The court has the discretion to allow evidence other than affidavits in an application under Section 33 of the Arbitration Act, 1940, if it deems it just and expedient to do so.

S. PARVATHA RAO, J.

( 1 ) THE respondent in O. P. No. 171 of 1989 before the learned Principal Subordinate Judge at Vijayawada questions his order dated 26. 7. 1994 permitting the petitioner therein to let in evidence and rejecting the contention advanced on behalf of the respondent that the matter should be decided on affidavits in view of Section 33 of the Arbitration Act, 1940, ( the Act for short ).

( 2 ) ORIGINAL Petition No. 347 of 1985 was preferred for setting aside the award passed by the Arbitrator on the grounds raised in that petition. After counter were filed therein, the matter was posted for enquiry and it was at that stage, that the learned counsel for the petitioner therein (respondent in the present C. R. P.) wanted to adduce evidence in support of the averments in that petition, and objection to that was raised relying on Section 33 of the Act that the questions involved in the O. P. should be decided on affidavits; and as already stated above that objection was rejected by the learned Principal Subordinate Judge permitting other evidence. The petitioner in this C. R. P. questioned the said order of the learned Principal Subordinate Judge by way of an appeal under Section 39 of the Act and the same was numbered as C. M. A. No. 996 of 1994. On 22. 8. 1994 a Division Bench of this court granted interim stay pending further orders in C. M. P. No. 12061 of 1994. Thereafter when the stay petition came up before us, we directed, the C. M. A. itself to be posted for final disposal. After hearing the matter and reserving for judgment on 3. 7. 1995 we wondered whether the appeal was maintainable as the impugned order was not one of the appealable orders specified in sub-section (1) of Section 39 of the Act which is as follows :"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 the order : An order : (i) superseding an arbitration; (ii) on an award stated in the form of a special case; (iii) modifying or correcting an award; (iv) filing or refusing to file an arbitration agreement; (v) staying or refusing to stay legal proceedings where there is an arbitration agreement; (vi) setting aside or refusing to set aside an award; Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court. "we therefore, posted the matter for being mentioned and it came up on 11. 7. 1995. A look at Section 39 itself placed the issue beyond doubt. See State of W. B. v. Gourangalal Chatterjee (1993 (3) SCC 1 = 1993 (2) Arb. LR 95 ). The learned counsel for the appellant in the appeal-petitioner in the present C. R. P.- accepted that the appeal was not maintainable and sought time to file a petition to convert the same into a revision petition.

( 3 ) C. M. P. No. 9157 of 1995 was thereafter filed to permit the conversion of the C. M. A. into a C. R. P. and to raise some additional grounds. The learned counsel for the appellant/petitioner herein relied on the judgment of a Division Bench of this court in State of A. P. v. P. Lakshumu Reddy (1994 (1) APLJ 89), in which it was held that no appeal was provided under Act in respect of matters other than those contemplated by Sections 17 and 39 of the Act and that therefore in all matters where appeals did not lie under the Act, revisions under Section 115 of the Code of Civil Procedure would lie to the High Court in view of Section 41 of the Act because filing of revisions in the High Court would not be inconsistent with the provisions of the Act, or the Rule made thereunder. He also relied on a judgment of a Division Bench of the Delhi High Court in Mehta Teja Singh and Co. v. Fertilizer Corpn. of India (AIR 1968 Delhi 188), where also one of the question that arose was whether appeals preferred under Section 39 (1) (vi) of the Act should be treated as revisions. I. D. Dua, C. J. (as his Lordship

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