Civil Appeal Nos
2012 2013 of 1974
From the Judgement and Order dated 221973 of the Calcutta High Court in Appeal No 211 of 1966
B Sen Mrs Geetanjali Mohan and Bishan Lal for the Appellant
Dr Shanker Ghosh Darshan Singh Praveen Kumar IB Gaur and Ms Shaifali Khanna NP for the Respondents
The Judgement of the Court was delivered by KASLIWAL J
These appeals by special leave are directed against the order of the Calcutta High Court dated February 2 1973
Brief facts necessary for the determination of these appeals are that Shri Gouri Sankar Sarda hereinafter referred to as Respondent No 1 filed a Suit No 1783 of 1965 in the Calcutta High Court against R McDill and Company Pvt
Ltd in short Appellant No 1 Mirilal Dharamchand Pvt
 Ltd in short Appellant No2  and Shri Misrilal Jain for the recovery of some amounts as well as for some other reliefs
On or about 15th December 1965 both the appellant Nos 1 and 2 who were also defendants in the suit submitted a joint application in the High Court for staying proceedings of the aforesaid suit under Section 34 of the hereinafter referred to as the Act 
In view of some formal defect in the application the High Court by order dated 25th February 1966 gave permission to withdraw the said application with liberty to file a fresh application
As the entire case hinges on the above order dated 25th Feb 1966 relevant portion of the said order is reproduced as under 812 Application withdrawn with liberty to make a fresh application
Cost to be paid by the applicant
 Though the above order does not make a mention of the formal defect but according to the appellants the permission to withdraw was sought as no copy of the plaint was annexed with such application
Thereafter on March 21 1966 the appellant Nos 1 and 2 instead of making a joint application submitted two separate applications for staying the suit against the respective appellants and in the alternative for stay of the suit as a whole
These applications were resisted by the plaintiff respondent No 1 on the ground that separate applications were not in terms of the order dated 2521966 and hence no stay should be granted
Learned Single judge upheld the objection raised by the plaintiff and refused to stay the suit
On appeal the Division bench of the Calcutta High Court by order dated 2nd February 1973 dismissed the appeal
The Division Bench took the view that liberty was granted to make a fresh application and as such under the provision of Order XXIII of the Code of Civil Procedure the appellants had no right to move two separate applications for staying the suit
Aggrieved against the aforesaid Order of the High Court dated 2nd February 1973 the appellants have filed these appeals by the grant of special leave
order XXIII CPC as it existed at the relevant time is reproduced as under ORDER XIII WITHDRAWAL AND ADJUSTMENT OF SUITS 1
Withdrawal of suit or abandonment of part of claim 1 At any time after the institution of a suit the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim
2 Where the Court is satisfied a That a suit must fail by reason for some formal defect or b That there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of claim
813 It may on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of claim
3 Where the plaintiff withdraws from a suit or abandon part of a claim without the permission referred to in sub rule he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim
4 Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw the consent of the others
It was contended on behalf of the appellants that the provisions or Order XXIII were not applicable in the matter of applications filed under Section 34 of the 
It was contended that the provisions of Order XXIII could only apply to the proceedings of a suit and not in respect of any applications filed under the Act
It was submitted that the High Court committed an error in taking a highly technical view of the matter that initially a joint application was submitted for stating the suit and liberty was given to withdraw the same and to make a fresh application and as such the appellants were not entitled to submit two separate applications though for the same purpose
It was contended in this regard that there were two separate agreements between the plaintiffs and appellants Nos 1 or 2 containing an arbitration clause and as such the appellants were given a legal advice to submit two separate applications for staying the suit and the High Court should not have dismissed the applications on the ground that liberty to file fresh application was given in respect of one application only
Learned counsel for the appellants in support of this contention placed reliance on Nawab Usmanli Khan vs Sagarmal On the other hand it was argued on behalf of the respondent No 1 that provisions or Order XXIII CPC were applicable in respect of an application under the Act
It was contended that basically the proceeding had arisen on account of a suit filed by the plaintiff respondent and in that suit an application was submitted for staying the suit and referring the matter to Arbitrator under Section 34 of the Act
The Order as such passed by the High Court on 25th February 1966 would be governed by the provisions of order XXIII of the Code of Civil 814 Procedure and fresh application could only lie in accordance with the terms and conditions imposed at the time of permitting the withdrawal of the first application
It was contended that it was an admitted position that a joint application was filed for staying the suit and the permission was granted to withdraw the same with liberty to make a fresh application and the defendants appellants had no right to submit two separate applications in violation of the order of the Court dated 25th February 1966
Reliance in support of the above contention was placed on Munshi Ram vs Banwari Lal 1962 Supp
2 SCR 477 and Hakam Singh vs Ms Gammon India Ltd  We would first deal with the question whether the provisions of Order XXIII CPC apply or not to an application for stay of suit filed under Section 34 of the Act
Section 41 of the Act reads as under 41 Procedure and powers of Court
Subject to the provisions of this Act and of rules made thereunder a The provisions of the Code of Civil Procedure 1908 shall apply to all proceedings before the Court and to all appeals under this Act and b The Court shall have for the purpose of and in relation to arbitration proceeding before the Court
Provided that nothing in clause b shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters
According to the above provision the provisions of the Code of Civil Procedure 1908 shall apply to all proceedings before the Court subject course to the provisions of The and of any rules made thereunder
it has been laid down in various decisions from time to time that the following provisions of the Code of Civil Procedure shall apply to proceedings under the Act
In the Law of Arbitration  by RS Bachawat 2nd 1987 Ed 585 under the Heading Applicability of Code of Civil Procedure to court proceeding  it has been mentioned as under 815 Subject to the provisions of the Act and the Rules made thereunder the provisions of the code of civil procedure aplply to all proceddings before the Court and to all appeals under the Act Section 41a
The following provisions of the Code of Civil Procedure have been held to apply to certain proceedings under the Act 1 Section 20 Hakam Singh vs Gammon India ltd  2 Section 963 Union of India vs Mohinder Singh  Co AIR 1971 JK 10
3 Section 24 Union of India vs Rup Kishore AIR 1957 All 504
4 Section 114 read with Order 47 Executive Engineer vs Thingom Iboyaima Singh AIR 1970 Manipur 76
5 Order 1 Rule 8 Abdul Gani vs Reception Committee AIR 1936 Bom
250 ILR 6 Order 3 Rule 5 Ram Bharosey vs Peary Lal AIR 1957 All 265
7 Order 5 Shrinath Bros vs Century Spinning  Wvg
Co AIr 8 Order 6 Rule 17 Indian Minerals Co vs Northern India Uime Marketing Association 9 Order 9 Rule 13 Ganeshmal vs Keshoram Cotton Mills AIR 1952 Cal 10 ILR 10 Order 23 Rule 3 Munshi Ram vs Banwari Lal  11 Order 30 Rule 3 Governor General in Council vs Associated Live Stock Farm India Ltd AIR 1948 Cal
230 52 CWN 288
12 Order 30 Rule 4 Soorajmull Nagarmull vs Sagar Mal AIR 1978 Cal
A proceeding under Section 14 Section 17 under the Act is not a suit and the provisions of Section 861 CPC read with Section 87 CPC does not apply to such a proceeding Usman Ali Khan vs Sagar Mal  Nor does the provision of Section 80 CPC apply to a proceeding under Section 20 Ramchand vs Governor General in Council AIR 1947 sind 147
The following provisions of the Code Civil Procedure apply to appeals under the Act 816 1 Section 963 Union of India vs Mohinder Singh  Co AIR 1971 JK 10 2 Order 41 Rule 5 Scottish Union of National Insurance Co vs Saraswati Sajnani AIR 1960 Cal
2263 CWN 800
Apart from the above cases Section 41 of the Act itself provides that the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court
We do not find any provision in the Act so as to take away the provisions or Order XXIII CPC from being applied to applications filed under Section 34 of the Act in a suit
That apart the case before us has started on a plaint filed by the plaintiff and in such a suit if any application is filed under the Act the same ought to be governed by the provisions of the Code of Civil Procedure
In Munshi Ram vs Banwari Lal supra the facts were that the Arbitrator gave an award
The award was filed in the court by the Arbitrator
The appellants made application for setting aside the award and the respondents filed their replies to the application
Thereafter the parties came to terms and asked for a decree to be passed in accordance therewith
The court passed a decree on the award modified by the compromise
In execution the appellant contended that the decree was nullity as the Court had no jurisdiction to modify the award by compromise
It was argued that after a dispute is referred to arbitration and an award has been obtained and filed in Court it is not open to the Court to record the compromise under Order XXIII Rule 3 of the Code of Civil Procedure because an award can be set aside or modified as laid down in the  there is no provision in the for recording the compromise the above contention was not accepted and it was held as under When an award is given the parties cannot under the Act challenge it except as laid down there
The powers of the Court are indicated by the Act
They are limited to accepting the award if there be no objection and passing a decree in accordance therewith or superseding the reference or revoking or modifying the award or remitting it for further consideration as laid down in the Act
But the Act does not disable the parties from terminating their dispute in a different way and if they do it could not be intended by law that a dispute which had been successfully terminated should again become the subject of litigation
If the parties are dissatisfied with the award and want to substitute it by a compromise involving matters alien to the original dispute 817 which are inseparable the Court may supersede the submission and leave the parties to work out their agreement in accordance with the law outside the 
In Nawab Usmanali Khan vs Sagarmal supra on which reliance has been placed by learned counsel for the appellant it was held that a proceeding under Section 14 read with Section 17 of the Act for the passing of a Judgement and decree on an award does not commence with a plaint or a petition in the nature of a plaint and cannot be regarded as a suit and the parties to whom the notice of the filing of the award is given under Section 142 cannot be regarded as suit in any Court otherwise competent to try the suit within the meaning of Section 861 read with section 87B Civil Procedure Code
In the above case the appellant was the Ruler or the former Indian State of Jaora
The had money dealing with the respondent
The respondent after obtaining a decree in terms of the award started execution proceedings against the appellant
The Central Government gave a certificate under Section 863 read with Section 87B of the Code Civil Procedure 1908 consenting to the execution of the decree against the properties of the appellant
The Executing Court passed the prohibitory order under Order XXI Rule 46 of the Code of Civil Procedure in respect of sums payable to the appellant on account of the privy purse
On an objection raised by the appellant by order dated March 15 1958 the Court recalled the decree and cancelled the certificate as prayed for on the ground that the amount receivable by the appellant on account of his privy purse was not attachable
The respondent preferred appeal before the High Court
The High Court allowed the Appeal No 33 of 1958
Usmanali Khan appellant filed an appeal before this Court
This Court held as under Section 861 read with section 87B confers upon the Rulers of former Indian State substantive rights of immunity from suits
Section 141 makes applicable to other proceedings only those provisions of the Code which deal with procedure and not those which deal with substantive rights
Nor does section 41a of the Indian carry the matter any further
By that section the provisions of the Code of Civil Procedure 1908 are made applicable to all proceedings before the Court under the Act
Now by its own language section 861 applies to suits only and section 141 Code of Civil procedure does not attract the provisions of section 861 to proceedings other than suits
Accordingly by the conjoint application of section 41a of the Indian Arbitration 818 Act and sections 861 and 141 of the Code of Civil Procedure the provisions of section 8691 are not attracted to a proceeding under s14 of the Indian 
It follows that the Court was competent to entertain the proceedings under section 14 of the Indian and to pass a decree against the appellant in those proceedings though no consent to the institution of those proceedings had been given by the Central Government
The following observations in Hansraj Gupta vs Official Liquidator Dehra Dun Mussorrie Electric Tramway Co 1932 LR 60 IA 13 19 made by Lord Russell of Killowen were quoted
The word suit  ordinarily means and apart from some context must be taken to mean a civil proceeding instituted by the presentation of a plaint
The following observations made by Shah J in Bhagwat Singh vs State of Rajasthan  were also quoted with approval The appellant is recognised under article 36622 of the Constitution as a Rule of an Indian State but section 86 in terms protects a Ruler from being sued  and not against the institution of any other proceeding which is not in the nature of a suit
A proceeding which does not commence with a plaint or petition in the nature of plaint or where the claim is not in respect of dispute ordinarily triable in a Civil Court would prima facie not be regarded as falling within section 86 Code of Civil Procedure
The above observation made by Lord Russell of Killowen and Shah J go to show that for a suit the civil proceedings is instituted by the presentation of a plaint
In the aforesaid background it was held that a proceeding which does not commence with a plaint or petition in the nature of plaint or where the claim is not in respect of dispute ordinarily triable in a civil court would prima facie not be regarded as falling with Section 86 Code of Civil procedure
In the case before us as already mentioned above a suit by presenting a plaint was instituted by the respondent No 1 and thereafter it was sought to be stayed by submitting application under section 34 of the Act
Thus we are clearly of the view that the above case of Usmanali Khan vs Sagarmal supra is clearly distinguishable and does not help the appellants in the case before us
It may be noted that Bachawat J who delivered the Judgment in Usmanali Khan vs Sagarmal supra has himself in his 819 book on the law of Arbitration  under the heading Applicability of Code of Civil Procedure to Court Proceeding  has mentioned a number of decisions wherein the provisions of Code of Civil Procedure have been held to apply to proceedings under the Act
We have already extracted the above passage from the book of Bachawat j
In Hakam Singh v Ms Gammon India Ltd supra it was held that the Code of Civil Procedure in its entirety applies to proceedings under the by Virtue of Section 41 of the later Act
The jurisdiction of the Courts under the to entertain a proceeding for filing an award is accordingly governed by the provisions of the Code of Civil Procedure read with Explanation II thereto the respondent company which had its principal place of business at Bombay was liable to be sued at Bombay
Thus in the above case dispute arose between the parties and the appellant submitted a petition to the Court of the Subordinate Judge at Varanasi for an order under Section 20 of the Indian  10 of 1940 that the agreement be filed and an order of reference be made to an Arbitrator or Arbitrators appointed by the Court to settle the dispute between the parties in respect of the construction works done by him
In order to determine the place of suing it was held that Section 20 of the Code of Civil Procedure would govern the case
Thus we do not find any force in the submission made by learned counsel for the appellants before us that the provisions or Order XXIII of the Code of Civil Procedure will not apply to the Order passed by the High Court on 25th February 1966
We would now consider the scope and effect of the order dated 25th February 1966 considering that the said order would be governed by the provisions of Order XXIII of the Code of Civil Procedure
Admittedly appellant Nos 1 and 2 were defendants in the suit filed by respondent No 1
A joint application was submitted on their behalf for staying the proceedings of the suit under Section 34 of the Act Though the order dated 25th February 1966 does not make a mention of the formal defect on account of which the said application was withdrawn but the appellants have categorically stated that the same was withdrawn on account of the fact that copy of the plaint was not annexed with such application and in the absence of any counter made by the respondent we take that the reason for withdrawing the application was that copy of the plaint was not annexed with such application
The said application was allowed to be withdrawn with liberty to 820 make a fresh application
To our mind the term a fresh application  used in singular had no more significance than the fact that as both the appellants had submitted one joint application as such the liberty was given to make a fresh application
The main purpose of moving the application by the appellant was to stay the proceedings of the suit under Section 34 of the Act the intention and the purpose of moving two separate applications is also to stay the proceedings of the suit under Section 34 of the Act
The explanation given by the appellants for moving two separate applications is that they were given a legal advice to move two seperate applications as there were two different agreements between the appellant Nos 1 and 2 and the respondent No 1
There was no element of mala fide in doing so and the two applications were also submitted on March 21 1966 ie within 30 days of the order dated 25266
Learned counsel for the respondent No 1 submitted that there was no merit in the applications submitted by the appellants under Section 34 of the Act and the proceedings of the suit have already remained stayed for nearly 15 years in this Court and now there is no justification for further staying the suit
So far as the pendency of this appeal in this Court is concerned no party is at fault and it would have been proper if the respondent had been advised not to take such objection of non maintainability of two applications before the High Court and would have contested the applications on merits
We are not deciding the question of maintainability of the applications under Section 34 of the Act on merits and we make it clear that respondent No 1 would be free to take all objections as he likes against the grant of such application and the same would be decided by the High Court on merits in accordance with law
We are however clearly of the view that the High Court was not correct in dismissing the applications on the ground that two applications were not maintainable as the same were not covered within the order passed by the High Court dated 25th February 1966
In view of the fact that it is an old matter we request the High Court to dispose of the applications filed by the appellants Nos 1 and 2 under Section 34 of the Act
At the earliest
In the result these appeals are allowed the order of the High Court dated 2nd February 1973 is set aside and the case would now be decided by the High court in the manner indicated above
The parties are left to bear their own costs
RP Appeals Allowed


Summary:
The 4 appellants along with 11 others were tried for murder and for causing injuries
The learned sessions judge while acquitting all others of all the charges convicted A 1 A 2 A 5 and A 1 on different counts
The sentences awarded to them under various charges including the sentence of life imprisonment under section 302 IPC were ordered to run concurrently
The convicted accused preferred appeal to the High Court against their conviction and sentences and the State appealed against the acquittal of the rest of the accused
The High Court altered the convection of A 1 and A 2 under section 302 IPC and 302 read with section 34 respectively into one under section 302 read with section 149 IPC and confirmed the sentence for imprisonment for life
Except for this modification the convictions and sentences in respect of all the four accused were confirmed
The state appeal against acquittal of all other accused was dismissed
In this appeal preferred by the four convicted accused namely A 1 A 2 A 5 and A 11 their counsel confined his arguments against their convictions and sentences under section 302 read with section 149 IPC only as the appellants had either already served or had almost finished serving to their sentences awarded to them under other charges
876 The argument was that in the absence of a specific finding to the effect that apart from the 4 appellants the prosecution has proved the involvement of other persons section 149 IPC cannot be invoked for convicting them under section 302 IPC Confirming the convictions and sentences of the appellants under other charges but allowing their appeal against their conviction and sentence under section 302 IPC read with section 149 IPC this Court HELD Since the accused who are convicted were only four in number and the prosecution has not proved the involvement of other persons and the court below have acquitted the other accused of all the offences section 149 cannot be invoked for convicting the four appellants herein
The learned judges were not correct in stating that A1 A2 A5 and A11 can be held to be the members of an unlawful assembly along with some other unidentified persons on the facts and circumstances of this case
The charge was not that accused 125 and 11 and others or and other unidentified persons formed into an unlawful assembly but it is that you accused 1 to 15 formed into an unlawful assembly
It is not the prosecution case that apart from the said 15 persons there were other persons who were involved in the crime
When the 11 other accused were acquitted it means that their involvement in the offence had not been proved
It would not also be permissible to assume or conclude that others named or unnamed acted conjointly with the charged accused in the case unless the charge itself specifically said so and there was evidence to conclude that some others also were involved in the commission of the offence conjointly with the charged accused in furtherance of a common object
882A D Amar Singh vs State of Punjab 1987 1SCC 679 and Maina Singh vs State of Punjab 19763SCR 651 followed