IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 CRP.No. 356 of 2008() --------------------- AGAINST THE ORDER DATED 12/03/2008 IN IA.39992/2006 IN OS.333/2005 of PRINCIPAL SUB COURT, PALAKKAD .................... REVN. PETITIONER/PETITIONER/PLAINTIFF: ------------------------------------------ P.N. RAVINDRANATH, AGED 58 YEARS, SON OF NALINAKSHAN NAIR, RESIDING AT KAILAS BHAVAN R & R CONSTRUCTION, THENGOD P.O., KOCHI-682 021, THRIKKAKARA VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.K.L.VARGHESE SMT.SANTHA VARGHESE RESPONDENT(S)/RESPONDENTS/DEFENDANTS: -------------------------------------- 1. THE KERALA STATE HOUSING BOARD THIRUVANANTHAPURAM-695 001, REPRSENTED BY THE SECRETARY. 2. THE EXECUTIVE ENGINEER, KERALA STATE HOUSING BOARD, PALAKKAD DIVISION, T.B.ROAD, PALAKKAD-678 014. ADV. SRI.A.JAYASANKAR, SC KSHB, TVM FOR R1 & 2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A.NO.981 OF 2008 IN CRP.NO.356 OF 2008 DISMISSED. 25.9.2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.356 OF 2008 () ----------------------------------- Dated this the 25th day of September, 2009 O R D E R The revision is directed against the order dated 12.3.2008 in I.A.No.39992 of 2006 in O.S.No.333 of 2005 passed by the learned Sub Judge, Palakkad. Petitioner is the plaintiff in the above suit, which was one for recovery of money for the work done on the basis of an agreement with the respondents/defendants. In the suit, petitioner/plaintiff moved an application for reference to arbitration the disputes involved suggesting the issues emanating for settlement. The respondents/defendants, who have already filed a written statement disputing the entertainability of the suit claim resisted the application filing written objections. The learned Sub Judge, after hearing both sides, passed the impugned order holding that since there is no consensus between the parties for reference to arbitration, the request of the CRP.356/08 2 petitioner/plaintiff cannot be entertained, with the result, the application moved seeking that relief was dismissed. Propriety and correctness of that order is challenged in the revision invoking the supervisory jurisdiction vested with this Court under Section 115 of the Code of Civil Procedure. 2. I heard the learned counsel on both sides. The learned counsel for the petitioner, invited my attention to the rules framed by the High Court under Section 122 of the CPC with reference to Section 89 of the CPC. The above rules are called the Civil Procedure (Alternative Dispute Resolution) Rules, 2008, which have been published in the Gazette on 7.3.2008. Inviting my attention to Rule 5 (f) and (g), the learned counsel for the petitioner submitted that the view taken by the court below that a reference can be made when one of the parties seek for resolution of the disputes by way of any of the methods covered by Section 89 of the CPC only on consensus or agreement by the opposite party, is not correct and the court was expected to examine whether there are chances of settlement by reference, as desired for. So much CRP.356/08 3 so, according to the learned counsel, the impugned order suffers from not only error of law, but, jurisdictional infirmity warranting interference by this Court. On the other hand, the learned counsel for the respondents/defendants, inviting my attention to Southern Structurals Ltd. v. K.S.E.Board (2008 (1) KLT 105 (F.B.)), contended that this Court has held in unequivocal terms that in the absence of consensus by the parties, a reference under Section 89 of the CPC is not permissible as it is violative of the provisions covered by the Arbitration and Conciliation Act, 1996. So much so, according to the learned counsel, no interference with the order passed by the learned Sub Judge is called for. The learned counsel for the petitioner, in all fairness, submitted over the question whether a compulsory reference can be made by the civil court under Section 89 of the CPC, divergent and conflicting views have been expressed by the apex court and till a decision is rendered by a larger bench, this Court and also the subordinate courts have to follow the law laid down by the Full Bench in the above reported decision. In the light of the decision rendered by this Court, in Southern Structurals CRP.356/08 4 Ltd. v. K.S.E.Board (2008 (1) KLT 105 (F.B.)), I find no challenge can be raised against the order passed by the curt below declining the reference to the arbitration, as desired by the petitioner/plaintiff in the suit. The revision is therefore dismissed. S.S.SATHEESACHANDRAN JUDGE prp