IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR a,«,i«« CIVILREVISION N0. .*^3 OF 2010 /APPLICANT ^l^ * w^t6 Vs. RESPONDENT ). Through Brijmohan Agarwal, aged about 59 years, S/o Late Shri KaliCharan Agarwal, e^.^y* "•'• ' Managing Director, Everest House, 'Danipara, Raigarh, Tahsil and District Raigarh (C.G.) K. IRON WORKS PVT. LTD. Registered Under Indian Companies Act, Registered Office Yamuna Nagar, District Yamuna Nagar (Haiyana) BEING AGGRErVED AGAINST THE ORDER DATED ll^b.t.io PASSED IN MISCELLANEOUS JUDICIAL CASE N0.»-tf8/2008 B^DISTKICT JUDGE RAIGARH fC.G.) IN CASE OF EVEREST CEMENT CO. VS K. IRON WORKS PVT. LTD. i^^> '^ % ^•®1% . B "fQS^^ j '^s^// . issy ^j- % HIGH COURT OF CHHATTISGARH AT BILASPUR CIVIL REVISION No. 53 OF 2010 APPLICANT RESPONDENT Everest Cement Company Ltd. VERSUS K. Iron Works Pvt. Ltd. REVISION UNDER SECTION 115 OF CODE OF CIVIL PROCEDURE (Sinale Bench: Hon'ble Mr. N.K. Aaarwal. J.l Present : Shri Anumeh Shrivastava, Advocate for the applicant. Shri PK Verma, Sr. Advocate with Shri Raghvendra Verma, Advocate for respondent. ORAL ORDER (Passed on 13/10/2011) 1. Instant revision filed under Section 115 of CPC is dlrected against the order dated 11.03.2010 passed by the District Judge, Raigarh, in MJC Case No. 08/08, dismissing the applicant's application filed under Order 9 Rule 4 of CPC for restoration of CivilSuitNo.12-A/92. 2. Facts in nutshell are : On 07.04.2008, the trial court dismissed * the proceedings of Civil Suit No. 12-A/92 for non appearance of the applicant. Immediately after two days i.e. on 09.04.2008 an application for Its restoration was filed by the applicant statlng reasons for his non appearance on the date of hearing. 3. The court below, instead of going into the sufficiency or otherwise of the reasons for non appearance of the applicant on the date of hearing, dismissed the restoration application holding arbitratlon proceeding preferred bythe applicant itself is not maintainable. ~^ 6. Shri Anumeh Shrivastava, learned counsel appearing for the applicant submits since the arbitration proceedings were filed under the provisions of the Act, 1940, the same has to be decided under the Act, 1940, therefore, the order impugned, hotding proceeding itself is not maintainable, is perverse. He would further submit the trial court while hearing the apptication for restoration of his case should have gone only to the question whether sufficient cause for restoration has been shown by the applicant or not, therefore, order impugned suffers from gross jurisdictional illegality and deserves to be set aside and consequently his application filed under Order 9 Rule 4 of CPC for restoration of Civil Suit be atlowed. Per contra, Shri PK Verma, learned Sr. counsel appearing for respondent submitted : proceedings of CM! Suit was unnecessarily pending before the trial court inasmuch as after appointment of arbitrator under Section 20 of the tndian Arbitration Act, 1940, the court became functus officio and infact no proceedingwas pending in Civit Suit No. 12-A/92 thereafter in the eye of law. 1 have heard the counsel appearing for the parties and perused the order impugned including records of court below. It is not in dispute that applicant filed restoration application immediately after two days of dismissal of Civll Suit. The Suit was pending since 1992 and therefore tt cannot be said that non appearance of applicant on 07.04.2008 was not bonafide or Q^ 9. intentional. However, the trial court, instead of deciding whether or not the applicant has shown sufffcient cause for his non appearance, has gone into the merits of the matter and dismissed the same holdlng arbitration proceedings (Civil Suit No. 12-A/92) filed under Section 20 of the Act, 1940, is not maintainable after commencement of Arbitration and Conciiiation Act, 1996, which is not sustainable in law. Proceeding were flled under the Act, 1940 and has to be decided in accordance with provisions of that Act. Be that as it may, to decide restoration application, the court should have examined the question whether or not applicant has shown sufficient cause for his non appearance on the date of hearing leaving other questions to be decided in the main proceedings. For the reasons mentioned hereinabove, the revision is a!lowed. Order impugned dated 11.03.2010 passed by the District Judge, Raigarh, in MJC Case No. 08/08, is set aside. Civl! Suit No. 12- A/92 is restored to its original number. The trial court is directed to decide the Suit expeditiously. • Parties are directed to appear before the trial court on 14.11.2011. ~ Sd/- N.K. Agarwal Judge Sahu