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High Court Of Rajasthan
Judgename : S.K.Mal Lodha
STATE OF RAJASTHAN - Appellant
Versus
MEHTA CHETAN DAS KISHANDASS - Respondent
Civil Review Appln. 9 Of 1978
Decided On : 01/10/1980
ARBITRATION ACT, 1940 - SECTION 8(2) - LIMITATION ACT, 1963 - ARTICLE 137 - APPLICATION FOR APPOINTMENT OF ARBITRATOR - LIMITATION - APPLICABILITY OF ARTICLE 137 - MISTAKE APPARENT ON THE FACE OF THE RECORD - REVIEW.
Fact of the Case:
The non-applicant (Contractor) submitted an application under Section 8 (2) of the Arbitration Act (No. X of 1040) against the State of Rajasthan. The State of Rajasthan resisted the application on various grounds. The District Judge framed seven issues inclusive of the relief Issues Nos. 3, 4 and 6. The District Judge, Shri Ganga-nagar, by his order dated May 30, 1974 held that the non-applicant (Contractor) is entitled to a direction and, therefore, he gave the direction and accepted the application. A revision petition was filed against the order of the District Judge Sri ganganagar by which he accepted the application under Section 8 (2) of the Act. The revision petition was dismissed with costs. The State of Rajasthan has filed the application for review on the ground that in view of the decision reported in Kerala Slate Electricity Board v. T. P. Kunhaliumma, AIR 1977 SC 282, the application of the contractor under Section 8 (2) of the Act was time-barred inasmuch as Article 137 of the Limitation Act, 1963 is applicable.
Finding of the Court:
The court held that the view taken that Article 137 of the Limitation Act, 1963 has no application to an application under Section 8 (2) of the Act was due to the fact that the learned counsel for the parties in the Revision, informed that Town municipal Councils case, (AIR 1969 SC 1335) has not been reconsidered by their Lordships of the Supreme Court till then which was inadvertency Inasmuch as the dictum of their Lordships of the Supreme Court, which is binding, was not noticed and in ignorance of that, the finding in regard to the question of limitation was recorded. As the dictum of their Lordships of the Supreme Court was not noticed and overlooked while giving finding on issue No, 4, relating to the question of limitation for filing of the application under Section 8 (2) of the act, this, in my opinion, is a mistake or error apparent on the face of the record and it is a valid ground for review.
Issues: Whether Article 137 of the Limitation Act, 1963 is applicable to an application under Section 8 (2) of the Arbitration Act, 1940.
Ratio Decidendi: The court held that the mistake or error of law in the present case is an error apparent on the face of the record and satisfies the conditions of Order XLVII, Rule 1, C. P. C. The court relied on the decisions of the Federal Court and Rajasthan High Court to support its view.
Final Decision: The application for review is granted and the order dated July 10, 1978 passed in the revision is recalled. The revision petition shall now be posted for re-hearing after notice to the parties.
S. K. MAL LODHA, J.
( 1 ) THIS is an application for review under Order XLVII, Rule 1, C. P. C. against the order dated July 10, 1978 passed in S. B. Civil Revision Petition No. 594 of 1974 by which the revision filed by the State of Rajasthan was dismissed.
( 2 ) A few facts may be recounted: The non-applicant (Contractor) submitted an application under Section 8 (2) of the Arbitration Act (No. X of 1040) (for short the. Act hereafter) on July 27, 1973 against the State of Rajasthan. The State of Rajasthan resisted the application on various grounds by filing a reply. The learned District Judge framed seven issues inclusive of tre relief Issues Nos. 3, 4 and 6 are as under:
" (3) Whether the petitioner has waived his right to refer the matter to arbitration as alleged in para 11 of the reply and if so, what is its effect? (4) Whether the petition is not maintainable as alleged in paras 13 and 14 of the reply? (6) Whether the petitioner is entitled under Section 8 of the arbitration Act to get an arbitrator appointed?"
The learned District Judge, Shri Ganga-nagar, by his order dated May 30, 1974 held that the non-applicant (Contractor) is entitled to a direction and, therefore, he gave the direction and accepted the application.
( 3 ) A revision petition was filed against the order of the District Judge Sri ganganagar by which he accepted the application under Section 8 (2) of the Act the revision petition was registered as S. B. Civil Revision Petition No. 594 of 1974. The following findings were recorded in the order dated July 10, 1978, passed in revision:
(1) That in the absence of a nomination by the State, the second para of Clause 19 (2) of the agreement cannot come into operation so as to extinguish all the rights and claims of the contractor, who had moved the Court under Section 8 (2) of the Act. The finding on issue no. 3 was upheld.
(2) That there is no period prescribed for making an application under section 8 (2) of the Act and that Article 137 of the Limitation Act, 1963 has no application. Finding on Issue No. 4 was confirmed.
(3) That the case of the contractor was fully covered by the provisions of Section 8 (1) (a) of the Act and consequently, the learned District judge was right in appointing the Arbitrator under Section 8 of the act. It was held that issue No. 6 was correctly decided by the District judge.
In view of the foregoing findings, the revision petition was dismissed with costs. The State of Rajasthan has filed the application for review On the ground that in vipw of the decision reported in Kerala Slate Electricity Board v. T. P. Kunhaliumma, AIR 1977 SC 282, the application of the contractor under Section 8 (2) of the Act was time-barred inasmuch as Article 137 of the Limitation Act, 1963 is applicable and that the decisions relied on by this Court while deciding issue No. 4 could not be availed of as the decisions in Town Municipal Council, athani v. Presiding Officer, Labour Court, AIR 1969 SC 1335 and Kerala State electricity Board v. Illippadical Parvathi Amma, AIR 1974 Ker 202 were overruled.
( 4 ) A notice was ordered to be issued to the non-applicant (contractor) on september 9, 1978. Despite service, nobody has appeared nn behalf of the non-applicant.
( 5 ) I have heard Mr. Rajesh Balia, Dy. Government Advocate, appearing for the applicant.
( 6 ) IN Kerala State Electricity Boards case, (AIR 1977 SC 282), it was ruled as under:
"the conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two Judge bench of this Court in Athani Municipal Council case, (AIR 1969 SC 1335) (supra) and hold that Art 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for
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