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IN THE HIGH COURT OF JAMMU AND KASHMIR AT Jammu
Y.P. Nargotra, J.
B.V. Sharma - Appellant
Versus
Sher-e-Kashmir University Of Agriculture Sciences And Technology & Ors. - Respondent
Case No. APAA No. 17/2006 in AA No. 31/2006 & CMP No. 3/2006
Decided On : 29 November, 2006
Jammu and Kashmir Arbitration and Conciliation Act 1997 - Court's Interpretation of 'Court' - Section 9, Section 2(e), Section 16, Section 24, Section 42 - The court deliberated on whether the Court of Additional District Judge falls within the definition of 'Court' as per section 2(e) of the Act. The court analyzed the provisions of the Act, the Civil Courts Act, and the Civil Procedure Code to determine the jurisdiction of the Additional District Judge. The court also discussed the 'that Court alone' rule under section 42 and its applicability to the transfer of arbitration applications to the Court of Additional District Judge. The judgment provides a comprehensive interpretation of the legal framework and its application to the jurisdiction of the Court of Additional District Judge.
Fact of the Case:
The non-applicant filed a petition under section 9 of the Jammu and Kashmir Arbitration and Conciliation Act 1997 against the applicants in the Court of learned Principal District Judge, Jammu. The case was transferred to the Court of learned 2nd Additional District Judge, Jammu. The applicants filed an application seeking modification of the order on the plea that the Court of 2nd additional District Judge lacks the inherent jurisdiction to try the petition.
Finding of the Court:
The court deliberated on the interpretation of the term 'Court' as defined in section 2(e) of the Act and analyzed the jurisdiction of the Court of Additional District Judge in relation to the provisions of the Civil Courts Act and the Civil Procedure Code. The court also discussed the applicability of the 'that Court alone' rule under section 42 and its interpretation in the context of transferring arbitration applications to the Court of Additional District Judge. The court dismissed the application of the applicant, holding that the term 'that Court' in Section 42 includes the Court of an Additional District Judge to which an arbitration application made before a Principal Civil Court of original jurisdiction has been validly transferred.
Issues: Interpretation of the term 'Court' as defined in section 2(e) of the Jammu and Kashmir Arbitration and Conciliation Act 1997, Jurisdiction of the Court of Additional District Judge, Applicability of the 'that Court alone' rule under section 42
Ratio Decidendi: The court's decision was based on the interpretation of the provisions of the Act, the Civil Courts Act, and the Civil Procedure Code, and the application of the 'that Court alone' rule under section 42 to the transfer of arbitration applications to the Court of Additional District Judge.
Final Decision: The court dismissed the application of the applicant, holding that the term 'that Court' in Section 42 includes the Court of an Additional District Judge to which an arbitration application made before a Principal Civil Court of original jurisdiction has been validly transferred.
2. Despite the fact that the case was transferred to the Court of learned 2nd additional District Judge on the joint request of the parties, the applicants who were respondents in the said matter have filed the instant application for seeking modification of the order dated 25-9-06 on the plea that Court of 2nd additional District Judge lacks the inherent jurisdiction to try that petition.
3. Section 9 of 1997 Act provides that a party may before or during arbitral proceedings or at time after the making the arbitral award but before it becomes decree of the court, apply to a "Court" for any interim measures etc. specified in the section. The Section 2 (e) of the Act defines the term " Court" in the following manner:-
" 2. Definitions:
(1) In this part unless the context otherwise requires-
X x x x x x x x x x x
(e) "Court" means the Principal Court of original jurisdiction in a district and includes the High Court in exercise of its ordinary original Civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court or any Court of Causes."
The question arising for consideration is whether the Court of Additional District Judge is the Court within the meaning of section 2 (e) of the Act. The contention of Mr. Gupta, learned counsel for the applicant is that the Court of Additional District Judge being not a principal Court of original jurisdiction in a District does not fall within the term "Court" as defined in section 2 (e) of the Act. According to him as per the definition of the term "Court" only two Courts i.e. the Principal Court of Civil Original jurisdiction and the High Court in exercise of its ordinary original jurisdiction come within the definition of term "Court", which alone can have the jurisdiction to hear a petition under section 9 or any other petition filed under other sections of part-I of the Act. He submits that once a party chooses a forum out of the said two Courts by filing a petition only that forum alone in which such petition is filed possesses the jurisdiction and this is so because under section 42 of the Act all subsequent arbitration applications can be filed only before that forum to the exclusion of all other Courts.
4. To the contrary the contention of Mr. Raina, learnedcounsel for the non-applicant is that if the Principal District Judge was dis-abled to hear the petition he himself was competent to transfer the case to the Court of Additional District Judge in exercise of his ordinary Civil jurisdiction and this apart simply because the High Court has been included in the definition of the term "Court" as defined in section 2 (e) of the Act its ordinary civil jurisdiction for transferring a case cannot be said to have been lost. He submits that the bar of filing subsequent applications envisaged by section 42 of the Act can operate only after the first Court in which the first application is filed proceeds to hear the matter on merits. If a Court entertains the application and transfers it to some other Court in exercise of its ordinary civil jurisdiction i
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