Krishan Lal (Dead) Through Lrs. Vs. Union of India - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the authorities, however, required the contractor to supply an additional quantity of 255 tonnes which he failed to supply and contended that he was not obliged to supply the same under the terms of the agreement. in this view of the matter, the impugned order as well as the award dated 12-2-1976 cannot be sustained.n.k. sodhi, j. 1. on march 23, 1974 krishan lal petitioner (contractor) entered into an agreement with the union of india through the deputy director of military farms for the supply of 900 tonnes of loose white bhoosa to the military authorities. the agreement contained an arbitration clause. the contractor supplied the requisite quantity within the stipulated period. the authorities, however, required the contractor to supply an additional quantity of 255 tonnes which he failed to supply and contended that he was not obliged to supply the same under the terms of the agreement. it is alleged that the union of india made purchases of the additional quantity from the open market at the risk and responsibility of the contractor for which they suffered some loss. a notice was issued to the contractor for the recovery of rs. 18,625.50 on account of the loss allegedly suffered by the union of india. disputes having arisen between the parties the same were referred to the sole arbitration of colonel g. s. hundal. it is not in dispute that the arbitrator issued notices to the parties to appear before him on 12-2-1976. on this date the parties appeared before him at about 10.30 a.m. and the contractor appeared along with his counsel. the arbitrator announced his award on the same day at around 12.00 noon and awarded a sum of rs. 18,625.50 in favour of the union of india which was a claimant before the arbitrator. it was further ordered that the security of rs. 7,900/- deposited by the contractor may be forfeited towards the payment of the awarded amount and the balance amount of rs. 10,725.50 be realised from him. the award was filed in the court on 26-2-1976 for being made a rule of the court. notice of the filing of the award was given to the parties and the contractor filed his objections challenging the validity of the award on various grounds. it was pleaded that he (the contractor) had not been given any opportunity to lead his evidence in support of his case and that under the agreement he was under no obligation to supply the additional quantity of bhoosa as demanded by the military authorities. it was further pleaded that there was no evidence on the record to show as to what loss or damage was suffered by the union of india by the non-supply of the additional quantity of bhoosa and that the arbitrator decreed the claim of the union of india as made by it without inquiring into the matter. the pleas of the contractor were controverted by the union of india and the following issues were framed : '(1) whether the award is illegal, void and inoperative on the grounds of para no. 2a, b, c, d and e in the objection petition onus objector. (2) relief.' 2. on a consideration of the evidence led by the parties the trial court was of the view that the contractor had not been afforded any opportunity to lead his evidence before the arbitrator and that the latter had misconducted himself thereby rendering the award liable to be set aside. consequently, the objection petition filed by the contractor was accepted and the impugned award set aside. on appeal, the learned district judge reversed the findings recorded by the trial court and came to the conclusion that as per the general conditions of the contract the contractor was liable to supply the additional quantity of 225 tonnes of bhoosa and that not having been done, the officer-in-charge, military farm, ferozepore was entitled to purchase the same from other sources at the risk and expense of the contractor. the lower appellate court also found that merely because the arbitrator pronounced the award on the same day one which the contractor had been summoned was no ground to hold that the contractor had been denied an opportunity to lead his evidence. according to the learned district judge, the contractor should have filed an application before the arbitrator making his intention known that he wanted to lead evidence and not having done so it could not be held that any opportunity had been denied to the contractor. the appeal was allowed as per order dated 3-12-1980 and the impugned award made a rule of the court. it is against this order that the present revision petition has been filed. 3. i have heard counsel for the parties and in my opinion the revision petition deserves to succeed. the disputes between the parties were referred to the arbitrator as per letter of the army headquarters dated 23-12-1975. colonel hundal who was the sole arbitrator issued notices to the parties to appear before him on 12-2-1976. it is in evidence that the parties appeared between 10 and 10.30 a.m. on that day and that the award was pronounced by the arbitrator at around 12.00 noon. it is true that the contractor who appeared alongwith his counsel did not file an application seeking permission to lead evidence in support of his case but that, to my mind, will not disentitle him to lead evidence which as otherwise his entitlement. the award of the arbitrator does not make any mention that the contractor did not want to produce any evidence. it is not the case of the union of india that the contractor admitted the claim as made by the respondent. that being so, the contractor should have been afforded an opportunity to file his reply and also lead evidence in support of his claim. an arbitrator who performs quasi-judicial functions is supposed to adhere to the principles of natural justice and should not make a farce of the inquiry before him. he must give full opportunity to the parties to file their claims/replies, if any, and allowed them to adduce evidence in support of their respective pleas. since the arbitrator did not allow the contract to lead his evidence, i agree with the trial court that the arbitrator acted in violation of the principles of natural justice and committed judicial misconduct. in this view of the matter, the impugned order as well as the award dated 12-2-1976 cannot be sustained. 4. in the result, the revision petition is allowed and the impugned order dated 3-12-1980 passed by the district judge, ferozepore making the award a rule of the court set aside. consequently, the award dated 12-2-1976 is also set aside. it will, however, be open to the union of india to appoint a fresh arbitrator and if so appointed he shall proceed in accordance with law. 5. petition allowed.