Case Note & Summary
The dispute arose from a contract awarded to Shyam Sunder Agarwal & Co. by the Union of India for levelling sites at Mashipur near Silchar. Differences over payment led to arbitration, and the sole arbitrator, the Engineer-in-Chief, Defence Headquarters, New Delhi, made a non-speaking award on July 28, 1982, for Rs.6,72,645.56 in favour of the contractor with 10% interest from the date of award until realisation. On August 11, 1982, the contractor filed the award before the Assistant to the Deputy Commissioner at Shillong. The Union of India filed objections under Section 30 of the Arbitration Act, 1940, but the Assistant rejected the objections and made the award a rule of court. The Union of India appealed under Section 39 of the Arbitration Act to the Deputy Commissioner, who dismissed the appeal, and a decree was drawn up. The Union of India then filed a revision petition under Rule 36A of the Rules for the Administration of Justice and Police in the Khasi and Janitia Hills, 1937 before the Gauhati High Court. A Single Judge of the High Court, disagreeing with an earlier Single Bench decision in Union of India v. D.S. Narula & Co., referred the question of maintainability to a Division Bench. The Division Bench, by judgment dated October 8, 1991, held that revision was maintainable and directed the revision to be decided on merits. The contractor appealed to the Supreme Court. The main legal issues were whether a revision under Rule 36A or Section 115 CPC lies against an appellate order under Section 39 of the Arbitration Act despite the bar on second appeals, and whether the special Rules applied to disputes involving non-tribal parties. The appellant argued that the Rules applied only to disputes between Khasi or Janitia tribes and that the Arbitration Act did not contemplate any revision of an appellate order. The respondent maintained that the revision was maintainable. The Supreme Court examined Sections 39, 40, 41, and 47 of the Arbitration Act, Section 115 CPC, and Rules 31 and 36A of the special Rules. It held that Section 39(2) only bars a second appeal and does not affect revisional jurisdiction. It found that the appellate court under Section 39 is a court subordinate to the High Court and that Section 115 CPC applies. The Court also rejected the appellant's contention that the Rules applied only to tribal disputes, noting that the Rules provide a special civil forum for the entire area and that the appellant had submitted to the jurisdiction. The Supreme Court dismissed the appeal, upholding the maintainability of the revision and directing its disposal on merits.
Headnote
A) Arbitration - Maintainability of Revision Against Appellate Order Under Section 39 - Section 39(2) bars second appeal but not revisional jurisdiction under Section 115 CPC or Rule 36A - Arbitration Act, 1940, Sections 39, 41; Code of Civil Procedure, 1908, Section 115; Rules for the Administration of Justice and Police in the Khasi and Janitia Hills, 1937, Rule 36A - The Gauhati High Court Division Bench held that revision under Rule 36A was maintainable against an appellate order passed under Section 39 because no second appeal lies and the appellate court is a court subordinate to the High Court. The Supreme Court examined whether the express bar on second appeals also bars revision - Held that the bar on second appeal does not impliedly bar revisional jurisdiction, and the High Court's revisional power under Section 115 CPC remains available. B) Civil Procedure - Revisional Jurisdiction of High Court - Section 115 CPC applies to any decision of a court subordinate to it if no appeal lies, subject to three clauses - Code of Civil Procedure, 1908, Section 115 - The appellate authority under Section 39 of the Arbitration Act is a court and its proceedings are judicial; therefore a revision is maintainable even though a second appeal is expressly barred - Held that the Division Bench correctly answered the reference in favor of maintainability of the revision application. C) Applicability of Special Rules - Territorial and Tribal Application - Rules for Administration of Justice and Police in Khasi and Janitia Hills, 1937 are not confined to Khasi or Janitia tribe members only - Rules for the Administration of Justice and Police in the Khasi and Janitia Hills, 1937, Rules 31, 32, 33, 36A - The appellant contended that the Rules applied only to disputes between Khasi or Janitia tribes, but the Court rejected this because the Rules provide a special civil forum for the area and Rule 32 refers to all indigenous inhabitants while Rule 36A includes tribal rights but not exclusively; the appellant had also submitted to the jurisdiction - Held that the contention of non-availability of Rule 36A was not countenanced.
Issue of Consideration
Whether a revision petition under Rule 36A of the Rules for the Administration of Justice and Police in the Khasi and Janitia Hills, 1937 or Section 115 of the Code of Civil Procedure, 1908 is maintainable against an appellate order passed under Section 39 of the Arbitration Act, 1940, and whether the special Rules apply only to tribal disputes.
Final Decision
The Supreme Court dismissed the appeal, upholding the Division Bench's decision that revision under Rule 36A and Section 115 CPC is maintainable against an appellate order under Section 39 of the Arbitration Act, 1940. The Court rejected the appellant's argument that the Rules apply only to tribal disputes and directed the revision to be disposed of on merits.
Law Points
- Revision under Section 115 CPC maintainable against appellate order under Section 39 Arbitration Act
- Section 39(2) bars second appeal but not revisional jurisdiction
- Rule 36A of Khasi and Janitia Hills Rules confers revisional power on High Court
- appellate court under Section 39 is a court subordinate to High Court
- Rules for Khasi and Janitia Hills apply to all disputes in the area not only tribal disputes
- Section 47 Arbitration Act makes Act applicable to all arbitrations subject to other laws
- non-speaking award can be made rule of court
