Special Leave Petition Civil No 4783 of 1988
536 From the Judgment and order dated 23288 of the High Court of Gujarat in Civil Rev Appln
No 1737 of 1982
SK Dholakia DL Kothari RC Bhatia and PC Kapur for the Petitioners
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
This is an application for leave to appeal under Article 136 of the Constitution of India from the judgment and order of the High Court of Gujarat dated 23rd February 1988
By the impugned judgment the High Court has dismissed the civil revision application which challenged the award made in this case
The petitioner is the father of the respondent
Both of them are established Vaidyas in Rajkot
They come from a well to do family
The petitioner is advanced in age and both the father and the son have been fighting between themselves since more than a decade
The High Court found that the petitioner and the respondent had referred their disputes to one Kantibhai Vaidya Shri Kantilal Dayaram Jani who had intervened between them with the good intention to bring their disputes to an end
He made an award
The award was produced
It appears that the award was endorsed and signed by both the parties
In the award it was stated by the arbitrator that he had called both the father and the son at his residence on 18th January 1977
He had discussed the matter with both of them and had warned them that both of them would ruin themselves in the property disputes if they did not solve the matter amicably
In the award it was stated that the entire responsibility of solving the dispute was entrusted to him and the petitioner and the respondent had agreed to such entrustment
Accordingly he made the award on 18th January 1977
Below the award both the parties and the arbitrator had signed
The endorsement reads when translated in English as found by the High Court that the award is agreed to and binding upon both the parties and that the entire responsibility of the arbitrator will lie on Shri Kantibhai Vaidya and that he has taken the responsibility
Thereafter followed a spell of litigation
The respondent applied on 20th June 1977 for filing the award and sought the judgment in terms of the award under section 17 of the hereinafter called the Act 
A notice consequent upon the filing of the award was issued to the petitioner
The application was converted into Special Civil Suit No 84 of 1977
It was stated in the application to file the award that the 537 petitioner had torn off the award and therefore the respondent was compelled to rely upon a photo copy of the original award which was produced with the application
The petitioner filed his objections to the application but did not file any application within the prescribed limitation of 30 days
The learned trial Judge rejected the objections filed beyond the period of limitation and for the reasons that 1 the notice was already given to the party concerned about the filing of the award 2 the time for making an application to set aside the award had expired and no such application was made 3 the award was not set aside under section 30 and 4 that the award was not remitted under section 165 of the Act
The learned trial Judge made a decree in terms of the award
The petitioner preferred a Civil First Appeal against the judgment and decree passed in Special Civil Suit No 84 of 1977 and had also preferred Civil Revision Application No 655 of 1978
Both these legal proceedings were however withdrawn by the petitioner and thus the judgment of the trial court in Special Civil Suit No 84 of 1977 became final
The High Court had recorded that the First Appeal and Civil Revision Application were withdrawn in pursuance of an agreement reached between the parties on or about 14th August 1978
A copy of the said agreement was also produced before the Court as Exhibit 40
It was signed by both the parties as well as their respective advocates
The agreement was in the form of a letter addressed to the arbitrator wherein it was stated that both of them had appointed him as an arbitrator to resolve the disputes between them and that he had given an award dated 20th January 1977 in respect of which award there had been continued objections but now they have agreed that both of them should abide by the award dated 20th January 1977 and that its interpretation should be left to the arbitrator himself
It was also categorically mentioned therein that its interpretation by the arbitrator would be binding on both the parties
It was clear therefore that both of them had re affirmed the acceptance of the award
This letter of 14th August 1978 was replied in the form of a letter dated 4th September 1978 addressed to the petitioner by the arbitrator that is Exhibit 137
The petitioner thereafter filed a civil suit for setting aside the decree passed in Special Civil Suit No 84 of 1977 and had also submitted an application to obtain interim orders
That application was decided against him against which he preferred an appealrevision but later on he withdrawn the said appealrevision
During the course of the execution proceedings the petitioner 538 preferred a civil revision application against the judgment and order passed by the Civil Judge raising practically all the disputes which had been raised by the petitioner in this civil revision application
The same was rejected summarily
The main objection to the award is that there was no written agreement signed by both the parties to refer the disputes to arbitration
It is clear from the narration of facts that the parties had agreed to refer the dispute to the arbitrator
The award was signed by both the parties about which there is no factual dispute reiterated the fact that the parties had agreed to refer the dispute to the arbitration of the said arbitrator and that he made an award
All these are in writing and signed by all the parties
This in our opinion in the light of the facts and circumstances of the case can certainly be construed to be a proper arbitration agreement in terms of section 2a of the Act
In this connection reference may be made to the observations of this Court in Prasun Roy vs The Calcutta Metropolitan Development Authority and another AIR 1988 SC 205 where all the relevant authorities on this point have been discussed
See also in this connection the decision of the Judicial Committee in Chowdhri Murtaza Hossein vs Mst
Bibi Bechunnissa 1876 3 Indian Appeal 209 at 220
The observations in the said decision were made in different context
But in the present context it is clear that the conduct of the parties that there was an arbitration agreement and by signing the award it could be said that the parties had agreed to refer the disputes in writing to the arbitration of the named arbitrator
This agreement was done twice firstly by signing an endorsement below the award and secondly by entering into an agreement in the form of a letter dated 14th August 1978 Exhibit 40
In that view of the matter we are in agreement with the High Court that on this aspect the petitioner is not entitled to challenge the award
The High Court has further held that the revision before the High Court suffered from res judicata
The High Court in our opinion was right in doing so
It was contended that the previous proceedings were without jurisdiction
We are unable to accept this contention
The Civil Court had jurisdiction to take cognizance of the award under sections 14 and 17 of the Act
This question had come up for consideration before the Judicial Committee in Rajah Amir Hassan Khan vs Sheo Baksh Singh 11 IA 237
The Judicial Committee held that they had perfect jurisdiction to decide the question which was before them namely whether the suit was barred as res judicata and they did decide it
It was not relevant according to the Judicial Committee 539 whether they decided it rightly or wrongly they had jurisdiction to decide the case and even if they decided wrongly they did not exercise their jurisdiction illegally or with material irregularity
Section 9 of the Civil Procedure Code provides that the Courts shall subject to the provisions herein contained have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred
In this case there was no such express or implied prohibition nor any inability of the Judge concerned
In this connection it may be useful to refer to the observations of this Court in Seth Hira lal Patni vs Shri Kali Nath   where this Court observed that the validity of a decree could be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizing of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree was passed or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it
In this connection reference may be made to the observations of this Court in Vasudev Dhanjibhai Modi vs Rajabhai Abdul Rehman and others 1971 1 SCR 66
Having regard to all these factors we are of the view that the High Court was right in dismissing the application in the manner it did
In Ms Guru Nanak Fundation vs Ms Rattan Singh and Sons   where this Court observed that interminable time consuming complex and expensive court procedures impelled jurists to search for an alternative forum less formal more effective and speedy for resolution of disputes avoiding procedural claptrap and this led them to the 
However the way in which the proceedings under the Act are conducted and without an exception challenged in Courts has made lawyers laugh and legal philosophers weep
This Court further observed that experience shows and law reports hear ample testimony that the proceedings under the Act have become highly technical accompanied by unending prolixity at every stage providing a legal trap to the unwary
With respect we could not agree more in the facts and the circumstances of this case
In the view however we have taken of the matter indicated above we decline to interfere with the order of the High Court
The special leave petition fails and is accordingly dismissed
NPV Petition dismissed


Summary:
This appeal was directed against the judgment of the Madhya Pradesh High Court setting aside the order of the trial court acquitting the appellants and convicting them under section 302 read with section 34 of the Indian Penal Code and sentencing each of them to undergo imprisonment for life
The prosecution case was that on 411982 Ram Pratap Singh deceased had gone to Collectorate Panna where he noticed that Om Prakash and Raghvendra who were inimical to him were shadowing him in the Collectorate
He requested Rajendra Singh PW 14 Chhotey Bhaiya
PW 5 and Mohd Tohid PW 16 to accompany him on his return journey as he sensed danger to his life and sent Tohid to purchase bus tickets with a direction that he should meet him at the octroi toll barrier on the Ajaigarh Road from where he proposed to take the bus
Thereafter he alongwith Rajendra Singh PW 14 and Chhotey Bhaiya
PW 15 proceeded to Chungi Chowki octroi Post on the Ajaigarh Road
While they were waiting for Tohid Ram Pratap Singh went for drinking water from a well nearby
When he was just in the process of drinking water gun shots were fired towards him causing injuries to him
Upon this he ran towards his associates and fell down near Rajendra Singh and Chhotey Bhaiya
The prosecution further alleged that on hearing the gun shots Rajendra Singh and Chhotey Bhaiya saw the appellant Brajendra armed with a315 rifle and Awadesh armed with a 12 bore gun running away
Rajendra Singh and Chhotey Bhaiya armed with a rifle and a gun respectively fired shots towards the assailants and the assailants also fired towards them
On hearing gun fire VP Pathak Sub lnspector of Police PW 20 rushed to the spot with Constable Lakhan Singh PW 12
Rajendra Singh PW 14 gave him information about the incident which was recorded by him Dehati Nalishi exhibit P 12 at 310 PM VP Pathak 514 sent the Dehati Nalishi to Kotwali Panna through Lakhan Singh Constable for recording the first information report
Pathak sub inspector then prepared the panchnama and spot map Ex P 17 on the same day
A charge sheet was submitted against five accused persons including the two appellants Brajendra and Awadesh for trial for offences under section 312 read with section 34 and section 307 read with section 34 of the Indian Penal Code
The Trial Court disbelieved the testimony of the two eye witnesses Rajendra Singh PW 14 and Chhotey Bhaiya PW IS and referring to a number of circumstances which made the prosecution story doubtful acquitted the accused
On appeal by the State Government the High Court disagreed with the reasons recorded by the Trial Court and placing reliance on the testimony of the eye witnesses ie Rajendra Singh and Chhotey Bhaiya allowed the State appeal set aside the acquittal of the appellants and convicted them under section 302 read with section 34 of the Indian Penal Code and awarded a sentence of life imprisonment to each of them
The appellants appealed to this court against the decision of the High Court
Allowing the appeal the Court  HELD The High Court on an appraisal of the evidence came to the conclusion that the prosecution had proved its case beyond all reasonable doubt
It referred to a number of decisions of this Court in considering the scope of its jurisdiction in interfering with an order of acquittal passed by the trial court but while applying the principles it failed to appreciate that the view taken by the trial court was reasonable and plausible
While considering an appeal against acquittal the High Court must in appreciating the evidence keep in mind that if on appraisal of evidence and considering relevant attending circumstances it is found that two views are possible one held by the trial court for acquitting the accused and the other for convicting the accused in such a situation the rule of prudence should guide the High Court not to disturb the order of acquittal made by the trial court
Unless the conclusions of the trial court drawn on the evidence on record are found to be unreasonable perverse of unsustainable the High Court should not interfere with the order of acquittal
The High Court in this case made an attempt to explain away the infirmities in the testimony of the eye witnesses in setting aside the order of acquittal
The High Court disregarded the rule of judicial prudence in converting the order of acquittal to conviction and committed error in interfering with the order of acquittal
519G H 520A B 515 The first information report exhibit P 12 showed that the occurrence took place at 1415 hours while the report was lodged at 1510 hours
The evidence on record and the attending circumstances indicated that the first information report was not lodged at 1510 hours instead it was lodged at about 1700 hours
The testimony of Rajendra Singh PW 14 regarding the lodging of the first information report was contradictory
The statement of VP Pathak PW 20 the investigating officer clearly indicated that the first information report was written after 1700 hours and it was not recorded at the time it purported to have been lodged
There were material contradictions in the testimony of Rajendra Singh PW 14 and the investigating officer
Since the Sub Inspector the District Magistrate and the Superintendent of Police had reached the place of occurrence within a few minutes of the incident the delay in lodging the first information report was highly suspicious
Why this delay when all officers and the eye witnesses were present at the spot and the police station was at a distance of two furlongs The obvious reason appeared to be that the names of the assailants were not known as most likely the eye witnesses had not seen the assailants and they were not present at the scene of the occurrence
In all likelihood they arrived at the scene after the incident and since the names of the assailants were not known the Fl
R was lodged with delay after deliberation
This view finds support from the testimony of Tohid PW 16 and other circumstances
There were material contradictions in the statements of the three witnesses Rajendra Singh PW 14 Chhotey Bhaiya PW 15 and Tohid PW 16 and in view of the same and further in view of the discrepancy regarding the delay in the lodging of the first information report it was apparent that till the first information report was lodged nobody knew who the assailants were and that was why Rajendra Singh could not disclose the names of the assailants to Tohid on his arrival at the scene of occurrence after he had been sent to bring the bus tickets
520H 521A C E 522H 523A The prosecution relied upon the recovery of the two empty cartridges to connect the appellants with the commission of the crime
The recovery of these empty cartridges was not made on 411982 instead these cartridges were recovered on 5182 although the spot map of the scene of occurrence was prepared on 4182 itself
It was interesting to note that the spot where these cartridges were recovered was shown in the spot map prepared on 4182 although the recovery was made on S182
The witnesses in whose presence the recovery of the cartridges was made had not supported the prosecution
Moreover it was the admitted case of the prosecution that there was an exchange of fire from both sides by the assailants and by Rajendra Singh and 516 Chhotey Bhaiya but no other cartridges were recovered by the Investigating officer
The investigating officer did not take into possession the licensed rifle and gun of Raghavendra Singh and Awadesh nor was any effort made to secure the evidence of the ballistic expert to prove that the empty cartridges had been fired from the respective weapons
These circumstances indicated that the empty cartridges were not recovered instead the investigating officer had planted those cartridges to support the prosecution case
523B E On the evidence on record it was apparent that the Chungi Chowki octroi toll barrier was manned by the employees of the Municipal Board who were present at the spot and in addition to them there was Home Guard office adjacent to the toll barrier and there were residential houses near the barrier and the place of occurrence was a busy public place
It came into evidence that large number of persons had gathered at the scene of occurrence but no employee of the toll barrier or Home Guard once or local resident came forward to support the prosecution case
The District Magistrate the superintendent of Police and other officers had also reached the spot within minutes of the incident but none of them entered the witness box to support the prosecution case
The prosecution produced Udai Singh PW 17 and Kali Charan PW 19 who were residents of Uttar Pradesh and close relatives of the deceased
Their presence at the scene of occurrence as highly doubtful and their testimony was not free from doubt as they were highly interested persons
The trial court rightly discarded their testimony as their statements had been recorded by the police after two months of the occurrence
without there being an explanation for the delay
523F H 524A B The injuries mentioned in the testimony of Dr Jain who had carried out the post mortem examination of the dead body of Ram Pratap Singh could not be caused in the manner and from the place where the assailants were alleged to be present at the time of firing and the same were inconsistent with the testimony of the eye witnesses and the site plan
The trial court had discussed this question at length and the Court agreed with the findings of the trial Court
In the opinion of the doctor the person who caused injuries to the deceased was at a higher level than the deceased this was wholly inconsistent with the testimony of the eye witnesses
Though medical expert s opinion is not always final and binding in this case it corroborated the other circumstances which indicated that the eye witnesses had not seen the actual occurrence
524B 525E H 517 The prosecution had failed to prove its case beyond all reasonable doubt and the High Court committed error in interfering with the trial court s order of acquittal
Order of the High Court and the appellant s conviction were set aside and order of the trial court was restored and the appellants were acquitted
526A B GB Patel  Anr
vs State of Maharashtra  and Sheo Swarup vs King
Emperor AlR