ORDER
T.S. Thakur, J.
CM 1485/2006
1. There is a delay of 12 days in the filing of this appeal under Section 39 of the Arbitration Act, 1940. The present application has been filed by the appellant seeking condensation of that delay. The application is accompanied by an affidavit. Mr. Sharma, counsel appearing on behalf of the respondent does not seriously oppose the prayer for condensation. Even otherwise, the appellant has, in our opinion, made out a case for condoning the delay in presentation of the appeal. We accordingly allow CM 1485/2006 and condone the delay of 12 days.
FAO(OS) 51/2006 and CM 1484/2006
The appeal arises out of an order passed by the learned Single Judge of this Court whereby an application/objection under Sections 30/33 of the Arbitration Act, 1940 has been dismissed in the absence of the applicant/appellant herein and the award made a Rule of the Court. The appellant has assailed the correctness of the said order primarily on the ground that since the appellant was not present on the date the matter was called on for hearing, the learned Single Judge could have at best dismissed the application/objections for non-prosecution. He could not have, argued the learned Counsel, heard the matter ex parte to dismiss the application/objections on merits. Inasmuch as the learned Single Judge had done so, he committed a mistake, which was open to correction in appeal.
2. Mr. Sharma, counsel appearing for the respondent made a valiant attempt to support the order passed by the leaned Single Judge but eventually conceded that the procedure adopted by the learned Single Judge was not in accordance with the Code of Civil Procedure, which is applicable to the Arbitration Act in light of Section 41 of the Arbitration Act read with Section 141 CPC. He urged that this Court need not examine the merits of the controversy and that the matter could be remitted back to the learned Single Judge for a fresh hearing and disposal in accordance with law.
3. The legal position as regards the application of the Code of Civil Procedure to proceedings under the Arbitration Act, 1940 is settled by the decision of the Supreme Court in Union of India and Ors. v. Manager, Jain and associates . Dismissal of a suit on merits in the absence of the plaintiff is not an option with the Court under Order 9 Rule 8 of the Code of the Civil Procedure unless the defendant has admitted either in whole or part the claim made in the suit, which was not the position in the instant case. So also the Court may decide the matter on merits under Order 17 Rule 2 only in case substantial part of the evidence had already been recorded. That is evident from the reading of the explanation to Rule 2 of Order 17 of the CPC. The position is no different in relation to appeals, which too can be dismissed only in default under Order 41 Rule 17 and not on merits. Explanation to Rule 17 of Order 41 makes that position amply clear. We need not dwell any further on the legal proposition that a Court cannot dismiss a suit or an appeal on merits in the absence of the plaintiff or appellant except in situations covered by Order 9 Rule 8 and Order 17 Rule 2 of the CPC. The present case did not, however, fall in anyone of these situations. Mr. Sharma was, therefore, perfectly right in conceding that the order passed by the Single Judge was legally unsustainable and that the matter shall have to be remitted back for a fresh hearing and disposal in accordance with law.
4. In the result, we allow this appeal, set aside the impugned order and remand the matter back to the learned Single Judge with the request that the application/objections filed by the appellant to the award in question may be heard and decided afresh in accordance with law. The parties are directed to appear before the learned Single Judge for directions on 6th November, 2007. No costs.