In case of direct recruitment, seniority cannot be fixed in terms of roster points and should be on the basis of merit list only. A draft proceedings when objection raised by some employees

 

PROCEDINGS OF THE COMMISSIONER OF COMMERCIAL TAXES,

TELANGANA STATE :: HYDERABAD.

 

Present: V.ANIL KUMAR, I.A.S.,

 

TS CCT’s Ref.No.C(DX2)/937/2012 – Zone VI (1995 batch)      Dated: 04.06.2016

Sub: SUITS – O.A.No.3960/2012 filed by Smt.N.Aruna, DCTO, and     D.Shailaja, DCTO (1995 DR  ACTOs of Zone-VI) before the Hon’ble APAT –  Orders passed - Revised integrated seniority list of   ACTOs for the  panel year 1992-93 to 1999-2000 of Zone VI – As per APPSC Merit

                     Ranking   - Revised Integrated show cause notice issued – Objections

                     Called for – Objections received – Examined – Final – Orders –

                     Passed Reg.

 

            Ref:   1.CCT’s Ref.No. DX2/1469/2011-Zone VI, dtd. 23-4-2012.

          2. Orders of The Hon’ble APAT O.A.No.3960 of 2012, dated.          15.10.2012.

                      3. G.O.Rt. No.28, Revenue (CT.I) Department, Dt.23-01-2015.

                      4. Representation of Smt. N.Aruna, DCTO, Zone VI, Dt.05-11-2012           (1995 DR  ACTO batch)

          5.  Representation of Smt D.Shailaja, DCTO, Zone VI,  dt. 05-11-2012.

   (1995 DR  ACTO batch)

                     6. TS CCT’s Ref. No. C(DX2)/937/2012-1, dtd. 13-1-2016.

       7. Representation of Sri M. Dhananjaya Naik, CTO, Jeedimetla

            Circle, dtd. 14-03-2016.

                8. Representation of Sri P. Bheemla, CTO, Keesara Circle,

                      dtd. 14-3-2016.

                9. Representation of Sri L. Narahari, CTO, IDA Gandhi Nagar

            Circle, dtd. 14-3-2016.

                             

                                                                                                *****

                   The integrated seniority list of ACTOs for the panel year 1975-76 to 1991-92 and for the panel year 1992-93 to 1999-2000  of Zone-VI has been revised/finalized vide CCTs Ref. No. DX2/1469/2011 Zone VI, dtd. 23-4-2012. Subsequently, as per the Government orders in the reference 3^rd cited, seniority of ACTOs for the panel year 1992-93 to 1999-2000 of Zone-VI was also revised.  

             The Hon’ble APAT have issued orders dt 15-10-2012 in  O.A.No. 3960 of 2012 filed by Smt. N.Aruna and D.Shailaja, DCTO’s (DR  ACTOs of Zone-VI) with directions as follows:

               “In the light of the submissions made by the learned counsel for the applicants and in the light of the judgement in O.A. No.3044/2009 dated 26-12-2011, the O.A. is disposed of, directing the respondents to prepare fresh seniority list as per the merit ranking given by the A.P. Public Service Commission and also as per the provisions of Rule 33(b), 36(i) of the A.P. State and Subordinate Service Rules  after giving opportunity to the affected parties”.                                                    

           In view of the above orders of the Hon’ble Tribunal, Smt. N.Aruna, DCTO, and D.Shailaja, DCTO (DR ACTOs of Zone-VI) have requested the Commissioner (CT), to revise the integrated seniority list in the cadre of ACTOs (DR) only for the above panel years as per APPSC merit ranking.

              The merit list of selected candidates as per merit by direct recruitment ACTO’s of Zone-VI relating to Group-II services, Notification No’s. 8/90 has been obtained from the Secretary, APPSC, Hyderabad for implementation of the above orders of the Hon’ble Tribunal.

          In view of the above orders of A.P.A.T. in O.A. No. 3960/2012, it is proposed to revise in so far as DR ACTOs in   the seniority list of DR ACTOs batch 1995 as per their ranking given by APPSC in Zone VI i.e., Secunderabad and Hyderabad (Rural) Divisions from the panel year 1992-93 to 1999-2000 vide reference 1^st cited, to implement the merit ranking and accordingly the proposed seniority list of DR ACTOs of 1995 batch, a revised show cause notice was issued vide reference 6^th cited and affected persons were requested to file their written objections, if any,  within fifteen (15) days from the date of publication in the C.T. Department portal  www.tgct.gov.in.

            Aggrieved by the above show cause notice, the following individuals have filed objections.

1.  Sri M. Dhananjaya Naik, CTO, Jeedimetla

     Circle.

         2.  Sri P. Bheemla, CTO, Keesara Circle

         3.  Sri L. Narahari, CTO, IDA Gandhi Nagar Circle.

 

Common objections filed by Sri M. Dhananjaya Naik and Sri P. Bheemla and Sri L. Narahari, CTO’s:-

 

(a)            They stated that the individuals who filed O.A.No.3960/2012 (Smt N. Aruna and                Smt D. Shailaja) in APAT have not raised their objections either during the finalization of seniority lists by the Nodal Deputy Commissioners (CT) or during the finalization of integrated seniority list of ACTOs of Zone VI by the CCT at any stage. Further, they have neither raised any objections during the finalization of Zonal seniority lists of DCTOs of Zone VI and also during the finalization of State wide Integrated Seniority lists of DCTOs of all Zones. They have neither Appealed to the Appellate authorities nor filed any representations for revision of seniority list finalized so far in the cadre of ACTO or DCTO. Thus they do not have any moral right to question the seniority lists finalized long back which has been time barred.

 

 

(b)           The proposed revision of seniority will have a direct impact on the seniority lists in the cadre of ACTO and DCTO of all Zones in united A.P. as the lists were finalized long back at Zonal level and State level. Thus the seniority lists in the cadre of ACTOs and DCTOs have to be accordingly revised, as such all the above seniority lists have been finalized in United A.P. As per the A.P. Reorganization Act, 2014, any orders which will have impact on the orders finalized prior to the bifurcation of State of A.P. shall not be revised or modified within the period of two years from the ‘Appointed Date’ i.e. 02-06-2014.

 

            The individuals stated that as per the rule position, the seniority lists of employees joined prior to the issuance of GO Ms No. 436, General Administration (Ser. D) Department, Dated. 15-10-1996 and Government Circular Memo. No. 16 / Ser. A / 93-39, General Administration (Ser. A) Dept, Dated. 21-04-1999 shall not be disturbed or revised. The seniority of the DRs who have joined prior to 1996 shall be fixed strictly as per the inter-se list issued by the APPSC as per roaster points specified by the APPSC and the seniority of DR CTOs joined after 10/1996 shall be fixed in consultation with APPSC and as per the merit list issued by the APPSC, whereas, in my case, the APPSC was not been consulted for giving its opinion.

 

(c)             Further, they submitted that  they have joined as DR ACTO on 30-06-1995 and the newly amended rules shall not be applicable to them and the seniority lists which were  finalized long back based on the old regulations in the cadre of ACTO and DCTO shall not be disturbed now.

 

             The judgment issued in O.A. No.3960/2012 is as under.

 

“In the light of the submissions made by the learned counsel for the applicants and in the light of the judgment in O.A. No.3044/2009 dated 26-12-2011, the O.A. is disposed of, directing the respondents to prepare fresh seniority list as per the merit ranking given by the A.P. Public Service Commission and also as per the provisions of Rule 33 (b), 36 (i) of the A.P. State and Subordinate Service Rules  after giving opportunity to the affected parties”.                                                                            

             The judgment itself is the explanatory to the fact that the seniority lists have to be prepared ‘as per the merit ranking given by the A.P. Public Service Commission and also as per the provisions of Rule 33 (b), 36 (i) of the A.P. State and Subordinate Service Rules 1996’.

 

(d)           Further, they stated that the orders in O.A. No. 3960/2012 by the Hon’ble APAT were issued based on the judgment issued in O.A. No. 3044 of 2009 which is related to the DR ACTOs of Zone III, who have joined in 2005-06. Whereas, in the instant case the petitioners are the DR ACTOs who have joined in 1995 i.e. prior to 1996 and prior to the amendment of A.P. State and Subordinate Service Rules in 1996, as such they are not eligible to claim the seniority based on the merit list. Therefore, the proposed revision of seniority list of ACTOs of 1995 batch is not legally justified.

 

The individuals have requested to withdraw the proposed revision of seniority list.

Reply:

 

          The objections filed by the above individuals have been examined with reference to A.P. State & Sub ordinate Service Rules, orders of the Hon’ble Tribunal issued in respect of the Applicants in CA no.608/2014 in OA No.3960/2012, also orders of Tribunal issued in similar other cases, orders of Hon’ble High Court of Andhra Pradesh and also the orders of Hon’ble Supreme Court of India.

 

            As per Rule 33(b) and Rule 36(i) of AP State and Subordinate Rules, the inter-se-seniority among the direct recruit individuals have to be fixed as per the merit ranking assigned to them by the Andhra Pradesh Public Service Commission. The relevant Rules are extracted below:

 

A.P. State & Sub ordinate Service Rules, 1996:

 

Rule 33:

(b) The appointing authority may, at the time of passing an order appointing two or more pensions simultaneously to a service, fix either for the purpose of satisfying the rule of reservation of appointments or for any other reason the order of preference among them; and where such order has been fixed, seniority shall be determined in accordance with it :

 

Provided further that the order of merit or order of preference indicated in a list of selected candidates prepared by the Public Service Commission or other selecting authority, shall not be disturbed inter-se with reference to the candidates position in such list or panel while determining the seniority in accordance with this rule and notional dates of commencement of probation to the extent necessary, shall be assigned to the persons concerned, with reference to the order of merit or order of preference assigned to them in the said list.

 

As per clause (i) of Rule 36 of A.P.State and Subordinate Services Rules the inter-se-seniority of direct recruits shall be determined as follows:

           

“(i) In respect of the candidate selected by the Andhra Pradesh Public Service Commission or other selecting authorities by direct recruitment, shall be with reference to their ranking assigned irrespective of the date of commencement of their probation in that category.”

        Smt.Aruna and Smt.D.Shailaja, DCTOs(now CTOs) have filed O.A.No.3960 of 2012 before the Hon’ble Tribunal seeking to declare the seniority list of ACTOs of Zone VI of 1995 batch of direct recruits vide CCT’ s Ref.No. DX2/1249/2005, dated 15.11.2005 and CCT’s Ref.No.DX2/1469/2011 – Zone VI dated 23-4-2012 issued by the Commissioner of Commercial Taxes as illegal and arbitrary. 

            The applicants have contended that the seniority list issued vide above proceedings dated 23-04-2012 of the Assistant Commercial Tax Officers, belonging to the Batch of 1995 was prepared on the basis of the roster points, without preparing the same on the basis of merit ranking under Rule 33(b) and 36(i) of A.P. State and Subordinate Service Rules.   They have therefore sought directions to the respondents to prepare the seniority list on the basis of merit ranking by exercising power under Rule 33(b), 36(1) of A.P.State and Subordinate Service Rules.

        The Hon’ble Tribunal vide its orders dated 15-10-2012 have passed the following orders:

“ In the light of the submissions made by the learned counsel for the applicant and in the light of the judgment in O.A.No.3044/2009, dated 26-12-2011, the O.A. is disposed of, directing the respondents to prepare the fresh seniority list as per the merit ranking given by A.P.P.S.C. and also as per the provisions of Rule 33(b), 36(1) of the A.P.State and Subordinate Service Rules after giving opportunity to the affected parties.

        When the above orders were pending implementation for want of supply of merit lists from the APPSC, the applicants have filed Contempt Application No.608 of 2014 before the Hon’ble Tribunal.

            The C.A came up for hearing before the Hon’ble Tribunal on 22-4-2016 and after perusing the letter dated 21-04-2016 of Commissioner(CT) seeking some more time to pass the orders in the matter, the Hon’ble Tribunal adjourned the matter  finally to 20-06-2016 for full compliance of the orders of the Hon’ble Tribunal.

            The Hon’ble Tribunal in its earlier judgement in a similar case, in the OA No.3044/2009, dated 26-12-2011, passed orders as under:

“ In view of the submissions made above and after going through the material placed on record, it is appropriate to direct the respondents to prepare seniority list as per the provisions contained in Rule 33(b) and 36 of A.P.State and Subordinate Service Rules.  In the result, the OA is disposed of by setting aside the impugned seniority list issued vide proceedings No.106-A/2006/A4, dated 8-12-2008 by respondent No.1 and the respondents are directed to prepare fresh seniority list as per the ranking given by the A.P.Public Service Commissioner and also as per the provisions contained in Rule 33(b) and 36 of A.P.State and Subordinate Service Rules after giving opportunity to the affected parties.  In viw this, M.A. stands closed.”

The Hon’ble Tribunal in its orders dated 21-12-2010 in another similar case in OA No.1268/2008, relying on the judgements of Hon’ble High Court of Andhra Pradesh in W.P.No.12237 and 12238/2001, and also Hon’ble Supreme Court judgement (2003) 5 SCC 304, held that:

“The words “satisfying the rule of reservation of appointments in Rule 33(b) of the A.P.State and Subordinate Service Rules, should be understood that the roster points have to be taken into consideration to fix the number of vacancies available for them due to reservations and that does not mean that roster points are to be followed for the purpose of seniority.”

        The Hon’ble Tribunal issued following directions in the above case:

“The first respondent is directed to prepare the seniority list of direct recruits appointed pursuant to Notification No.10/99 on the basis of merit list in Table-I furnished in this order and necessary orders to be passed after giving opportunity to the effected parties within a period of 12 weeks from the date of receipt of a copy of this Order.”

        The Hon’ble High Court of Andhra Pradesh in W.P.No.12237 and 12238/2001, in the case of Smt. Victoria Devakumari vs Commissioner and Director of School Education, Government of A.P., Hyderabad, in W.P.No.12237 and 12238/2001 held that:

“The Service Commission is the recruiting agency.  The merit list prepared by it will thus, have to be followed in Special Rule 11(b) aforementioned.  For the said purpose, the State wide seniority list prepared by the Service Commission in the order of merit in terms of the aforementioned rules is required to be prepared.  Reservation policy of the State in terms of Rule 22 of the General Rules will have no bearing for preparation of seniority list, is no longer res integra.”

        Subsequently, the Hon’ble Supreme Court consisting of Three Hon’ble Judges in a case between Bimlesh Tanwar Vs. State of Haryana reported in (2003) 5 SCC 304 considered a similar question and following the earlier judgments of the Hon’ble Supreme Court have held that the seniority cannot be fixed in terms of roster points and should be on the basis of merit list only.

As per clause (i) of Rule 36 of A.P.State and Subordinate Services Rules the inter-se-seniority of direct recruits shall be determined as follows:

       

        “(i) In respect of the candidate selected by the Andhra Pradesh Public Service Commission or other selecting authorities by direct recruitment, shall be with reference to their ranking assigned irrespective of the date of commencement of their probation in that category.”

 

In view of the orders of the Hon’ble Tribunal in the case of Applicants in the OA No.3960 of 2012, and also the judgements of Hon’ble High Court of Andhra Pradesh and Hon’ble Supreme Court of India and as per Rule 33(b) and 36(i) of A.P.State and Subordinate Service Rules, there are no merits in the objections filed by Sri M.Dhananjay Naik, Sri P. Bheemla and Sri L. Narahari.  The objections of the individuals that the applicants in the above OA have never raised their objections regarding fixation of their seniority as per the merit list of A.P.Public Service Commission while finalization of seniority is not correct.  The Applications have raised their objections while finalization of their seniority in the cadre of DCTO and requested to prepare the seniority as per merit list.  Their request could not be considered for want of receipt of Merit Lists from the AP Public Service Commission.  In fact, the individuals should have impleaded in the OA filed by the Applicants if they have any grievance against the preparation of seniority list as per Merit List or appealed against the orders of Hon’ble Tribunal in the above OA.  As there are no merits in the objections filed by the individuals, same are hereby rejected.

             In view of the above, the seniority of DR ACTOs is revised as per the orders of Hon’ble APAT in O.A. No. 3960 of 2012, dated 15-10-2012.  Therefore, the proposed revision of integrated seniority of DR ACTOs of 1995 batch of Zone VI as per APPSC merit ranking  issued vide reference 6^th cited is hereby confirmed as shown in the Annexure which is subject to outcome of SLP’s/W.P’s/O.A’s/C.A’s pending, if any, before the respective Appellate forums.

 

           A copy of this order is available in the portal www.tgct.gov.in

 

Encl: Annexure

                                                                                                  Sd/- V. Anil Kumar

                                                                                     Commissioner of Commercial Taxes

 

To

All the individuals through the DCs (CT), concerned.

Copy to the Deputy Commissioner’s (CT), Secunderaband and Hyderabad

   (Rural) Nodal Divisions.

Copy to the Additional Commissioner (CT), Central Computer Wing, O/o CCT, TS,

   Hyderabad with request to place the above final orders in the portal of

   C T Department.

Copy to the Superintendent, D Section, O/o Commissioner (CT), Telangana State,

     Hyderabad.

Stock file/Spare

 

In execution petition reliefs more than one also can be prayed for since execution petition will be filed only for the purpose of execution of the decree and if the decree grants several reliefs, in the execution petition, the decree holder need not be driven to file separate E. Ps for each relief

Andhra High Court

A. Ramesh vs Chintala Prabha And Anr. on 14 August, 2001

Equivalent citations: 2001(6)ALD240, 2001(6)ALT529, 2002 A I H C 405, (2001) 6 ANDH LT 529 (2001) 6 ANDHLD 240, (2001) 6 ANDHLD 240

 

ORDER 

1. The revision petitioner who is the Judgment Debtor in E.P.No. 12 of 1997 in O.S.No. 431 of 1993 on the file of the Principal District Munsiff at Karimnagar, filed the present revision, aggrieved by the order of issuing warrant of delivery of possession against him on 22-10-1998. For the purpose of deciding the present, revision, the other factual details may not be necessary.
2. Sri Ramesh Sagar, learned Counsel for revision petitioner/ judgment debtor had raised the following contentions. Learned counsel submitted that in E.P.No. 12 of 1997, two reliefs have been prayed for, one is for recovery of rents and another is for delivery of property. The learned counsel had drawn my attention to Rule 55 and Rule 218 of A. P. Civil Rules of Practice, and also had drawn my attention to Order 21 Rule 11 of the C.P.C. and contended that the relief of recovery of money cannot be prayed for and in this view of the matter, the very E.P. containing two prayers is not maintainable and hence the order of delivery made in pursuance of such Execution Petition is unsustainable in law.
3. Sri P.V.Narayana Rao, learned counsel representing respondent/decree holder had submitted that Rule 55 and Rule 218 of the A.P. Civil Rules of Practice, 1990, are applicable only to interlocutory proceedings and also to execution applications which would be filed in the main E.P. proceedings. Learned counsel had also drawn my attention to Rule 209 of the A.P. Civil Rules of Practice, 1990 (in short hereinafter called as the Rules for the sake of convenience) and contended that in view of the specific provisions, it cannot be said that Rule 55 and Rule 218 of the Rules are applicable. The learned counsel had drawn my attention to Order 21 Rule 11 (J) of C. P. C. and contended that the reliefs prayed for in the E.P. are in accordance with law and that there is no illegality and placed reliance on VIRYALA PERRAJU v. PILLI ACHANNA, and judgment of Division Bench in D.NARAYANASWAMY NAIDU v. T.T. DEVASTHANAMS, TIRUPATI, 1994 (3) ALT 29 and contended that in the light of the ratio in the above decisions, it cannot be said that two prayers cannot be prayed for in Execution Petition as such.
4. After hearing both the parties at length, it may be appropriate to deal with the relevant provisions on this aspect before proceeding further,
5. Rule 55 of the Rules, falls under the interlocutory proceedings, which reads as follows:
6. It is relevant to look into Rule 53 of the Rules here itself, which deals with the form of interlocutory applications:
7. It is no doubt true that Rule 218 of the Rules dealing with application of rules specifies that Rules 53 to 59 and 213 supra shall apply to all applications by a party to the suit or matter made in or with respect to pending execution petition."
8. Rule 213 of the Rules reads as follows:--
9. Rule 209 of the Rules deals with application for execution, which reads as follows:
10. Now coming to the provisions of the Code of Civil Procedure, it is relevant to note Order 21 Rule 11 of C.P.C. Order 21 Rule 11(1) of C. P. C. deals with oral application and Order 21 Rule 11 (2) of C.P.C. deals with written application. The relevant portion is Order 21 Rule 11 (2) (J) which deals with the modes in which the assistance of the Court is required and the said provision reads as under:
11. In the light of these provisions, now the question that has to be decided is whether there is any illegality in the order impugned in the present revision.
12. It is no doubt true that in E.P.12 of 1997 in O.S.No. 431 of 1991 on the file of Principal District Munsiff, Karimnagar, two reliefs have been sought for. It is pertinent to note that the relief granted is only issuance of delivery warrants, that too on the ground that the Appeal itself was dismissed. Under Order 21 Rule 11(2) (J), it is pertinent to note that apart from the relief of delivery of any property specifically decreed, the relief by the attachment or by the attachment and sale or sale without attachment of any property and also by the arrest and detention in prison of any person have been specified. Here itself, it is made clear that the Code of Civil Procedure is the parent legislation and the A.P. Civil Rules of Practice, 1990, at any stretch of imagination cannot over-ride the aforesaid rules.
13. Be that as it may, the main Execution Petition, in my opinion can contain more than one relief for the reason that E.P. could be filed for execution of a decree. A decree will be drafted on the strength of a judgment, the judgment and decree may grant several reliefs to a party and while putting the reliefs granted by virtue of a decree into execution, 1 do not think that any such restriction can be placed in filing the execution petition. In the light of the above provisions read with Order 21 Rule 11(2)(J) of CPC, I am of the opinion that in execution petition reliefs more than one also can be prayed for since execution petition will be filed only for the purpose of execution of the decree and if the decree grants several reliefs, in the execution petition, the decree holder need not be driven to file separate E. Ps for each relief and for the purpose of convenience decree holder is at liberty to execute the whole decree claiming all the reliefs in one execution petition or otherwise, at least at his own choice and convenience and hence such restriction as contended by Sri Ramesh Sagar cannot be imposed, even in the light of the provisions referred to supra.
14. However, the view which I am expressing is also supported by the decisions of this Court (cited 1 and 2 supra) wherein it was held that the decree holder has a right to proceed simultaneously against two judgment debtors and also ask for more than one relief.
15. Apart from this, while exercising the jurisdiction under Section 115 of C.P.C., I am satisfied that since it was represented that the Appeal also was dismissed, the Court below was justified in issuing delivery warrant and if the impugned order is allowed to stand, it will not occasion in any failure of justice. Unless this additional ingredient also is satisfied, I am not inclined to interfere with the order of the Court below.
16. For the foregoing reasons, I am of the considered opinion that the present revision petition is devoid of merits and it is liable to be dismissed. Accordingly, the revision petition is dismissed. No costs.
x

Court can order for restoration of possession though not under S. 144, but under S. 151 of CPC when the Defendant occupy the suit land during the pendency of suit

 AIR 2006 ANDHRA PRADESH 131 ::2006 (3) All LJ NOC 613 Andhra Pradesh High Court HON'BLE JUDGE(S): C. V. RAMULU , J Specific Relief Act (47 of 1963) , S.38— Civil P.C. (5 of 1908) , S.141, S.151— Suit for bare permanent injunction - Grant of relief of restoration of possession - Validity - Plaintiff was in possession of suit schedule property as on date of filing of suit - Defendant violated interim injunction and forcibly entered into possession of suit property during subsistence of ad interim injunction - Court can order for restoration of possession though not under S. 144, but under S. 151 of CPC - No necessity for plaintiffs to amend plaint seeking restitution or restoration or recovery of possession. (Para 15A 16)

An execution petition which has been dismissed for the default of the decree-holder though by the time that petition came to be dismissed, the judgment debtor had resisted the execution on one or more grounds, does not bar the further execution of the decree in pursuance of fresh execution petition filed in accordance with law

 http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8 PETITIONER: SHIVASHANKAR PRASAD SHAH & ORS. Vs. RESPONDENT: BAIKUNTH NATH SINGH & ORS. DATE OF JUDGMENT: 07/03/1969 BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SIKRI, S.M. BACHAWAT, R.S. CITATION: 1969 AIR 971 1969 SCR (3) 908 1969 SCC (1) 718 CITATOR INFO : D 1971 SC1678 (17) RF 1971 SC2251 (7) RF 1975 SC2295 (10) RF 1978 SC1642 (20) RF 1988 SC1531 (64) 

ACT: Code of Civil Procedure-Res-Judicata-Objection against execution proceeding, when barred. Bihar Land Reforms Act, ss. 3, 4 & 6-Mortgaged Estate-Final Decree obtained-Effect of. 

HEADNOTE: After a preliminary decree was obtained by the appellants (mortgagees of an Estate including both Bakasht lands and other lands), the Bihar Land Reforms Act, 1950 came into force. The appellant filed petition for passing final decree. The Estate mortgaged vested in the State as a result of a notification issued under s. 3(1) of the Act, and later a final decree was passed in the mortgage suit. Thereafter the appellants applied under s. 14 of the Act and got determined the compensation to which they were entitled under the Act. But yet they filed an execution petition to execute the mortgage decree against the Bakasht land. The respondents resisted that execution by filing an application under s. 47, Civil Procedure Code contending that the execution was barred under s. 4(d) of the Act. That application was dismissed for default of the respondents. A second application raising, the same ground was filed by the respondents but this, too, was dismissed for their default. A third application raising the same ground was filed by the respondents and in this, the execution court overruled the objection raised by the respondents on the grounds (i) that the objection was barred by the principles of res judicata and (ii) that the bar of s. 4(d) pleaded was not tenable. This decision was affirmed in appeal, but reversed in second appeal by the High Court. Dismissing the appeal this Court; 

 HELD : (i) The objection was not barred by the principles of res judicata. Before a plea can be held to be barred by res judicata that plea must have been heard and http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8 determined by the court. Only a decision by a court could be res judicata, whether it be statutory under s. 11, Civil Procedure Code or constructive as a matter of public policy on which the entire doctrine rests. An execution petition having been dismissed for the default of the decree-holder through by the time petition came to be dismissed, the judgment debtor had resisted the execution on one or more grounds, does not bar the further execution of the decree in pursuance of fresh execution petitions filed in accordance with law. Even the dismissal for default of objections raised under s. 47, Civil Procedure Code does not operate as res judicata when the same objections are raised again in the course of the execution. [911 B-H] Maharaja Radha Parshad Singh v. Lal Sahab Rai & Ors. L.R. 17 I.A. 150, Pulvarthi Venkata Subba Rao v. Velluri Jagannadha Rao & Ors. [1964] 2 S.C.R. 310, Lakshmibai Anant Kondkar v. Ravi Bhikaji Kondkar, XXXI B.L.R. 400, Bahir Das Pal & Anr. v, Girish Chandra Pal, A.I.R. 1923 Cal. 287, Bhagwati Prasad Sah v. Radha Kishun Sah & Ors. A.I.R. 1950 Pat. 354, Jethmal & Ors. v. Mst. Sakina, A.I.R. 1961 Rai. 1959 Bishwanath Kundu v. Smt. Subala Dassi, A.I.R. 1962 Cal. 272, referred to. 909 Ramnarain v. Basudeo, I.L.R. XXV Pat. 595, disapproved. (ii)Proceedings under s. 4(d). of the Bihar Land Reforms Act, 1950 included execution proceedings and the execution could not be proceeded with. The only remedy open to the appellants was to get compensation under Chapter IV of the Act. [913 G, H] Reading ss. 3, 4 and 6 together, it followed that all Estates notified under s. 3 vested in the State free of all encumbrances. The quondum proprietors and tenure holders of those Estates lost all interests in those Estates. As proprietors they retained no interest in respect of them whatsoever. But in respect of the lands enumerated in s. 6 the State settled on them the rights of raiyats. Though in fact the vesting of the Estates and the deemed settlements of raiyat rights in respect of certain classes of lands included in the Estates took place simultaneously, in law the two must be treated as different transactions; first there was a vesting of the Estates in the State absolutely, free of all encumbrances. ’Men followed the deemed settlement by the State of raiyat’s rights on the quondum proprietors. Therefore in law it would not be correct to say that what vested in the State were only those interests not coming within s. 6. [913 C-E] Section 4(d) provided that "no suit shall lie in any civil court for the recovery of any money due from such proprietor (proprietor whose estate has vested in the State) or tenure holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped". Proceedings in this section undoubtedly included execution proceedings. [1913 F] Ramnarain v. Basudeo I.L.R. XXV Pat. 595, Raj Kishore v. Ram Pratap, A.I.R. 1967 S.C. 801; [1967] 2 S.C.R. 56, Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad, [1962] 2 S.C.R. 441 and Krishna Prasad & Ors. v. Gauri Kumari Devi, (1962] Supp. 3 S.C.R. 564, referred to. Sidheshwar Prasad Singh v. Ram Saroop Singh, 1963 B.L.J.R. 802, majority view disapproved. http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8 JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 368 of 1966. Appeal by special leave from the judgment and order dated February 3, 1964 of the Patna High Court in, Appeal from Appellate Order No. 99 of 1963. Sarjoo Prasad and R. C. Prasad, for the appellants. K. K. Sinha and S. K. Bisaria, for the respondents. The Judgment of the Court was delivered by Hegde, J. This appeal against the judgment of the Patna High Court dated the 3rd February, 1964 in its Appellate Order No. 99 of 1963 was filed obtaining special leave from this Court. It arises from a proceeding under s. 47, Civil Procedure Code. In execution of a mortgage decree, the decree-holders sought to proceed against 910 Bakasht lands of the judgment debtors. The judgment debtors objected to the same on the ground that the execution-was barred under s. 4(d) of the Bihar Land Reforms Act, 1950 (to be herein,after referred to as the Act). But that objection was overruled by the executing court on two different grounds namely (1) that the objection in question is barred by the principles of res judicata and (2) the bar of s. 4(d) pleaded is not tenable. The decision of the execution court was affirmed appeal but reversed in second appeal by the High Court. The two questions that arise for decision in this appeal are (1) whether the objection as regards the executability of the decree pleaded by the judgment debtors is barred by the principles of res judicata and (2) whether the mortgage decree has become unexecutable in view of the provisions of the Act. We shall now briefly set out the material facts of the case. The mortgages, the appellants in this appeal obtained a preliminary decree on June 26, 1947 on the basis of a mortgage. The property mortgaged was an Estate within the meaning of the Act. That property included both Bakasht lands as well as other lands. The Act came into force after the passing of the aforementioned preliminary decree. The decree-holders filed petition for passing a final decree on September 19, 1955. The Estate mortgaged vested in the State of Bihar on January 1, 1956 as a result of a notification issued under s. 3 (1) of the Act. A final decree was passed in the mortgage suit on October 1, 1956. Thereafter the mortgagees applied under s. 14 of the Act and got determined the compensation to which they were entitled under the Act. It is said that they did not proceed, any further in that proceeding but on the other hand filed on June 18, 1958 an execution petition to execute the mortgage decree against the, Bakasht lands. The judgment debtors resisted that execution by filing an application under S. 47, Civil Procedure Code (Misc. Case No. 94 of 1959) on the ground that the decree cannot be executed in view of the provisions of the Act. That application was dismissed for the default of the judgment debtors on September 12, 1959. A second application raising the same ground (Misc. Case No. 110 of 1959) was filed by the judgment debtors is barred on the principles of res judicata and further on July 23, 1960 for default of the judgment debtors. A third application raising the same ground of objection (Misc. Case No. 91 of 1960) was filed by the judgment debtors on September 12, 1960. That application was dismissed on January 4,’1962 after examining the contentions of the parties. Therein the execution court came to the conclusion that the objection raised by the judgment debtors is barred on the principles of res judicata and further that the http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8 same has no merits. This decision as mentioned earlier was affirmed by the appellate court but reversed by the High Court. We shall first take up the contention that the objection taken 911 by the judgment debtors’ is barried by principles of res judicata. Though at one stage, learned Counsel for the appellants-decree holders attempted to bring the case within Explanation 5, s. 11, Civil Procedure Code, he did not pursue that line of argument but tried to support his contention on the broader principles of res judicata. The real question for decision in this case is whether the dismissal of Misc. cases Nos. 94 and 110 of 1959 for default of the judgment debtors can be said to be a final decision of the court after hearing the parties. Before a plea can be held to be barred by the principles of res judicata, it must be shown that the plea in question had not only been pleaded but it had been heard and finally decided by the court. A dismissal of a suit for default of the plaintiff, we think, would not operate as res judicata against a plaintiff in a subsequent suit on the same cause of action. If it was otherwise there was no need for the legislature to enact rule 9, Order 9, Civil Procedure Code which in specific term say that where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. The contention that the dismissal of a previous suit for default of the plaintiffs operates as res judicata in a subsequent suit in respect of the same claim was repelled by the Judicial Committee, of the Privy Council in Maharaja Radha Parshad Singh v. Lal Sahab Rai and Ors.(1). Therein the Judicial Committee observed thus : "None of the questions, either of fact or law, raised by the pleadings of the parties was heard or determined by the Judge of the Shahabad Court in 1881; and his decree dismissing the suit does not constitute res judicata within the meaning of the Civil Procedure Code. It must fall within one or other of the sections of chapter VII of the Code; in the present case it is immaterial to consider which, the severest penalty, attached to such dismissal in any case being that the plaintiff cannot bring another suit for the same relief." From this decision it is clear that the Judicial Committee opined that before a plea can be held to be barred by res judicata that plea must have been heard and determined by the court. Only a decision by a court could be res judicata, whether it be statutory under s. 11, Civil Procedure Code or constructive as a matter of public policy on which the entire doctrine rests. Before an earlier decision can be considered as res judicata the same must have been heard and finally decided-see Pulvarthi Venkata Subba. Rao v. Velluri Jagannadha Rao, and Ors. (2). The courts in India have generally taken the view that an execution petition which has been dismissed for the default of the (1) L.R. 17 I.A. 150. (2) [1964] 2 S.C.R. 310 912 decree-holder though by the time that petition came to be dismissed, the judgment debtor had resisted the execution on one or more grounds, does not bar the further execution of http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8 the decree in pursuance of fresh execution petition filed in accordance with law--see Lakshmibai Anant Kondkar v. Ravji Bhikaji Kondkar(1). Even the dismissal for default of objections raised under s. 47, Civil Procedure Code does not operate as res judicata when the same objections are raised again in the course of the executionsee Bahir Das Pal and Anr. v. Girish Chandra Pal (1) Bhagawati Prasad Sah v. Radha Kishun Sah and OrS. (3); Jethmal and Ors. v. Mst. Sakina (4) ; Bishwanath Kundu v. Sm. Subala Dassi (5). We do not think that the decision in Ramnarain v. Basudeo(6) on which the learned Counsel for the appellant placed great deal of reliance is correctly decided. Hence we agree with the High Court that the plea of res judicata advanced by the appellant is unsustainable. The next question is whether the execution is barred under the provisions, of the Act. The contention of the judgment debtors is that it is ’so barred whereas according to the appellants as the Bakasht lands which form part of the mortgaged property had, not vested in the State, the execution can proceed against those lands. Therefore we have to see whether the entire mortgaged property had vested in the State in pursuance of the notification under s. 3 or only the mortgaged property minus the Bakasht lands. There is no dispute that the property mortgaged was an Estate within the meaning of s. 2(1) and the notification issued under s. 3 covered the entirety of the Estate. But what was urged on behalf of the appellants is that what had vested in the State was the non-bakasht lands as well as the proprietory interest in the Bakasht lands and hence the Bakasht lands do not have the protection of s. 4(d); Consequently it is not necessary for them to exclusively proceed under s. 14. The consequences of the vesting of an Estate is set out in s. 4. Section 4(a) provides that once an Estate vests in the State the various rights in respect of that Estate enumerated therein shall also vest in the State, absolutely free from all encumbrances. Among the rights enumerated therein undoubtedly includes the right of possession. In view of s. 4(a) there is hardly any doubt that the proprietor loses all his rights in the estate in question. After setting out the various interests lost by the proprietor the section proceeds to say "such proprietoror tenure holder shall (1) XXXI, B.L.R. 400. (2) A.I.R. 1923 CaI. 287. (3) A I.R. 1950 Pat. 354. (4) A. I. 1961 Raj. 59. (5) A.I.R. 1962 Cal. 272. (6) I.L.R. XXV pat. 595. 913 cease to have any interests in such estate or tenure, other than the interests expressly saved by or under the provisions of this Act". In order to find out the implication of the clause extracted above we have to go to s. 6 which provides that on and from the date of vesting all lands used for agriculture or horticultural purposes which were in khas possession of an intermediary on the-date a vesting (including certain classes of land specified in that section) shall subject to the provisions of ss. 7A and B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands, subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner. Reading ss. 3, 4 and 6 together, it follows that all Estates notified under s. 3 vest in the State free of all encumbrances. The quondum proprietors and tenure-holders of http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8 those Estates lose all interests in those Estates. As proprietors they retain no interest in respect of them whatsoever. But in respect of the lands enumerated in s. 6 the State settled on them the rights of raiyats. Though in act the vesting of the Estates and the deemed settlement of raiyats rights in respect of certain classes of lands included in the Estates took place simultaneously, in law the two must be treated as different transactions; first there was a vesting of the Estates in the State absolutely, and free of all encumbrances. Then followed the deemed settlement by the State of raiyat’s rights on the quondum proprietors. Therefore in law it would not be correct to say that what vested in the State are only those interests not coming within s. 6. Section 4(d) provides that "no suit shall lie in any Civil Court ’for the recovery of any money due from such proprietor (proprietor whose estate has vested in the State) or tenure holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped". Proceedings in this. section undoubtedly include execution proceedings. This is not a case where only a part of the mortgaged property has vested in the such the rule laid down by this Court in Raj Kishore Pratap(1) is not attracted. As mentioned earlier the State and as v. Ram entire Estate mortgaged had vested though some interest in respect of a portion of the mortgaged property had been settled by the State on the mortgagors. Under the circumstances the only remedy open to the decreeholders is that provided in Chap. IV of the Act i.e. a claim under (1) [1967] 2 S.C.R. 56; A.I.R. 1967 S.C. 801. 914 s. 14 before the Claims Officer for "determining the amount of debt legally and justly payable to each creditor in respect of his claim’. The procedure to be followed in such a proceeding is prescribed in ss. 15 to 18. ’Provisions relating to the assessment and payment of compensation payable to the quondum proprietors and tenure-holders are found in Chap. V of the Act (ss. 19 to 31.) Section 24(5) provides that "in the case where the interest of a proprietor or tenure-holder is subject to a mortgage or charge, the compensation shall be first payable to the creditor holding such mortgage or charge and the balance, if any, shall be payable to the proprietor or tenure-holder concerned:" That subsection further prescribes the maximum amount that can be paid to such a creditor. In view of what has been stated above it follows that under the circumstances of this case it is not open to the appellants to proceed with the execution. Their only remedy is to get compensation under the Act. Our conclusion receives strong support from some of the decisions of this Court. In Rana Sheo Ambar Singh v. Allhabad Bank Ltd., Allahabad(1), a question identical to the one before us, but arising under the U.P. Zamindari Abolition and Land Reforms Act, came up for consideration by this Court. One of the questions that arose for decision in that case was whether the Bhumidari right settled by the State on a previous proprietor whose estate had- vested in the State was liable to be proceeded against in execution of a mortgage decree against the Estate that had vested in the State. This Court held that it was not liable to be proceeded against. Therein it was ruled that the intention of the U.P. Zamindari. Abolition and Land Reforms Act was http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8 to vest the proprietory rights in the Sir and Khudkasht land and grove land in the State and resettle on intermediary not as compensation but by virtue of his cultivatory possession of lands comprised therein and on a new tenure and confer upon the intermediary a new and special right of Bhumidari, which he never had before by s. 18 of the Act. The provisions in that Act relating to vesting and settlement of Bhumidari rights are in all essential particulars similar to those in the Act relating to vesting and settlement of Bakasht lands. This Court further ruled in that case that the mortgagee could only enforce his rights against the mortgagor in the manner as provided in s. 6 (h) of the U.P., Act read with s. 73 of the Transfer of Property Act and follow the compensation money under the Act. In Krishna Prasad and Ors. v. Gauri Kumari Devi( 2) the question that arose for decision by the Court was whether, a mortgage decree-holder could proceed against the properties of the mortga- (1) [1962] 2, S.C.R. 441. (2) [1962] Supp. 3 S.C.R. 564. 915 gor other than those mortgaged in enforcement of the personal covenant when the property mortgaged had vested in the State under the provisions of the Act. That question was answered in the negative. In the course of the judgment Gajendragadkar, J. (as he then was) who spoke for the Court observed that there is no doubt "that the scheme of the Act postulates that where the provisions of the Act apply, claims, of the creditors have to be submitted before the Claim Officer, the claimants have to follow the procedure prescribed by the Act and cannot avail of any remedy outside the Act by instituting suit or any other proceeding in the court of ordinary civil jurisdiction." Proceeding further he observed "It is in the light of this scheme of the Act that we must revert to section 4(b) and determine what its true scope and effect are. Mr. Jha contends that in construing the words of Section 4 (d) it would be necessary to bear in mind the object of the Act which was merely to provide for the transference to the State of the interests of the proprietors and tenure-holders in land and of the mortgagees and lessees of such interests. It was not the object of the Act, says Mr. Jha, to extinguish, debts due by the proprietors or tenure-holders and so, it would be reasonable to confine the operation of s. 4 (d) only to the claims made against the estates which have vested in the State and no others. In our opinion, this argument proceeds on an imperfect view of the aim and object of the Act. It is true that one of the objects of the Act was to provide for the transference to the State of the estates as specified. But as we have already seen, the provisions contained in section 16 in regard to the scaling down of the debts due by the proprietors and tenure- holders clearly indicate that another object which the Act wanted to achieve was to give some redress to the debtors whose estates have been taken away from them by the notifications issued under section 3. Therefore, in construing s. 4(d), it would not be right to assume that the interests of the debtors http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8 affected by the provisions of the Act do not fall within the protection of the Act" and again at page 578 "Having regard to the said scheme, it is difficult to confine the application of s. 4(d) only to execution proceedings in which the decree-holder seeks to proceed against the estate of the debtor. In fact, an execution proceeding to recover the decretal amount from the estate which has already vested in the State, would be incompetent because the said estate no longer belong to the judgment- debtor." Sup CI-69-9 916 Summarising the effect of the aforementioned decisions this is what this Court observed in Raj Kishore’s case(1)-a case arising under the Act: From the principles laid down by this Court in the above two decisions, follows that where the whole of the property mortgaged is an estate, there can be no doubt that the procedure prescribed by Chapter IV has to be followed, in order that the amount due to the creditor should be determined by the claims officer and the decision of the claims officer or the Board has been made final by the Act." For the reasons mentioned earlier we are of the opinion that the decision of the majority of the judges in the Full Bench decision in Sidheshwar Prasad Singh v. Ram Saroop Singh(2) is not correct. The true effect of the decisions of this Court in Rana Sheo Ambar Singh’s case(3) and Krishna Prasad’s case(4) is as explained by Kamla Sahai, J. in that case. In the result this appeal fails and it is dismissed with costs. Y.P. Appeal dismissed. (1) [1967]2 S.C.R. 56 A.I.R. 1967 S.C. 801. (2) [1963] B.L.J.R. 802. (3) [1962] 2 S.C.R. 441. (4) [1962] Supp, 3 S.C.R. 564 917

Not quoting the correct provision of law is not a ground to refuse the relief if the party is entitled to such relief under some other provisions which is not quoted

 

Andhra High Court

Nicholas Piramal India Limited vs Cultor Food Science Inc. And Ors. on 1 November, 2002

Equivalent citations: AIR2003AP254, 2003(1)ALT312,

1. This petition is filed to review the common order dated 12-12-2001 in AAO No. 1285 of 2001 and CRP No. 3497 of 2001.

2. For the sake of convenience we would hereinafter refer to the parties as they are arrayed in the appeal.

3. At the outset we express our regret for signing the common order, sought to be reviewed, without correcting the typographical errors and mistakes that crept therein, which are noticed by us during the hearing of this petition. Since as per Section 152 CPC, Court has power to correct such errors, we order the following corrections in the common order dated 12-12-2001 .

(i) In page 2 'para 3 line 9' delete the word 'and' after WELTOL PLUS' and before 'culminated'.

(ii) In para 4 at page 3 'lines 18 and 19' delete the sentence reading "whatever strong words they are made, are not sufficient to establish fraud or misrepresentation the allegation of fraud" and substitute the sentence "in however strong words they might have been made, are not sufficient to establish fraud or mispresentation and so the allegations relating to fraud".

(iii) In line 14 at page 4, para 4, delete the words 'and so' in between the words 'filing of the suit' and '1st'.

(iv) In line 14, para 6 at page 8, add the sentence reading 'in support of his contention' after 'Kotak and Company'.

(v) In line 19 at page 10, substitute the words "were to culminate" in place of the word 'only can terminate' in between the words 'even if and 'in award'; delete the word 'which' in between the words 'in an award' and 'would'. In line 20 of the same para substitute the word 'affect' in place of the word 'effect'. At the beginning of line 21 in the same para, add the sentence reading 'he did not enter into' before the words 'the agreement', and delete the words 'was not entered into' in between the words 'the agreement' and 'and since'; substitute the word 'in' in place of the word 'by' in between the words 'himself and 'an'.

(vi) In line 7 of para 8 at page 11, add the words 'an injunction' before the word 'restraining' and the word 'the' between the words 'restraining' and 'Kartha'. In line 21 of para 10 on the same page substitute the sentence 'or relating to the contract' in place of the sentence 'or related to the contracted'.

(vii) In line 13 at page 12, substitute the word 'with1 in place of 'and1 in between the words 'them' and 'a consequential'.

(viii) In line 3 at page 14, substitute the word 'sought' in place of 'and' and in line 9 on the same page substitute the words 'by observing' in place of the word 'after holding' and substitute the word 'has' in place of 'had' in between the words 'that it' and 'jurisdiction'.

(ix) In line 3 of para 11 at page 17, substitute the word 'express' in place of 'expressed'.

(x) In lines 12 and 13 of para 16 at page 21, delete the sentence 'For that reason and in view of the ratio in the said decision1 and in line 13 add the sentence reading 'since the said decision was' before the word 'rendered under'. In line 14 add the sentence 'in view of the ratio in' in between the words 'repealed' and ' Sundaram Finance'.

(xi) In line 6 at page 23, delete the word 'already' in between the words 'had' and 'sought1.

(xii) In line 1 at page 26, add the word 'jurisdiction' in between the words 'having' and 'to'. In lines 2 and 3 delete the sentence reading 'after dismissing the petition filed by 1st respondent to review the said order (LA. No.2390 of 2000)' and in its place substitute the sentence reading 'and after having dismissed IA No.2390 of 2000 filed by the 1st respondent to review the observation in the order in IA No. 1641 of 2000 directing the parties to approach the agreed forum'. In line 5 substitute the word 'erroneous' in place of the word 'incorrect'.

(xiii) In line 12 and 13 at page 27, delete the sentence reading 'and that considerable money has to be spent to participate in those proceedings would not' and in its place substitute the sentence reading 'and it involves spending of considerable amount of money for participation in those proceedings, is not and cannot'.

4. The point for consideration is whether there are grounds to review the common order dated 12-12-2001.

5. This application is filed mainly on the ground that distinction between the powers of the Court vis-a-vis the Arbitrator appointed under Domestic Arbitration as per Sections 8 and 16 of the Arbitration and Conciliation Act, 1996 (the Act) and the arbitration that takes place under New York Convention as per Sections 44 and 45 of the Act was not kept in view while passing the order dated 12-12-2001 sought to be reviewed. The basis for the said assumption of the 1st respondent is that, in para 26 of the common order it was observed that interference by civil Court should be minimal in view of Section 16 of the Act, when Section 16 of the Act applies only to domestic arbitrations but does not apply to international arbitrations covered by New York Convention, which are governed by Section 45 of the Act, corresponding to Section 3 of Foreign Awards (Recognition and Enforcement) Act, 1961 (1961 Act).

The contention of the learned Counsel for 1st respondent is that law relating to arbitration covered by New York Convention remained the same, as under 1961 Act, even after the coming into force of the Act, by relying on PWH Analgen v. Damodar Ropeways, 1996 (II) CHN 97, where it is held in para 34 at page 110 that despite repealing the 1961 Act, Chapter I Part II of the Arbitration and Conciliation Ordinance, 1996 (which is the same as Chapter I Part n of the Act) substantially re-enacted the provisions thereof with some modifications and that Section 44 of the Ordinance materially re-enacted Section 2 of 1961 Act, Section 45 replaced Section 4, Section 47 replaced Section 6, Section 48 replaced Section 7 and Section 57 replaced Section 9(a) of 1961 Act. Reliance is also placed on the observations in paras 36 to 38 of the said Judgment, which read as under:

"(i) Under the 1961 Act an application under Section 3 could be made to a Court before which a legal proceeding was pending at any time after appearance and before filing a written statement or taking any other step in the proceeding. Under Section 45 of the Ordinance there does not appear to be any such time limit placed on the making of an application.

(ii) The second major difference relates to the nature of the power to be exercised by the Court before which the application is made. Under Section 3 the power of the Court to make an order staying the legal proceedings pending before it. Under Section 45 of the Ordinance the Court is required to refer the parties to arbitration.

Apart from these two differences the substance of the two sections is similar: namely (i) an application may be made by one of the parties to an arbitration agreement or any person claiming through or under him; (ii) the arbitration agreement must be one to which- the New York Convention applies; (iii) a proceeding must be pending before a Court; (iv) the legal proceedings must be in respect of a matter agreed to be referred; and (v) unless the agreement is found null and void, inoperative or incapable of being performed, the Court is bound to exercise its powers under the section.

38. By including substantially similar provisions in Section 45 of the Ordinance it is clear that it was not the intention to destroy the right of a petitioner under Section 3 of the 1961 Act at all. If anything, the Ordinance has strengthened the right. There being no 'different intention' in the Ordinance within the meaning of Section 6 of the General Clauses Act, I hold that PWH's application under Section 3 of the 1961 Act is still maintainable."

It is further contended by the learned Counsel for the 1st respondent that the ratio in Renusagar Power Company Limited v. General Electric Company and Anr., , and Sunita Conductors Limited v. Euro Alloys Limited, 2001 (7) SCC 728, is that the validity of effect of arbitration agreement in respect of International Arbitration can be determined by the Court (1) before the commencement of arbitration proceedings, (2) during the pendency of arbitration proceedings, and (3) after the award is made and filed into Court, when civil Court in India is seisin of the issue relating to the validity of the arbitration agreement, even when arbitration proceedings are pending, it is incumbent upon the Court to decide the issue relating to the validity of the arbitration agreement in the first instance, because the decision of the Court would be binding on the Arbitrator. He further contended that question of prima facie case, balance of convenience, and irreparable loss arise when injunction is sought under Rules 1 and 2 of Order 39 CPC but not in cases where injunction is sought under Section 151 CPC and since injunction sought by the 1st respondent is not covered by Rules 1 and 2 of Order 39 CPC, the question would be whether 1st respondent is entitled to injunction under Section 151 CPC. He relied on Rajnibai (Smt) alias Mannubai v. Kamla Devi (Smt), , in support of his contention that Court has power to grant injunction under Section 151 CPC in cases not covered by Rules 1 and 2 of Order 39 CPC. His contention is that when an injunction is to be granted under Section 151 CPC, question of balance of convenience and prima facie case pale into insignificance, and in this type of cases, in the interests of injustice, injunction should automatically follow on the filing of the suit, as otherwise the purpose of filing the suit would be lost. He relied on Surjit Singh v. Union of India, , where it is held that when there is an error apparent on the face of the record, and when a law is not properly interpreted, the Court should review the judgment; 5, Nagarj v. State of Karnataka, 1993 (5) SLR 1, where it is held that the Court is not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for the sake of justice; CST v. Pine Chemicals Limited, (1995) SCC 58, where it is held that interpretation of law, inconsistent with the earlier decisions delivered by a co-ordinate Bench and Larger Bench, amounts to an error apparent on the face of the record and hence, can be reviewed; Natesa Naicker v. Sambanda Chettiar, (28) AIR 1941 Mad. 918, where it is held that omission to notice correct legal position amounts to an error apparent on the face of the record and in such cases the Court can view its earlier judgment; Thungbhadra Industries Limited v. Govt. of A.P., , where it is held that Supreme Court's refusal to entertain an application for special leave is not a bar to the High Court to review its Judgment, if there are grounds for such review; Murari Rao v. Balvanth Dikshit, AIR 1924 Mad 98, where it is held that the word 'error' need not necessarily be limited to "errors of fact" and 'error of law' also would come within the meaning of Rule 1 of Order 47 CPC; Oriental Insurance Company Limited v. Gokulprasad Maniklal Agarwal, , where it is held that wrong explanation of a Counsel relating to the rule position is a good ground for review and K.L. Nandakumaran Nair v. K.I. Philip, , where it is held that non-consideration of important documents is a ground for review. He contended that since CMP 21689 of 2001 filed under Rule 27 of Order 41 CPC to receive certain documents as additional evidence was not considered at the time of disposal of the CMA, it resulted in grave injustice to the 1st respondent and so the common order dated 12-12-2001 may be reviewed.

6. The contention of the learned Counsel for the appellant is that there are no grounds for review, since all the pleas now raised were considered in the common order and so the remedy, if any, for the 1st respondent is to file an appeal, and that power to review can be exercised only for correction of a mistake, but not to substitute a decision already made, as a proceeding for review is not an appeal in disguise. He contended that in cases where there is a possibility of taking two views, the fact that the Court took one such view is not a ground for review, and so this petition for review is not maintainable. He relied on Lily Thomas v. Union of India, AIR 2000 SC 1650, and Northern India Caterers v. Lieutenant Governor, Delhi, , in support of his contentions.

7. We are not able to agree with the contention of the learned Counsel for the 1st respondent that non-consideration of CMP No. 21689 of 2001 at the time of disposal of the CMA resulted in either injustice or grave injustice to the 1st respondent. The documents sought to be introduced as additional evidence were the written statement filed by the appellant in the suit, the rejoinder filed by the 1st respondent in the suit and application filed by the 1st respondent to receive the rejoinder and a copy of the plaint in OS No.4 of 2001 filed by the Principal of the 1st respondent against the appellant. Written statement filed by the 1st respondent in the suit is 'pleading'. Rejoinder, if received, would also be 'pleading' within the meaning of Order 6 CPC. Since pleadings form part of the record, they need not be marked and can be taken into consideration even without their being marked. Therefore non-marking of the written statement filed by the appellant, the application to receive rejoinder and the rejoinder filed by the 1st respondent in the trial Court cannot be said to have caused any prejudice to the 1st respondent. The other document i.e., copy of the plaint in OS No.4 of 2001, filed by the Principal of the 1st respondent for a declaration that the agreement, (on the basis of which appellant invoked arbitration) and other allied agreements are null and void has no relevance for deciding IA No.1352 of 2000 because the petition for injunction filed by the petitioner cannot be decided on the basis of the pleadings in another suit. So the non-consideration of plaint in OS No.4 of 2001 cannot be said to have caused any prejudice to the 1st respondent. Therefore non-passing of an order either allowing or dismissing CMP No. 21689 of 2001 at the time of disposal of the appeal is not and cannot be a ground for seeking review.

The contention of the learned Counsel for the 1st respondent that question of prima facie case, balance of convenience and irreparable injury need be considered only in applications for injunction filed under Rules 1 and 2 of Order 39 CPC, but not in cases where injunction is sought under Section 151 CPC has no force. Issuance of injunctions is governed by Section 37 of the Specific Relief Act, which lays down that injunctions can be either temporary or perpetual, and temporary injunctions are such as to continue until a specified time or until further orders of the Court and can be granted at any stage of a suit and are regulated by CPC and perpetual injunctions can be granted only by decree upon merits of the suit. IA No.1352 of 2000, out of which the CMA arose, was filed for a temporary injunction, which can be granted either under Order 39 Rules 1 and 2 CPC or Section 151 CPC. An injunction under Section 151 CPC can be granted only in situations not covered either by Rule 1 or Rule 2 of Order 39 CPC, as held by the Supreme Court in Manohar Lal Chopra v. Rai Bhahadur Raja Seth Hiralal, , and Rajni Bai 's case (supra). Therefore it goes without saying that principles for granting temporary injunction either under Rules 1 and 2 of Order 39 CPC or under Section 151 CPC are, and should be, the same. We feel it relevant to mention that in IA No.1352 of 2000, 1st respondent did not seek injunction under Section 151 CPC but filed that petition under Order 39 Rule 1 CPC only even without quoting Section 151 CPC. That fact, by itself, may not be a ground for dismissing the petition for injunction, if 1st respondent is otherwise entitled to the relief of injunction under Section 151 CPC, because not quoting the correct provision of law is not a ground to refuse the relief if the party is entitled to such relief under some other provisions which is not quoted. It is now admitted by the learned Counsel for 1st respondent that Rule 1 of Order 39 CPC does no apply to the facts of this case. So if at all 1st respondent has to seek injunction under Section 151 CPC. If we may say so the contention of the learned Counsel for the 1st respondent that prima facie case need not be considered when injunction is sought under Section 151 CPC stands negatived, in a way, by the fourth contention raised before the Supreme Court by the Counsel for Renu Sagar in Renu Sagar case (supra), relied on by the learned Counsel for 1st respondent by urging that Renu Sagar had made out a prima facie case by raising serious triable issues in the suit and that that fact would enable Renu Sagar to claim injunction restraining arbitration proceedings (see para 11 at page 1165 of Remtsagar case - (supra). The well settled principles for granting a temporary injunction, either under Order 39 Rules 1 and 2 CPC or under Section 151 CPC in favour of a party, are (i) prima facie case, (ii) balance of convenience and (iii) irreparable loss. In the Union of India represented by the G.M. Telephones, Hyderabad v. Jeelal Jaiswal, 1988 (2) LS 46 (SC) (which arose under Order 39, Rule 1 CPC) the Supreme Court held that apart from prima faice case, the partly seeking injunction has to establish balance of convenience and irreparable injury also. That principle would apply when temporary injunction is to be granted under Section 151 CPC also. Since granting or refusing injunction, which is an equitable relief, is in the judicial discretion of the Court, in appropriate cases i.e., cases where the person seeking injunction did not come to Court with clean hands, or is guilty of laches and negligence, even if the three ingredients of prima facie case, balance of convenience and irreparable loss are established by him, the Court can refuse to exercise its judicial discretion in his favour, and can refuse to grant an injunction in his favour.

9. We feel it relevant to extract Section 45 of the Act, which reads as under:

"Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to Section 44, shall, at the request of one of the parties or any person claiming through or under him, refer, the parties to arbitration. unless it finds that the said agreement is null and void, inoperative or incapable of being performed".

It is thus clear that what Section mandates is the Court referring the parties to arbitration, when there is a valid agreement between them, and does not speak anything about the Court granting an injunction restraining the arbitration proceedings already initiated before the filing of the suit. Power to issue injunction should not be confused with the power to grant stay under Section 45 of the Act. If the contention of the learned Counsel for the 1st respondent that when a suit questioning the validity of an arbitration agreement is filed (during the pendency of proceedings for arbitration already commenced by the other party on the basis of such agreement) injunction from proceeding with arbitration should automatically follow were to be accepted, it can lead to anomalous situations. Firstly it means that the Court is not governed by any guidelines for issuing an injunction. Secondly the intendment of the Act would get frustrated. Thirdly a situation may arise when the Court may, on a petition filed by the opposite party under Section 45 of the Act, stay the proceedings in the suit. If injunction were to automatically follow at the behest of the party filing the suit, the result would be neither arbitration proceedings would go on because of the injunction, nor can there be a progress in the suit because of the stay granted under Section 45 of the Act. Such position could never have been contemplated by the Legislature, i.e., Parliament. Therefore the contention of the learned Counsel for 1st respondent that injunction should automatically follow when a suit questioning the validity of the arbitration agreement is filed has no force.

10. In Renu Sagar case (supra) and Sunita Conductors case (supra) the Supreme Court, no doubt, held that the power to stay proceeding in the suit can be exercised cither before or during the pendency of the arbitration proceedings, in a petition filed under Section 3 of 1961 Act, corresponding to Section 45 of the Act. In Renu Sagar case (supra) the Supreme Court was considering the application for injunction filed by Renu Sagar restraining arbitration proceedings and the application filed by GEC for stay of the suit filed by Renu Sagar together, and was considering the issue of stay and injunction together and did not separately consider the issues relating to power of the Court to grant injunction and the power of the Court to grant stay under Section 3 of 1961 Act. IA No.I352 of 2000, out of which the CMA arose, was not filed under Section 45 of the Act. In fact IA No. 1640 of 2000 was filed by the appellant under Section 45 of the Act to stay the suit pending arbitration. By separate orders the learned trial Judge allowed IA No. 1352 of 2000 and dismissed IA No. 1640 of 2000. So appellant filed CMA and CRP questioning the orders of the trial Court in those I.As. Since both the CMA and CRP were heard together, and since we decided to remit IA No.1640 of 2000 to the trial Court, we did not feel it proper or appropriate to deal with the question relating to the enforceability or otherwise of the agreement between the parties for disposal of the CMA., because any finding given by us on that point might cause prejudice to the affected party during the hearing of IA No. 1640 of 2000 before the learned trial Judge, and so we refrained from deciding the question of validity and enforceability of the agreement and confined ourselves to the three ingredients required for granting temporary injunction.

11. In view of the above, the point for consideration in the appeal was whether 1st respondent is entitled to the temporary injunction sought for which purpose it has to establish prima facie case, balance of convenience and irreparable loss. We feel it relevant to extract the observations in para 55 of Renu Sagar (supra).

"As explained earlier the scheme that emerges on a combined reading of Sections 3 and 7 of the Foreign Awards Act (1961 Act) clearly contemplates that questions of existence.

validity or effect (scope) of the arbitration agreement itself, in cases where such agreement is wide enough to include within its ambit such questions, may be decided by the arbitration initially but their determination is subject to the decision of the Court and such decision of the Court can be had either before the arbitration proceedings commence or during their pendency, if the matter is decided in a Section 3 petition or can be had under Section 7 after the award is made and filed in the Court and is sought to be enforced by a party thereto. In the face of such scheme envisaged by the Foreign Awards Act which governs this case it will be difficult to accept the contention that the arbitrators will have no jurisdiction to decide questions regarding the existence, validity or effect (scope) of the arbitration agreement. In fact the scheme makes _for avoidance of dilatory tactics on the part of any party to such agreement by merely raising a plea of lack of arbitrator's competence - and a frivolous plea at that -and enable the arbitrator to determine the plea one way or the other and if negatived to proceed to make his award with the further safeguard that the Court would be in a position to entertain and decide the same plea finally when the award is sought to be enforced. All that condition (iii) of Section 3 requires is that the legal proceedings must be in respect of a matter "agreed to be referred to the arbitration" and there is no warrant to add further words namely, "agree to by referred to the arbitration for final determination". Obviously if the occasion to decide the question of arbitrator's jurisdiction arises at an earlier stage namely in a Section 3 petition the Court has to decide it before granting stay of the legal proceedings and such decision of the Court on that question will be conclusive and binding on the arbitrator and the question before him will then become academic. It is thus clear that under the scheme questions of existence, validity or effect (scope) of the arbitration agreement itself, in cases where the arbitration clause embraces within its scope such question, (unless decided by the Court in a Section 3 petition) could be initially determined by the arbitrators, which would be subject to the final decision of the Court................In other words, there is nothing in the general law of arbitration either English or Indian which prevents the arbitrators or an umpire from deciding questions of their own jurisdiction provisionally or tentatively and to proceed to make their awards on that, basis, though it is clear that their provisional or tentative decision on questions of their own jurisdiction would be subject to the final determination by the Court and if the Court takes a contrary view their award will not be given effect to and in our view this is exactly the scheme of the Foreign Awards Act." (Underliningmine) Keeping the above observations in view, and also in view of the fact that the CMA arose out of an order granting injunction, by the trial Court which earlier by an order dated 31-10-2000 in IA No. 1640 of 2000 directed the parties to approach the agreed forum, and raise all the pleas before it and observed that the Tribunal itself can decided the plea relating to its jurisdiction, and in view of the decision of the Supreme Court in Sundaram Finance Limited v. NEPC India Limited, , we observed, in the common order dated 12-12-2001, that interference by civil Court (by granting injunction) should be minimal. In the facts and circumstances of the case it was held that the 1st respondent did not establish a prima facie case that balance of convenience is not in its favour and that it would not suffer any loss its much less irreparable loss, if injunction is not granted in its favour.

12. For the above reasons the decision relied on by the learned Counsel for the 1st respondent have no application for deciding this review petition and we do not find any error apparent on the face of the record or misconstruction of ruling of any Court.

13. So we do not find any grounds for reviewing the common order dated 12-12-2000. The point is answered accordingly.

14. In the result, the petition is dismissed with costs. Advocate's fee is fixed at Rs. 1,000/-. The typographical and other accidental errors in the common order dated 12-12-2001 pointed out in para 3 above be carried out.