VERY IMPORTANT POINT
A revision u/s 115 CPC 1908 lies to the High Court as against an order made by a Civil Court in an appeal u/s 37(2) of Arbitration & Conciliation Act, 1996. On the facts & circumstances of this case, such a remedy by way of revision is an alternate and efficacious remedy. Therefore, direct appeal under Article 136 is ordinarily not maintainable.

Headnote:(i) Arbitration and Conciliation Act, 1996-Sections 2(e), 5, 19 and 37(2)-C.P.C. 1908-Section 115-Interim order by Arbitral Tribunal-Appeal to Principal Civil Court of Original Jurisdiction (10th Additional City Civil Judge, Bangalore)-Dismissed-Direct Appeal to Supreme Court by special leave-Whether a revision petition u/s 115 CPC lies to the High Court as against an order made by a Civil Court in an appeal preferred under Section 37(2) of 1996 Act when a second appeal is barred u/s 37(3) and when CPC is not made specifically applicable nor its application is expressly excluded ? (Yes)-AIR 1948 PC 12, 1969(2) SCC 74 and 1980 Suppl. SCC 471 (distinguished) and Nirma Ltd. case relied on-Bhatia International case followed.
       Held : Per Hegde, J.-
       It is true in the present Act application of the Code is not specifically provided for but what is to be noted is : Is there an express prohibition against the application of the Code to a proceeding arising out of the Act before a civil court ? We find no such specific exclusion of the Code in the present Act. When there is no express exclusion, we cannot by inference hold that the Code is not applicable. (Para 10)
       This general principle apart, this issue is now settled by the judgment of a 3-Judge Bench of this Court in the case of Bhatia International vs. Bulk Trading S.A. & Anr. in C.A.No. 6527/2001 - decided on 13.3.2002 wherein while dealing with a similar argument arising out of the present Act, this Court held : "While examining a particular provision of a statute to find out whether the jurisdiction of a Court is ousted or not, the principle of universal application is that ordinarily the jurisdiction may not be ousted unless the very statutory provision explicitly indicates or even by inferential conclusion the Court arrives at the same when such a conclusion is the only conclusion." (Para 11)
       Held further : When the Act under Section 37 provided for an appeal to the civil court and the application of 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. (Para 13)
       It is true that the power of this Court to entertain an appeal directly is not taken away merely because another remedy is available but then the question is, should this Court encourage litigants to indulge in hop, skip and jump to reach this Court either for the reason that the remedy from this Court would be quick or more efficacious ? The answer, in our opinion, should be no. (Para 14)
       Held : Per Dharmadhikari, J. (agreeing with Hegde, J.)-
       I am in respectful agreement with the judgment of learned Brother N. Santosh Hegde J. I would like to add some additional reasons to agree with his conclusion. Power conferred on the High Court under Section 115 of the Code of Civil Procedure 1908 over all subordinate courts within its jurisdiction is a supervisory power and has been distinguished from its power of appeal to correct errors of fact and law. The power of revision under Section 115 being in the nature of power of superintendence to keep subordinate courts within the bounds of their jurisdiction cannot be readily inferred to have been excluded by provisions of a special Act unless such exclusion is clearly expressed in that Act. The Arbitration and Conciliation Act of 1996 which is for consideration before us by provision contained in Section 37(3) of the said Act only takes away the right of Second Appeal to the High Court. The remedy of revision under Section 115 of the Code of Civil Procedure is neither expressly nor impliedly taken away by the said Act. (Paras 17 & 18)
       (ii) Constitution of India-Article 136-Direct appeal by special leave against appellate order against interim order of Arbitral Tribunal-Remedy by way of revision u/s 115 CPC available -Whether on the facts and circumstances of this case, such a remedy by way of revision is an alternate and efficacious remedy or not? (It is an alternate and efficacious remedy)-Result-Appeal by special leave dismissed.
       Held : Per Hegde, J.-
        Learned counsel for the appellant next contended that assuming that the remedy of revision is available even then the same is not an efficacious alternate remedy because this appeal involves a very sensitive issue pertaining to the security of the country and which, according to the appellant, requires extreme urgency in deciding the same and the said requirement will not be possible if the appellant has to approach the High Court. We are not impressed with this argument addressed on behalf of the appellant because we notice from the record that the arbitration proceedings have started as far back as in the year 2001 and the parties instead of getting the arbitration concluded, have been litigating on interim applications till date. If indeed urgency was there then the party which feels the necessity of quick disposal would have concentrated more on completing the arbitral proceedings rather than spending its time in court inviting orders of the High Court on interlocutory applications. Therefore, we are of the opinion that there is no such urgency which requires us to treat this case differently. In regard to the sensitivity of the matter and the national security involved, we do not 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. 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, in the facts and circumstances of this case, we direct the appellant to first approach the High Court. For the said reasons, this appeal fails and the same is hereby dismissed. We, however, make it clear that should the appellant present a revision petition within 30 days from today, the same will be entertained by the High Court without going into the question of limitation, if any (Paras 15 & 16)
       Held per Dharmadhikari, J. (concurring with Hegde, J.) :
       The supervisory jurisdiction to be exercised by the High Court under Section 115 of the Code is for the purpose of correcting jurisdictional error if any committed by Sub-ordinate Court in exercise of power in appeal under Section 37 (2) of the Act. The approach made to the Revisional Court under Section 115 of the Code is not a resort to remedy of appeal. In appeal, interference can be made both on facts and law whereas in revision only errors relating to jurisdiction can be corrected. Such revisional remedy is not expressly barred by the provisions of the Act. We have also not found any implied exclusion of the same on examination of the scheme and relevant provisions of the Act. (Para 22)

JUDGMENT

Santosh Hegde, J.-Leave granted.

2. This appeal is filed directly to this Court against the judgment and order of the 10th Additional City Civil Judge, Bangalore made in Misc. Appeal No. 6 of 2002 dated 18th April, 2002.

3. The appeal before City Civil Judge was against an interim order made by the arbitral tribunal and that 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 Civil Procedure Code (the Code ) lies to the High Court as against an order made by a civil court in an appeal preferred under Section 37 of the Act. If so, whether on the facts and circumstances of this case, such a remedy by way of revision is an alternate and efficacious remedy or not.

5. Mr. K. Parasaran, learned senior counsel appearing for the appellants submitted that the right of second appeal is specifically taken away under Section 37(2) of the Act. Therefore, by implication it should be held that even a revision is not maintainable under Section 115 of the Act. He pointed out that under Section 5 of the Act, there is a bar against judicial intervention by any judicial authority unless the same is specifically provided under Part I of the Act. It is his contention that since a revision is not specifically provided for and the Code not being made applicable to proceedings arising under the Act, a revision to the High Court does not lie. Therefore, he contends that the appellant s only remedy is to approach this Court by way of this appeal. He sought to take support from a decision of the Privy Council in the case of R.M.A.R.A. Adaikappa Chettiar & Anr. vs. R. Chandrasekhara Thevar (AIR 1948 PC 12) and two decisions of this Court in the case of Shankar Ramchandra Abhyankar vs. Krishnaji Dattatreya Bapat (1969(2) SCC 74) and M/s. Central Coal Fields Ltd. & Anr. vs. M/s. Jaiswal Coal Co. & Ors. (1980 Supp. SCC 471).

6. Mr. P. Chidambaram, learned counsel appearing for the respondent in reply contended that under Section 37 of the Act an appeal is provided to a civil court as defined under Section 2(e) of the Act. He pointed out that though there is no specific reference as to the application of the Code to the proceedings arising under Section 37, there is no express exclusion of the Code either. Therefore, in the absence of any such express exclusion, the appeal being provided to a civil court, the Code should apply to the proceedings before the civil court. He also argues that this question of availability of an alternate remedy by way of revision to the High Court is no more res integra because the same is concluded by a recent order of this Court though rendered at SLP stage in the case of Nirma Ltd. v. M/s. Lurgi Lentjes Energietechnik GMBH & Anr. made in SLP(C) No. 22106 of 2001 - dated 14.1.2002.

7. Mr. K. Parasaran s reliance on the case of Adaikappa Chettiar (supra) is misplaced because the judgment does not support the case of the appellant, what was held by the Privy Council in that case was when an appeal lies under Section 96 of the Code of Civil Procedure the High Court cannot entertain an application for revision under Section 115 of the Code 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 of the Act 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. Parasar

Click Here to Read the rest of this document

2002 Supreme(SC) 651

Cases Referred (4)