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CASE NO.:

Appeal (civil) 3620 of 2002

PETITIONER:

M/S. I.T.I. LTD.

Vs.

RESPONDENT:

M/NSE.TSWIOERMKENLSTDP.UBLIC COMMUNICATIONS

DATE OF JUDGMENT: 20/05/2002

BENCH:

N. Santosh Hegde

JUDGMENT:

SANTOSH HEGDE, J.

Leave granted.

This appeal is filed directly to this Court against the

judgment and order of the 10th Addlitional City Civil Judge,

Bangalore made in Misc. Appeal No.6 of 2002 dated 18th

April, 2002.

The appeal before City Civil Judge was against an

interim order made by the arbitral tribunal and that appeal was

filed under Section 37(2)(b) of the Arbitration and Conciliation

Act, 1996 (the 'Act'). The learned Civil Judge dismissed the

said appeal.

The principal question that arises for our consideration is

whether a revision petition under Section 115 of the Civil

Procedure Code (the 'Code') lies to the High Court as against

an order made by a civil court in an appeal preferred under

Section 37 of the Act. If so, whether on the facts and

circumstances of this case, such a remedy by way of revision is

an alternate and efficacious remedy or not.

Mr. K. Parasaran, learned senior counsel appearing for

the appellants submitted that the right of second appeal is

specifically taken away under Section 37(2) of the Act.

Therefore, by implication it should be held that even a revision

is not maintainable under Section 115 of the Act. He pointed

out that under Section 5 of the Act, there is a bar against

judicial intervention by any judicial authority unless the same is

specifically provided under Part I of the Act. It is his contention

that since a revision is not specifically provided for and the

Code not being made applicable to proceedings arising under

the Act, a revision to the High Court does not lie. Therefore, he

contends that the appellant's only remedy is to approach this

Court by way of this appeal. He sought to take support from a

decision of the Privy Council in the case of R.M.A.R.A.

Adaikappa Chettiar & Anr. vs. R.Chandrasekhara Thevar (AIR

1948 PC 12) and two decisions of this Court in the case of

Shankar Ramchandra Abhyankar vs. Krishnaji Dattatreya Bapat

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(1969 (2) SCC 74) and M/s. Central Coal Fields Ltd. & Anr. vs.

M/s.Jaiswal Coal Co. & Ors. (1980 Supp. SCC 471).

Mr. P.Chidambaram, learned counsel appearing for the

respondent in reply contended that under Section 37 of the Act

an appeal is provided to a civil court as defined under Section

2(e) of the Act. He pointed out that though there is no specific

reference as to the application of the Code to the proceedings

arising under Section 37, there is no express exclusion of the

Code either. Therefore, in the absence of any such express

exclusion, the appeal being provided to a civil court, the Code

should apply to the proceedings before the civil court. He also

argues that this question of availability of an alternate remedy

by way of revision to the High Court is no more res integra

because the same is concluded by a recent order of this Court

though rendered at SLP stage in the case of Nirma Ltd. v. M/s.

Lurgi Lentjes Energietechnik GMBH & Anr. made in SLP

No.22106 of 2001 dated 14.1.2002.

Mr. K.Parasaran's reliance on the case of Adaikappa

Chettiar (supra) is misplaced because the judgment does not

support the case of the appellant, what was held by the Privy

Council in that case was when an appeal lies under Section 96

of the Code of Civil Procedure the High Court cannot entertain

an application for revision under Section 115 of the Code

because the High Court has no jurisdiction to entertain a

revision where an appeal lies. In the said case, the Privy

Council overruling an earlier Full Bench judgment of the

Madras High Court held that an appeal against an order made

by the civil court under the Madras Agriculturists' Relief Act,

1938 is maintainable, therefore, the High Court could not have

entertained a revision under Section 115 of the Act which

finding, in our opinion, does not help the appellant in the

present case. Mr. Parasaran has also relied on a judgment of this

Court in Shankar Ramchandra Abhyankar (supra) wherein this

Court held that a revision in effect is in the nature of an appeal.

Mr. Parasaran relying on this judgment argued that if revision is

in effect an appeal then the Act having prohibited a second

appeal, any proceeding which is in the nature of an appeal will

also be barred. We think this observation of this Court in the

case of Abhyankar (supra) also does not apply to the facts of the

present appeal before us. In the case of Abhyankar, this Court

noticed that the trial court had granted a decree for possession

of certain rooms in the petition scheduled premises which order

of eviction was confirmed by the appellate court on the ground

of equity. Against the said judgment of the appellate court, the

aggrieved party had preferred a revision petition before the

High Court which came to be dismissed by a Single Judge.

Having suffered an adverse order in the revision the aggrieved

party then filed a writ petition under Articles 226 and 227 of the

Constitution of India challenging the very same appellate order

which was confirmed in revision. On those facts, this Court

held that a writ petition ought not to have been entertained by

the High Court when the party had already chosen the remedy

of filing a revision before the High Court under Section 115 of

the Code. In these circumstances, this Court held that if there

are two modes for invoking jurisdiction of the High Court and

one of those modes having been chosen and exhausted, it would

not be proper for the High Court to entertain another proceeding

in respect of the same impugned order under Articles 226 and

227. It is while discussing the propriety of entertaining a writ

petition this Court had held that the aggrieved party had already

exhausted a remedy by way of revision which is in the nature of

an appeal. We do not think the observations made by this Court

in the case of Abhyankar (supra) can be usefully applied to the

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facts of this case.

The question still remains as to whether when a second

appeal is statutorily barred under the Act and when the Code is

not specifically made applicable, can it be said that a right of

revision before the High Court would still be available to an

aggrieved party ? As pointed out by Mr. Chidambaram, this

Court in the case of Nirma Ltd. (supra) while dismissing an

SLP by a reasoned judgment has held : "In our opinion, an

efficacious alternate remedy is available to the petitioner by

way of filing a revision in the High Court under Section 115 of

the Code of Civil Procedure. Merely because a second appeal

against an appellate order is barred by the provisions of sub-

section (3) of Section 37, the remedy of revision does not cease

to be available to the petitioner, for the City Civil Court

deciding an appeal under sub-section (2) of Section 37 remains

a court subordinate to the High Court within the meaning of

Section 115 of the C.P.C."

But Mr. Parasaran contended that the said order is based

on an earlier reported judgment of this Court in the case of

Shyam Sunder Agarwal & Co. vs. Union of India (1996 (2)

SCC 132). According to Mr. Parasaran, the Court in the case of

Nirma Ltd. (supra) has erroneously founded its conclusion on

the said judgment in Shyam Sunder Agarwal's case. Learned

counsel argued that the case of Shyam Sunder Agarwal (supra)

arose under the Arbitration Act, 1940 which Act had made the

provisions of the Code specifically applicable to proceedings

arising under the said Act in the civil court whereas in the

present Act such provision making the Code applicable is not

found. Therefore, there is a substantial difference in law

between the cases of Shyam Sunder Agarwal (supra) and Nirma

Ltd. (supra). Therefore, the order of this Court in Nirma Ltd.

(supra) is not a good law, hence, requires reconsideration.

We do not agree with this submission of the learned

counsel. It is true in the present Act application of the Code is

not specifically provided for but what is to be noted is : Is there

an express prohibition against the application of the Code to a

proceeding arising out of the Act before a civil court ? We find

no such specific exclusion of the Code in the present Act. When

there is no express exclusion, we cannot by inference hold that

the Code is not applicable.

It has been held by this Court in more than one case that

the jurisdiction of the civil court to which a right to decide a lis

between the parties has been conferred can only be taken by a

statute in specific terms and such exclusion of right cannot be

easily inferred because there is always a strong presumption

that the civil courts have the jurisdiction to decide all questions

of civil nature, therefore, if at all there has to be an inference

the same should be in favour of the jurisdiction of the court

rather than the exclusion of such jurisdiction and there being no

such exclusion of the Code in specific terms except to the

extent stated in Section 37(2), we cannot draw an inference that

merely because the Act has not provided the CPC to be

applicable, by inference it should be held that the Code is

inapplicable. This general principle apart, this issue is now

settled by the judgment of a 3-Judge Bench of this Court in the

case of Bhatia International vs. Bulk Trading S.A. & Anr. in

C.A.No.6527/2001 decided on 13.3.2002 wherein while

dealing with a similar argument arising out of the present Act,

this Court held : "While examining a particular provision of a

statute to find out whether the jurisdiction of a Court is ousted

or not, the principle of universal application is that ordinarily

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the jurisdiction may not be ousted unless the very statutory

provision explicitly indicates or even by inferential conclusion

the Court arrives at the same when such a conclusion is the only

conclusion."

In the said view of the matter, we are in respectful

agreement with the view expressed by this Court in the case of

Nirma Ltd. (supra) and reject the argument of Mr. Parasaran on

this question.

We also do not find much force in the argument of

learned counsel for the appellant based on Section 5 of the Act.

It is to be noted that it is under this Part, namely, Part I of the

Act that Section 37(1) of the Act is found, which provides for

an appeal to a civil court. The term 'Court' referred to in the

said provision is defined under Section 2(e) of the Act. From

the said definition, it is clear that the appeal is not to any

designated person but to a civil court. In such a situation, the

proceedings before such court will have to be controlled by the

provisions of the Code, therefore, the remedy by way of a

revision under Section 115 of the Code will not amount to a

judicial intervention not provided for by Part I of the Act. To

put it in other words, when the Act under Section 37 provided

for an appeal to the civil court and the application of Code not

having been expressly barred, the revisional jurisdiction of the

High Court gets attracted. If that be so, the bar under Section 5

will not be attracted because conferment of appellate power on

the civil court in Part I of the Act attracts the provisions of the

Code also.

Mr. Parasaran then contended that since it is an accepted

fact that this Court also has the jurisdiction to entertain an

appeal, this appeal should not be rejected on the sole ground

that there is a remedy available by way of a revision before the

High Court. In support of this contention, he relied on the

judgment of this Court in the case of Ram Shankar (supra)

wherein it is noticed that this Court had entertained an appeal

directly against a judgment and decree of a trial court bypassing

the High Court. It is true that the power of this Court to

entertain an appeal directly is not taken away merely because

another remedy is available but then the question is, should this

Court encourage litigants to indulge in hop, skip and jump to

reach this Court either for the reason that the remedy from this

Court would be quick or more efficacious ? The answer, in our

opinion, should be no. The judgment of this Court in M/s.

Central Coal Fields (supra) does not, in any way, take a contra

view from what is expressed by us hereinabove. In that case,

because of the peculiar fact-situation, this Court entertained an

appeal without the party first appreciating the High Court but

then it should be noticed that this Court did not entertain the

appeal to decide the same itself, it did so to refer the matter to

arbitration proceedings and when an award made by the learned

arbitrator was acceptable to all parties then the same was made

a rule of this Court. Such is not the situation in the present case.

Therefore, we do not think the appellant can take much support

from the above case of this Court.

Learned counsel for the appellant next contended that

assuming that the remedy of revision is available even then the

same is not an efficacious alternate remedy because this appeal

involves a very sensitive issue pertaining to the security of the

country and which, according to the appellant, requires extreme

urgency in deciding the same and the said requirement will not

be possible if the appellant has to approach the High Court. We

are not impressed with this argument addressed on behalf of the

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appellant because we notice from the record that the arbitration

proceedings have started as far back as in the year 2001 and the

parties instead of getting the arbitration concluded, have been

litigating on interim applications till date. If indeed urgency

was there then the party which feels the necessity of quick

disposal would have concentrated more on completing the

arbitral proceedings rather than spending its time in court

inviting orders of the High Court on interlocutory applications.

Therefore, we are of the opinion that there is no such urgency

which requires us to treat this case differently. In regard to the

sensitivity of the matter and the national security involved, we

do not think that these factors will, in any manner, be

compromised by approaching the High Court; more so in the

background of the fact that the parties had already approached

the High Court nearly three times without raising any objection

as to its jurisdiction or in view of its apprehension as to the

security of the State. If the facts involving such sensitive matter

could be handled by the High Court three times earlier, we

think the appellant can very well trust the High Court to protect

such interest of the country in future proceedings also.

Therefore, this argument of sensitivity or urgency, in our

opinion, will not improve the appellant's case so as to make an

exception or permit the appellant to take a short-cut to this

Court. Therefore, the above argument of the appellant should

also be rejected.

For the aforesaid reasons, while holding that this Court in

an appropriate case would entertain an appeal directly against

the judgment in first appeal, we hold that the High Court also

has the jurisdiction to entertain a revision petition, therefore, in

the facts and circumstances of this case, we direct the appellant

to first approach the High Court. For the said reasons, this

appeal fails and the same is hereby dismissed. We, however,

make it clear that should the appellant present a revision

petition within 30 days from today, the same will be entertained

by the High Court without going into the question of limitation,

if any.

J.

May 20, 2002. (N.Santosh Hegde)

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