1. This is an application under Order 9 Rule 13 read with Sec. 115 (sic) of the Code of Civil Procedure and S. 41 of the J&K Arbitration Act, for setting aside the judgment and decree dated 31.7.2001 passed by this Court in A. A. No. 54/ 1999.

2. A preliminary objection has been taken to the maintainability of the application on the ground that the judgment and decree sought to be set aside through this application by the respondent-State is the judgment and decree passed on merits of the case and therefore, the present application does not lie. It will be necessary to refer to the facts, which may be set out briefly as follows:

3. The petitioner-company was allotted a contract for supply and installation of mechanical/electrical equipment at Brarinamt, Srinagar. The agreement executed between the parties contained an arbitration clause. Disputes arose between the parties and the same were referred for adjudication through arbitration to the arbitrator. The arbitrator entered upon the reference and made and published his award on 2.12.1999. The award was filed in the court by the Arbitrator for

making the same rule of the Court. This Court issued notice to the parties u/s 14(2) A. A. by order dated 6.12.1999. Respondent-State filed an application for setting aside the award u/s 30/33 AA on 19.4.2000. Objections to the application were filed by the petitioner company. On 22.8.2000 four weeks time was allowed to the Sate for filing rejoinder to the objections. It may be pertinent to say that on this date there was no representation from the State before the Court. The matter came up again on 11.10.2000 but on that date also there was no representation on behalf of the State. The court directed issuance of a notice to Sh. B. M. Sadiq Advocate for the State for his appearance on 15.11.2000. The case was again listed on 21.11.2000. On that date Mr. S.K. Shukla advocate caused his appearance on behalf of the State. Then on the subsequent dates i.e 27.12.2000, 17.2.2001 and 14.3.2001 the case was listed in the court but again there was no representation on behalf of the State on these dates but the fact remains that no effective order was passed on any of the said dates. The matter was taken up by the court on 4.4.2001 and was reserved for judgment and on 31.7.2001 the order impugned came to be passed. By this order the award was made rule of the court and a decree was directed to be drawn accordingly. The following observations in the order itself need attention: -

"When the award was filed in this court for making a rule of the court, notice was issued to the State and also to the claimant M/S Purolator India Ltd. hereinafter referred to as the company. The company put in appearance. This is apparent from the proceedings dated 22.8.2000. Directions were issued to the counsel who was appearing for the State to put in appearance on 15.11.2000. Notice was issued to the counsel. This was duly served on the counsel. A report to this effect has been made by the Registry of this Court. Proceedings were adjourned from time to time. Ultimately on 14.3.2001 direction was given to list the case again. On 4.4.2001 the case was listed. The judgment was reserved. No one appeared for the State. Counsel for the company pleaded that the application preferred by the State be dismissed for want of prosecution. This course is not adopted. This is because dismissal in default and dismissal for non-prosecution does no justice to any of the parties. The system of administration of justice which is already burdened gets further burdened with applications seeking restoration and another channel of litigation starts leaving main litigation by the side-lane. It is precisely for this reason the suggestion made by the company was not accepted. The matter has been examined on merits."

From the above observations made in the order impugned it is manifest that this order has been passed on merits of the case in absence of counsel for

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