IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 90 of 2003 Date of decision September 25, 2008 __________________________________________________________ 1. CMP MO No. 90 of 2003 Harish Kumar & another ….Petitioners. Versus H.P.S.I.D.C Ltd. & another. ….Respondents ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ For the Petitioner: Shri G.D. Verma, Sr. Advocate, with Shri Romesh Verma, Advocate. For the Respondents: Shri Balwant Kukreja, Advocate. __________________________________________________________ Dev Darshan Sud, J. This petition has been preferred by the petitioner-plaintiff herein against the order passed by the learned Additional District Judge, Solan dismissing the appeal preferred against the judgment and order of the learned Sub Judge, Nalagarh passed in an Arbitration Case No. 1/2of 2001 under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act). Without entering into the merits of the appeal and the respective contentions raised by the parties, this petition deserves to be allowed on the question that the learned Sub Judge did not have inherent jurisdiction to entertain any petition under Section 34 of the Act ibid. The award was passed by the 1 Whether reports of Local Papers may be allowed to see the judgment? 2 Additional Director of Industries on 26th August, 2000 holding that resumption of plot by respondents was valid and in accordance with terms of allotment etc. The petition under Section 34 of the Act challenging the legality of the award was sent by this Court to the Court of the Sub Judge, Nalagarh for adjudication This course could not have been adopted. In Surat Singh Versus State of H.P. and another HLJ 2003 (HP) 691, this Court on an interpretation of Section 2(e) and 34 of the Act and Section 9 of the Himachal Pradesh Courts Act, 1976 has ruled that “7. A comparative look at the two provisions, one occurring in 1996 Act and the other in the Arbitration Act, 1940 in so far as the definition of the term “Court” is concerned, would manifestly and very clearly demonstrate that whereas in the Arbitration Act, 1940 the “Court” was defined to mean any Civil Court having jurisdiction to decide the questions forming the subject matter of the reference as if the same had been the subject-matter of a suit, under 1996 Act the meaning of the expression “Court” was narrowed down and confined to be principal Civil Court of original jurisdiction in a district. As noticed earlier, under Section 9 of the H.P. Courts Act, 1976, the “Court” of a District Judge alone is a principal Civil Court of original jurisdiction in a district. This is in sharp contrast to the definition as was occurring in the Arbitration Act, 1940 wherein any Civil Court with reference to its pecuniary and territorial limits, would have the jurisdiction to entertain any matter arising out of, or relating to any issue covered by 1940 Act as of it was the subject-matter of a civil suit. In elaboration of this point, we may refer to Section 15, CPC occurring in Part-1 of the Code of Civil procedure relating to the subject matter of the jurisdiction of the “Court” whereby it has been clearly stipulated that every suit shall be instituted in the “Court” of the lowest grade competent to try it. Not only Section 15, even subsequent Sections in Part-1 of the Code of Civil procedure, such as 3 Sections 16 to 20, being closely inter linked with each other would have the direct bearing to the substance and applicability of Section 2 (c ) of the Arbitration Act, 1940 to clearly spell out the Legislative intent behind Section 2 (c ) of that Act so as to convey that any Civil Court having territorial jurisdiction as well as having pecuniary jurisdiction would be competent to decide any question forming a subject matter of the reference arising under the aforesaid Act as if such subject-matter related to a suit. In clear departure from the aforesaid definition, under the 1996 Act the Legislature clearly circumscribed and specifically narrowed down the definition of the “Court” only to mean the “Court of principal Civil original jurisdiction in a district”, and it is only a Court of District Judge in a district which is such a “Court” of principal Civil original jurisdiction. (In this case we are not concerned with the inclusive definition as occurring in Section 2 (e) of 1996 Act relating to the jurisdiction of the High Court also being a Court of ordinary original civil jurisdiction). 8. On the basis of the aforesaid discussion, therefore, what clearly emerges is that irrespective of the valuation of the subject matter of a reference or any application filed under Part-1 of 1996 Act, including an Application filed under Section 34 of the Act, no Court other than the Court of a District Judge would have the jurisdiction to decide such a reference or such an application. In other words, therefore, the court of Senior Sub Judge, would not have the jurisdiction to decide such a reference or such an application.” It is trite that where a Court lacks inherent jurisdiction it cannot proceed with the trial irrespective of the fact as to whether parties object to it or not. Even consent cannot cure this defect and any judgment and decree passed by 4 the Court will be a nullity. (See Kiran Singh Versus Chaman Paswan,AIR 1954 SC 340). This petition is accordingly allowed. The petition under Section 34 of the Act which has been preferred by the plaintiff herein shall be tried by the learned District Judge, at Solan as an original petition. For this purpose, both the parties will be given an opportunity to substantiate their respective claims in accordance with law. In case the parties wish to supplement their pleadings over and above the material already placed on record, such opportunity shall be granted to the parties. They will be given full opportunity to establish their respective case by leading evidence etc., if so required. However, in case the parties so request, the material already placed on record shall be taken in support of their respective contentions. A prayer is made by the learned counsel appearing for petitioner that the order dated 6.4.2004 which was passed by this Court should be kept intact during the pendency of the proceedings before the learned District Judge. I have gone through the order dated 6.4.2004. Obviously at that time this Court had applied its mind to the issuance of an interim injunction. That order shall not be varied or vacated till the final disposal of the case by the learned District Judge. All pending miscellaneous applications shall stand disposed of. There shall be no order as to costs. Parties to appear before the learned District Judge, Solan on 3rd November, 2008. Let the records of the case be sent to that Court forthwith. September 25, 2008 (Dev Darshan Sud), (ms) Judge