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Order Refusing Judge is Interlocutory, Not Revisable Under Section 115 CPC:
A single-judge bench of the has firmly shut the door on the State government’s attempt to challenge a judge’s refusal to recuse from hearing an arbitration appeal. The Court held that such an order is interlocutory in nature and cannot be assailed through a under .
Justice Bhaskar Raj Pradhan, presiding over the matter, ruled that even if the request had been granted, it would only have resulted in a change of the presiding officer, not the final disposal of the proceedings. Therefore, the , which bars interference with interlocutory orders, squarely applies.
Background: A Long-Standing Lease Dispute
The case stems from a commercial lease agreement between the and respondent Nimmi Oberoi concerning the Hotel Norkhil campus in Gangtok. In 2021, Oberoi obtained an under , from the . The State challenged that order, but the ultimately appointed a . The arbitrator passed an award against the State in .
The State then filed a challenge under before the . However, the judge there recused himself because the respondent’s counsel was his spouse. The High Court then transferred the Section 34 appeal to the via an administrative order on .
The Issue and the State’s Revision
When the case came up before the , the sought the judge’s . The State argued that the same presiding officer had earlier dealt with the Section 9 application and had expressed extensive views on the merits of the case in his order dated . That order, the State contended, demonstrated that the judge had already made up his mind, creating a .
The Commercial Court rejected the plea on , observing that hearing an earlier application for interim measures does not automatically warrant . Aggrieved, the State invoked Section 115 CPC by filing a before the .
Arguments: Interlocutory Nature and Bias
The Additional Advocate General for the State argued that the judge’s prior findings were extensive and touched upon the merits, making it inappropriate for him to hear the Section 34 appeal.
On the other hand, counsel for Oberoi raised two key objections: first, that the impugned order rejecting was an and thus not revisable under Section 115 CPC; and second, that the State had failed to demonstrate any real or .
Legal Analysis: Scope of Section 115 CPC
Justice Pradhan delved into the scope of under Section 115 CPC as amended in 1999. Citing the ’s decision in , the Court reiterated that the High Court cannot interfere with interlocutory orders unless they involve jurisdictional errors or material procedural irregularities. The expressly bars revision against any order that would not finally dispose of the suit or proceedings.
“The impugned order of refusal to recuse from the case even if it was decided in favour of the would not have disposed of the suit or other proceedings. All that it would result in would be a change of the Presiding Officer or the Court,” the judge observed.
No Automatic for Prior Adjudication
On the merits of the argument, the High Court held that a judge who decided a Section 9 application does not automatically have to recuse from hearing a subsequent Section 34 challenge arising from the same arbitration. Justice Pradhan noted that Section 9 proceedings concern , whereas Section 34 proceedings involve challenging the on .
The Court examined the earlier order of and found that the judge had carefully confined his observations to a opinion for the limited purpose of the Section 9 application. Such a preliminary view, the Court held, does not establish bias or a .
“If an application for is permitted on the mere asking on the ground that the learned Judge had decided one way or the other earlier on an application under Section 9 of the Arbitration Act, it would lead to the party choosing their Judge which would not be proper for ,” Justice Pradhan cautioned, citing the ’s decision in .
Key Observations from the Judgment
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“The impugned order of refusal to recuse from the case even if it was decided in favour of the would not have disposed of the suit or other proceedings. All that it would result in would be a change of the Presiding Officer or the Court.”
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“An application under Section 9 and an appeal under involves different inquiries. Section 9 deals with while Section 34 is an appeal to set aside the award under .”
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“If an application for is permitted on the mere asking … it would lead to the party choosing their Judge which would not be proper for .”
Decision and Implications
The rejected the , upholding the Commercial Court’s refusal to recuse. The Court also directed that the order be sent to the for information.
The ruling reinforces two key principles: first, that orders refusing are interlocutory and beyond the scope of Section 115 CPC; and second, that a judge’s prior involvement in a related interim application does not, by itself, warrant absent a real and . The decision is likely to curb similar attempts by litigants to forum-shop by seeking a change of the presiding judge based on earlier rulings in the same dispute.
