IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 88 of 2008 Reserved on 27.6.2008 Date of decision: 4.7.2008 MD Gowthami Hydro Electric Company (P) Ltd. And another Petitioners. Versus Kailash Singh. Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioners: Mr. Ashok Sharma, Advocate. For the respondent: Mr. Romesh Verma, Advocate. Deepak Gupta, J. This petition under Article 227 of the Constitution of India is directed against the order of the learned Civil Judge (Jr. Division) Court No.2, Rohru, District Shimla, dated 12.3.2008, whereby he has permitted the respondent (hereinafter referred to as the plaintiff) to lead additional evidence. The plaintiff filed a suit against the petitioners (hereinafter referred to as the defendants) for recovery of Rs.1,76,389/-. It was alleged that the defendants were given the work of construction of Andhra Stage-II Power House and some of the work of removal of debris/muck was further given by the defendants to the plaintiff. This work was for Rs.2,70,000/-. According to the plaintiff, he carried out the 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 work and requested the defendants to make payment for the work. However, the defendants did not make the payment. According to plaintiff, Shri Trilok Singh Thakur, Senior Executive Engineer, was appointed as arbitrator and both the parties contested the matter before him and thereafter the arbitrator passed an award and on the basis of the alleged award the plaintiff claimed recovery of this amount. The defendants filed written statement and denied the claim of the plaintiff. They also denied that Shri Trilok Singh Thakur was appointed as arbitrator or that he gave any award. Evidence was led on behalf of the plaintiff. The plaintiff summoned a witness from the defendant Company to produce the original of document Mark-X, stated to be the award of Shri Trilok Shingh Thakur. The official of the Company who appeared as a witness denied that any such document was received in the office of the Company. Thereafter, an application was filed by the plaintiff seeking permission under Section 65 of the Evidence Act to lead secondary evidence to prove the document. This application has been allowed. Hence, the present petition. The main contention of Shri Ashok Sharma, learned counsel for the defendants, is that the plaintiff could not have been permitted to lead secondary evidence in respect of these documents, since no notice in terms of Section 66 of the Evidence Act was served upon the 3 defendants to produce the document. It is also alleged that the document in question has been forged and interpolated because even to the naked eye it is apparent that the word ‘arbitrator’ under the signatures of Shri Trilok Singh Thakur has been added in the said document after the photostat copy was prepared. It is also argued that a perusal of the document would show that Shri Trilok Singh Thakur has referred to the plaintiff, as his client, which obviously means that he was not an arbitrator. There can be dispute to the preposition that normally permission under Section 65 of the Indian Evidence Act should not be granted unless the provisions of Section 66 of the Indian Evidence Act are complied with; one of the conditions being that notice is given to the other party to produce the document(s). However, in the present case, I find from the record that the plaintiff summoned a witness from the Company and he was asked to produce the record including the document in question. This witness stated that no such record exists in the Company. This, in my opinion, would amount to notice to the Company. In the present case, Shri Trilok Singh Thakur has already been examined and the document has been exhibited. Therefore, at this stage, I do not feel that it would be proper to interfere with the order passed by the learned trial Court. 4 Shri Ashok Sharma has vehemently argued that the document is interpolated and even if it is accepted to be an award then also no suit on the basis of such award can lie. An award is enforceable as a decree only if it is filed in the Court in terms of Section 34 of the Arbitration and Conciliation Act, 1996. At this stage, I do not propose to enter into the dispute as to what is the evidentiary value of the document. This has to be decided by the Court at the time of hearing of the case. However, in case the document is an award, it is obvious that the same cannot be enforced except in accordance with the provisions of Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act). If it is an award, the arbitrator must show that he had issued notices to all the parties and had conducted proceedings in accordance with the Arbitration and Conciliation Act, 1996. A civil suit cannot be filed for enforcement of an arbitration award which can be enforced only in accordance with the provisions of the Act. The arbitrator is also required to file in such cases the entire record to show that he conducted the arbitration proceedings in accordance with the provisions of the Act. Whether the so called agreement to appoint the arbitrator, the award of the arbitrator are forged or manipulated documents, as alleged by the petitioners, are 5 important question, which have to be decided at the time of hearing of the case. These questions shall be considered by the learned trial Court at the time of hearing and it is made clear that the dismissal of this petition does not mean that this Court has accepted the correctness of the document. This is for the trial Court to decide. With these observations, the petition is disposed of. No order as to costs. July 4, 2008 (Deepak Gupta), J. ™