ORDER
Krishna Saran Shrivastav, J.
1. This revision is directed against the order passed by the Subordinate Judge, Kovvur, in O.P. 63/92, dated 28-7-1994, whereby the panel arbitrators have been directed to adjudicate the dispute afresh giving opportunity to both sides.
2. Briefly stated, the facts which are no longer in dispute before me are that the respondent was entrusted with the work of execution of North Feeder Channel from K.M. 1.60 to 5.6 of Somasila Project by the Superintending Engineer, Somasila Project, Nellore and the agreement was executed vide agreement No. 9/SE/77-78. There was a term in this agreement that in case of dispute, the matter could be referred to the arbitration of the Chief Engineer, P.W.D. (R&D), Deputy Secretary to the Government, Finance and Planning Department and the Director of Accounts, Sriramsagar Project. The respondent-Contractor, alleging that correct measurement was not done and he was entitled to claim more amount from the Superintending Engineer for the work done, referred the dispute to the panel of arbitrators mentioned above. The arbitrators passed their award on 3-6-1986 whereby the claim of the respondent-contractor was rejected on the ground that he had executed a receipt evidencing final payment of work done by him. On 7-7-1986, the respondent-contractor filed an application under Section 14 of the Arbitration Act of 1940 (in short ‘the Act’) for issuance of a direction to the arbitrators to file the impugned Award in the court along with all the documents and records. This case was registered as O.P. 122/86. On the same day, the respondent-contractor filed another application under Section 30 of the Act alleging misconduct on the said arbitrators and had claimed the relief that the arbitration award dated 3-6-1986 should be set aside. This application was registered as O.P. 123/86. In both these petitions, the State of Andhra Pradesh only was made a party.
3. The lower Court, in O.P. No. 122/86 passed the following order :
“Petitioner evidence not necessary. Petition allowed without costs.”
The lower court passed the following order on the same day in O.P. No. 123/86 :
“Petitioner evidence not necessary. Allowed without costs. The petitioner can seek for new panel to decide his claim.”
4. The State of Andhra Pradesh did not challenge the order passed in O.P. No. 122/86 in revision under Section 115 of the Code of Civil Procedure and similarly it did not file any appeal against the order passed in O.P. No. 123/86, under Section 39 of the Act.
5. On 20-6-1989, the respondent-contractor filed an application under Section 20 of the Act and claimed the relief that the recored of the case should be sent to the original arbitrators for fresh adjudication of the claim on the ground that though the Award dated 3-6-1986 has been set aside, but it has not been superseded. This petition was registered as O.P. 63/1992. It was resisted by the State of Andhra Pradesh through its counter, inter alia, on the ground that the lower court had set aside the Award in O.P. 123/86 on 9-3-1989 without the Award being filed in the Court in pursuance of the order passing in O.P. No. 122/86, dated 9-3-1989 and, therefore, this order is nullity and, therefore, the court cannot send the record to the same arbitrators for adjudication afresh.
6. The lower Court taking the view that sub-section (2) of Section 14 of the Act is not a mandatory provision and relying on the case of Ittyavira Matthai v. Varkey Varkey and another , reached there conclusion that the impugned order passed in O.P. 123/86, dated 9-3-1989 is not nullity and it has become final because it had not been challenged in appeal, allowed the application and directed that the same panel of arbitrators should adjudicate the dispute afresh giving opportunity to both sides to place evidence in support of their claims within three months from the date of the order.
7. Feeling aggrieved by the impugned order, the State of Andhra Pradesh has preferred this revision.
8. It has been urged on behalf of the revisionist that the impugned order passed on O.P. 123/86, dated 9-3-1989 is nullity because no Award was available on record in pursuance of the order passed in O.P. 122/86 dated 9-3-1989 and until the Award had been placed on record as required under sub-section (2) of Section 14 of the Act, the Court had no jurisdiction to pass the impugned order and, therefore, on the basis of that order, which is no order in the eye of law, the lower court has erred in referring the matter to the same panel of arbitrators to adjudicate the alleged dispute afresh. Reliance has been placed on the case of Sanapala Suryanarayana (Died) v. Sanapala Ramchandra Rao (Died) (1962(1) An. W.R. 326), and Patel Motibhai Naranbhai and another v. Dinubhai Motibhai Patel and others . It has been further urged on behalf of the revisionist that the order in question had been passed without jurisdiction and, therefore, it is nullity. The learned Government Pleader appearing for the revisionist placed reliance on the case of Kiran Singh and others v. Chaman Paswan and others , and Ajudh Raj and others v. Motis .
9. On the other hand, relying on the case of Ittyavira Mathai, (supra) and State of Punjab and others v. Gurdev Singh , it has been argued on behalf of the respondent-contractor that the lower Court had got jurisdiction to decide the application in O.P. 122.86 and O.P. 123/86 and, therefore, it had not only jurisdiction over the subject matter but also had jurisdiction over the party. Therefore, even if the impugned order passed in O.P. 123/86 was passed without the Award being made available to it, the impugned order cannot be said to be nullity because even if the order is treated as an illegal order, the only remedy that was available to the revisionist was to challenge the same in appeal. Having not done so, the revisionist now cannot challenge that order in the proceedings drawn under Section 20 of the Act in O.P. 63/92 (63/89). It is further argued on behalf of the respondent that even if it is now declared that the order passed in O.P. 123/86 was without jurisdiction, that cannot be made a ground to set aside the impugned order passed in O.P. 63/92 because the interim order already passed had become non est vide Tayabbhai M. Bagasarwalla and another v. Hind Rubber Industries Pvt. Ltd. .
10. In the case of Sanapala Suryanarayana (2 supra), a Division Bench of this Court has held that Section 30 of the Act presupposes the production of the award into court. An award which is not before the Court cannot be set aside. Therefore, the filing of an award in Court is sine qua non to an order either under Section 17 making the judgment in terms of the award or to an order setting it aside on any of the grounds enumerated in Section 30.
11. Again, in the case of Patel Motibhai (3 supra), the Apex Court in para 4 of its judgment has observed that, under the provisions of sub-section (2) of Section 14 of the Act, an application for setting aside of an Award could be made within a period of 30 days from the date of service of the notice of the filing of the Award. Since the Award was not filed, the question of applying for setting aside of the Award did not arise.
12. The position of law that emerges from the principles referred to above is that sub-section (2) of Section 14 of the Act is a mandatory provision and unless an award is filed in the court, it cannot be set aside under Section 30 of the Act. As noted above, the lower court has passed only one line or two lines orders in O.P. 122/86, dated 9-3-1989 and in O.P. 123/86, dated 9-3-1989. No reasons have been supplied as to why the impugned Award has been set aside, particularly when allegations of misconduct had been made against the panel of arbitrators.
13. True that the order passed in O.P. 122/89 has not been challenged in revision and order passed in O.P. 123/86 has not been challenged in appeal and, therefore, it has attained finality, but, in my opinion, under the circumstances stated above, it is a fit case in which suo motu powers under Section 115 of the Code of Civil Procedure should be invoked in order to set right the illegality committed by the court below in passing the impugned order in O.P. 123/86.
14. As noted above, the lower Court has, in contravention of the mandatory provision, passed the impugned order in O.P. 123/86, without the Award being on record without discussing the alleged misconduct of the panel of arbitrators. There is no gain saying the fact that an order without reasons is grass without root. Because a manifest error has been done by the lower court, the impugned order passed in O.P. 123/86, dated 9-3-1989 is set aside. As a sequel to that, the order in question passed in O.P. 63/92 is liable to be set aside. Under these circumstances the other question raised by the parties to the revision regarding the jurisdiction of the trial court is not required to be considered and decided.
15. In result, the revision petition is allowed. The impugned order is set aside. The order passed in O.P. 123/86, dated 9-3-1989 is also set aside and the matter is remanded to the lower court with a direction to get the award made available on record and, thereafter decide the case on merits after giving both parties to the revision reasonable opportunity of being heard. Because the matter is pending from the year 1986, the lower Court is directed to expedite the hearing and dispose of O.P. 123/86 preferably within a period of three months from the date of this order. The parties through their learned Counsel are directed to appear before the trial court on 15-12-1997 for further proceedings. The Registry is directed to send the record of the lower court so as to reach before it positively before 15-12-1997. In the circumstances of the case, I leave the parties to the revision to bear their own costs.