IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.187 of 2007
SHIVAM HOUSING PVT.LTD & ANR.
Versus
THAKUR MITHILESH KUMAR SINGH & ANR.
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ORDER
20. 25.02.2011 I have already heard Mr. Pushkar Narain Shahi,
the learned counsel appearing on behalf of the appellants
and Mr. S.K.Verma, the learned senior counsel appearing
on behalf of the respondents.
(2) This Miscellaneous Appeal has been filed
under Section 37(i) (b) of the Arbitration and Conciliation
Act, 1996 against the order dated 21.04.2007 passed by
the learned Sub Judge I, Patna City in Miscellaneous
Application No.3 of 2007 whereby the Sub Judge
dismissed the Miscellaneous Application filed by the
appellants under Section 34 of the Arbitration and
Conciliation Act, 1996.
(3) It appears that the respondents filed
request case no.36 of 2005 before this Court for
appointment of Arbitrator and by terms of order dated
03.07.2006, Hon’ble Mr. Justice B.P.Sharma(retired) was
appointed Arbitrator to adjudicate the dispute between
the parties arising out of development agreement in
question. Since Hon’ble Mr. Justice B.P.Sharma declined
to proceed with the arbitration, this Court by order dated
08.09.2006 appointed Hon’ble Mr. Justice
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R.N.Prasad(retired) as Arbitrator to adjudicate the
dispute between he parties. The Arbitrator vide his
award dated 05.02.2007 held that the claimants-
respondents are entitled to Rs.49,32,000 from the
appellants. The appellants then filed an application under
Section 34 of the Arbitration and Conciliation Act,
1996(Annexure-1 to this memo of appeal) before the
Court of Sub Judge I, Patna City on 16.04.2007 for
setting aside the award.
(4) By impugned order dated 21.04.2007, the
learned Sub Judge held that this application under
Section 34 has been filed after lapse of prescribed time
and no condonation petition has been filed on behalf of
the petitioner and also held that the Sub Judge has got
no power to set aside the order dated 05.02.2007 passed
by Ex-Justice, Mr. R.N. Prasad in Arbitration Case No.2 of
2006 and accordingly, the Miscellaneous Case No.3 of
2007 was dismissed at the admission stage itself.
(5) The learned counsel for the appellants
submitted that according to Section 34 (iii) of the
Arbitration and Conciliation Act, 1996, an application for
setting aside award can be filed within three months from
the date of the award and admittedly, in this case, the
award is dated 05.02.2007 and the application under
Section 34 was filed on 16.04.2007 which is within three
months. The learned counsel further submitted that the
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learned Court below has wrongly held that Sub Judge has
got no power to set aside the award as it has been
passed by Ex-Justice. According to the learned counsel in
view of the provisions of Section 34 read with Section
2(i)(e) of the Arbitration and Conciliation Act, 1996, the
application is required to be filed before the Court as
defined under Section 2(i)(e) of the said Act and the said
Court has the jurisdiction to entertain an application and
it could only be the Principal Civil Court of original
jurisdiction which could entertain such an application as
contemplated under Section 2(i)(e) of the Act. The
learned counsel in support of his contention relied upon a
decision reported in 2000 Volume 4, P.L.J.R. 814.
(6) On the other hand, the learned counsel for
the respondents submitted that Subordinate Judge of a
District is not the Principal Civil Court of original
jurisdiction to entertain an application under Section 34
of the Arbitration and Conciliation Act, 1996. The learned
counsel submitted that only District Judge can be termed
as Principal Civil Court of original jurisdiction in a District.
According to Section 18 of the Bengal, Agra and Assam
Civil Court Act, 1887, the jurisdiction of District Judge
extends to all original suits for the time being cognizable
by Civil Courts. The learned counsel further submitted
that this Court in the case of Executive Engineer vs. Ms.
R.L.Singh reported in 1997, Volume 1, P.L.J.R. 523 has
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not considered Section 18 of the Bengal, Agra and Assam
Civil Court Act, 1887 and held that Subordinate Judge is
a Civil Court of original jurisdiction and therefore,
application under Section 8 of the Act was maintainable.
Subsequently, the said decision has been followed again
in 2000, Volume 4, P.L.J.R. 814(Md. Sadique vs. State of
Bihar) and while following the said decision, it has been
observed that as per Civil Court Act, 1887, the District
Judge or the Additional District Judge have got no original
jurisdiction and the sole power has been given to the
Subordinate Judge under the Act which is contrary to the
provision of law.
(7) The learned counsel for the respondents
conceded that the application under Section 34 was filed
within time. Therefore, so far that point is concerned, no
dispute is raised by the respondents. The only dispute
raised is that Subordinate Judge is not a Court as defined
under Section 2(i)(e) of the Arbitration and Conciliation
Act, 1996. In such circumstances, the question arises for
consideration is as to “whether the application under
Section 34 of the Arbitration and Conciliation Act is
maintainable before the Subordinate Judge or before the
District Judge.”
(8) Section 2(i) (e) defines the term “Court”
as follows:
(e) “Court” means the principal civil
court of original jurisdiction in a
district, and includes the High Court in
5exercise of its ordinary original civil
jurisdiction, having jurisdiction to
decide the questions forming the
subject-matter of the arbitration if the
same had been the subject-matter of
a suit, but does not include any civil
court of a grade inferior to such
principal civil court, or any court of
small causes;
(9) Therefore, according to the definition, it
does not include any Civil Court of a grade inferior to
such Principal Civil Court or any Court of small causes.
So far the word “Principal” is concerned, according to
Black’s Law Dictionary, it means chief, leading, most
important or considerable, primary, original, highest in
rank, authority, character, importance or degree.
Likewise, in Law Lexicon the word “Principal” is described
to mean highest in rank, authority, character, importance
or degree, most considerable or important, chief, main.
Therefore, the word “Principal” clearly indicates only one
Court being the highest in rank or chief.
(10) Section 18 of the Bengal, Agra and
Assam Civil Court Act reads as follows:
“18. Extent of original jurisdiction of
District or Subordinate Judge- Save
as otherwise provided by any
enactment for the time being in force,
the jurisdiction of a District Judge or
Subordinate Judge extends, subject
to the provisions of Section 15 of the
Code of Civil Procedure, (1908) to all
original suits for the time being
cognizable by Civil Courts.”
(11) In view of the above provision, the
jurisdiction of District Judge extends to all original suits
for the time being cognizable by Civil Court but the suits
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are filed before the Sub Judge because according to
Section 15 of the Code of Civil Procedure every suit shall
be instituted in the Court of the lowest grade competent
to try it. Only because the suits are instituted before Sub
Judge, it cannot be said that the District Judge has no
original jurisdiction to try the suit. Further Court of Sub
Judge is inferior in grade than that of District Judge so
the Court of Sub Judge cannot be the Principal Civil Court
in a District.
(12) Section 3(17) of the General Clauses Act
defines “District Judge” as the Judge of a Principal Civil
Court of original jurisdiction but shall not include a High
Court in the exercise of its ordinary or extra ordinary
original Civil jurisdiction.
(13) In the case of Executive Engineer vs. Ms.
R.L.Singh, a Bench of this Court while considering the
definition of the term “Court” as provided under Section 2
(i) (e) of the 1996 Act at paragraph 6 has observed that
“it can mean only Court having Civil jurisdiction over the
subject matter of reference. Of course, the expression
“Civil Court” as used in this Section does not include the
Revenue Court. Under the Bengal, Agra and Assam Civil
Court, 1887, the Court of Subordinate Judge is a Civil
Court having original jurisdiction.” With this observation,
it was held that application under Section 8 of the 1996
Act was maintainable before the Sub Judge. This
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decision has been followed in the case of Md. Sadique vs.
State of Bihar(supra) and at paragraph 4, it was
observed that as per Civil Court Act, 1887, the District
Judge or Additional District Judge have got no original
jurisdiction for deciding a suit and also observed that the
sole power has been given to the Sub Judge under the
Act and in that way, it was held that the Sub Judge
should be construed as the Principal Civil Court in a
District for the purpose of entertaining a suit of original
jurisdiction and not the District Judge. These
observations appear to be contrary to Section 18 of the
Bengal, Agra and Assam Civil Court Act, 1887. These
decisions of single Benches have been followed
subsequently in other decisions by this Court which are
also of single Bench. It may be mentioned here that in
the case of Executive Engineer (supra), this Court was
considering the case under Section 8 of the 1996 Act. So
far Section 8 of the Act of 1996 is concerned, this
provision confers power on judicial authority to refer the
parties to arbitration where there is a arbitration
agreement. Therefore, all authorities which can be
described as judicial authorities in the sense that they
administer justice have got jurisdiction to refer the
dispute and in that context it can be held that
Subordinate Judge can be described as judicial authority.
So far Section 34 is concerned, it specially refer to Court
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which has been defined under Section 2(i)(e) of 1996
Act.
(14) In the definition as provided under
Section 2(i)(e) of 1996 Act, the words “means” and
“includes” and the expression “does not include”, have
been used. According to the word “means” indicates that
definition is a hard and fast definition and no other
meaning can be assigned to the expression. The word
“includes” is a term of enlargement. The expression does
not include any Civil Courts of a grade inferior to said
Principal Civil Court or any Court of small causes
occurring in Section 2(i)(e) further restricts the meaning
of the term “Court” defined therein. It clearly excludes
the Courts inferior to the Principal Court of original
jurisdiction.
(15) In view of the above position, the
decisions of this Court referred to above in the case of
Executive Engineer and also in the case of Md. Sadique
and other Single Bench decisions subsequent to the
above i.e. 2001(2) P.L.J.R. 530(Bhopal Singh and others
vs. Nagendra Narain Singh) and 2000(4) P.L.J.R.
843(Thakur Prasad Singh vs. The State of Bihar & Anr.)
requires re-consideration by a larger Bench for deciding
the question as to “whether it is the Subordinate Judge or
the District Judge which should be construed as being the
Principal Civil Court of original jurisdiction in a district for
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the purpose of a petition under Section 34 of the
Arbitration and Conciliation Act, 1996?”
(16) No decision of the Hon’ble Apex Court
deciding the aforesaid question is brought to the notice of
this Court. However, the other High Courts have decided
the questions and have taken contrary view than that of
this Court.
(17) The office may place this matter before
the Hon’ble the Chief Justice for constitution of a larger
Bench to decide the above question.
( Mungeshwar Sahoo, J.)
Saurabh