SANJAY KISHAN KAUL, J.

( 1 ) ADMIT.

( 2 ) AT the request of learned counsel for parties, the petition is taken up for final disposal.

( 3 ) AN arbitration proceeding is pending between the parties. During the course of the arbitration proceedings, in order to prove its case, the petitioner moved an application seeking approval of the arbitrator in taking assistance of the court to summon four witnesses. The arbitral Tribunal by its order dated 01. 10. 2003 allowed the same.

( 4 ) THE petitioner thereafter filed the application under Section 27 of the arbitration and Conciliation Act, 1996 (herein referred to as said Act) which was however rejected in terms of the impugned order dated 25. 02. 2004 which has given rise to the present proceedings under Article 227 of the Constitutional of India.

( 5 ) A perusal of the impugned order shows that the learned Additional District judge has rejected the application on the ground that the Arbitral Tribunal had to pass a reasoned order setting out circumstances which necessitated it to recommend that the court ought to exercise its jurisdiction under Section 27 of the said Act for summoning of witness. Since no such circumstance has been set out, it was held that the discretion under Section 27 of the said Act cannot be exercised in a routine manner.

( 6 ) IN order to appreciate the controversy, it is necessary to reproduce Section 27 of the said Act which reads as under. "court assistance in taking evidence:- (1) The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the court for assistance in taking evidence. (2)The application shall specify:- (a) the names and addresses of the parties and the arbitrators; (b) the general nature of the claim and the relief sought; (c) the evidence to be obtained, in particular:- (1)the name and address of any person to be heard as witness or expert witness and a statement of the subject-matter of the testimony required; (2)the description of any document to be produced or property to be inspected. The court may, within its competence and according to its rules on taking evidence, execute the request by ordering that the evidence be provided directly to the arbitral tribunal. The court may, while making an order under sub-section (3), issue the same processes to witnesses as it may issue in suits tried before it. Persons failing to attend in accordance with such process, or making any other default, or refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and punishments by order of the court on the representation of the arbitral tribunal as they would incur for the like offences in suits tried before the court. In this section the expression 'processes' includes summonses and commissions for the examination of witnesses and summonses to produce documents. "

( 7 ) SECTION 27 envisages an application to be made to the court for seeking assistance to take evidence. Such an application can be made either by the arbitral Tribunal or a party with the approval of the Arbitral Tribunal. Thus, in case of an application by a party, the legislature itself envisaged an approval of the Arbitral Tribunal. This in turn puts an obligation on the arbitral Tribunal to apply its mind and not to mechanically direct an application to be filed before the court.

( 8 ) A reading of the provisions of sub Section 3 and sub Section 4 of Section 27 of the said Act would show that the court may according to its rules of taking evidence examine such an application and issue processes to the witnesses in the same manner as if the court was trying the suit. This in turn would require the court to exercise powers in accordance with order 16 of the Code of Civil procedure 1908 (herein-after referred to as the 'said Code' ). The relevant provision is reproduced as under Order 16 Rule 1. List of witnesses and summons t