the Arbitration Act but another litigant where the Rules are applicable, will avail larger rights in exercise of revisional power by the High Court under Rule 36A against a similar appellate order Under Section 39 of the Arbitration Act. Such a situation is not permissible. Revi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
