The court must exercise caution and circumspection when exercising its discretion to supersede arbitration under the proviso to Section 25 of the Arbitration Act.

1. This revision is directed against the order dated 19/02/1990, of the Subordinate Judge 1st Class, Jagadhri.

2. Facts relevant for the decision of the revision petition may be briefly stated as under : Murti Mari Guga Pir Mandir instituted a suit for permanent injunction through Lal Chand Mohtamim restraining the defendants Shri Badir and others from interfering in the actual and physical possession of the plaintiffs property, comprising temple of the Murti in Khasra No. 181 min (1 Kanal 19 Marlas) is the area of Chhachhrauli, in any manner whatsoever. The suit was instituted on 19/11/1985. The written statement was filed on 7/01/1986 and issues were framed on 28/02/1986. During the pendency of the suit, both the parties made an application to the Court on 22/04/1989, that the dispute may be referred to the arbitrators and that their decision would be final and binding on both the parties. Two arbitrators were named by the plaintiffs and an equal number by the defendants. The decision of the majority was to be the final decision of the arbitrators. The plaintiff named S/Shri Mohan Lal and Faqir Chand as the arbitrators, while the defendants named S/Shri Ved Parkash and Brij Mohan. Both the arbitrators named by the plaintiff made an application to the Court refusing to act as arbitrators. Their statements were recorded by the Court and the following short order was passed: "Defendants file reply to the application Case is adjourned for plaintiffs evidence to 1-6-1990 and argument on application for disobedience." Defendant No. 4 Pritam Chand has filed this revision against the said order.

3. Learned counsel for the respondent took a preliminary objection that the revision is not competent. The contention is that the order in question supersedes an arbitration and it is an appealable order under S. 39(1)(i) of the Arbitration Act, 1940 . It was further submitted by the learned counsel that the present revision cannot be considered as an appeal, firstly, because the period of limitation for filing the appeal was only 30 days, and, secondly, the appeal under Sec. 39 from the instant order lay to the Court of the District Judge and not to the High Court. Reference was made by the learned counsel to cAIR 1936 Lahore 538 and M. H. Tejani V/s. Mrs. Kulsumbai M. Jetha, AIR 1967 Bombay 300, for the proposition that the order superseding the award is an appealable order under Sec. 39(1)(i) of the Arbitration Act and no revision lies therefrom. He also referred to Rajiv Kumar Sharma V/s. Smt. Bimla Rani Aggarwal etc., 1984 Rev LR 350, to show that a revision cannot be treated as an appeal because doing so would render the provisions of sub-section(2) of Sec. 115 of the Code of Civil Procedure nugatory. I do not find any force in the preliminary objection. Under Sec. 39 (1)(i) appeal lies against an order superseding an arbitration. The order passed in the instant case has been reproduced above. In my view, the order does not amount to an order superseding the arbitration. Reasons follow.

4. Faced with this difficulty, learned counsel for the respondent contended that the learned trial Court had fixed the case for plaintiffs evidence, issues having already been framed. The only inference by necessary implication was that the arbitration had been superseded. No doubt, an order superseding the arbitration can be passed expressly as well as by necessary implication, in the facts of the present case, I do not find that the Court passed an order superseding the arbitration. Elaborate provisions have been made in Sections 8(1)(b), 9 and 12 to fill the vacancy where the arbitrator or arbitrators refuse to act as such. No such steps were taken nor was it indicated in the order that it was not possible to have the difference decided through the instrumentality of arbitration as agreed to by the parties. No doubt, the proviso to Sec. 25 vests a discretion in the Court to supersede the arbitration instead of filling up the vacancies in acco