Civil Revision No. 658 of 2009 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 658 of 2009 Date of decision: 18.05.2009. Council of Scientific and Industrial Research and another Petitioner Versus M/s National Insecticides and Chemical Limited ...Respondent CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. I.S.Sidhu,Advocate for the petitioner Mr. Naresh Markanda, Senior Advocate with Ms. Kavita Markanda, Advocate for the respondent. ***** S.D.ANAND, J. For enabling proper appreciation of controversy, it would be apt to notice the facts in the first instance:- The parties before this Court were litigating in Arbitration Case No. 63 of 1990 (Application under Section 20 of the Arbitration Act, 1940) which had otherwise, on point of fact, been filed by the respondent against the petitioners before this Court. Issues were framed and parties were afforded opportunity to adduce evidence. The parties, however, did not lead any evidence. The application was disposed of by the learned Trial Judge, vide order dated 17.11.1999 (Annexure P-3). In the course of that order, the learned Civil Revision No. 658 of 2009 -2- **** Trial Court noticed that the parties had admitted “the arbitration clause in Article No.2 on the agreement dated 2.5.1985”. They submitted separate list of proposed Arbitrators. Thereafter, the learned Trial Court observed as under:- “10. Both the parties to the suit have admitted about the existence of Article No.2 i.e. Arbitration clause in the agreement dt. 2.5.85. They have also requested for appointing any two persons as arbitrators out of the list given by them. As the parties are not at issue on any point so, the following persons are appointed as Arbitrator: i) ..... ii) ..... The aforesaid arbitrators shall adjudicate upon the list of claims as detailed out in para No.8 of this judgment. The fees of the Arbitrators shall adjudicate upon the claims and shall pronounce award within 4 months from the date they enter upon the reference. As this judgment has been passed on consent of both the parties, so, the parties are left to bear the costs of the case at their on level. File be consigned to the record room.” The application was disposed of accordingly. A plea for review of that order was filed by the petitioners herein on 6.12.1999. The averment, in the course thereof, was that the petitioners herein( and respondents therein) had not consented to Civil Revision No. 658 of 2009 -3- **** the disposal of the arbitration plea in the above manner. That application was declined by the learned Trial Court vide order dated 9.3.2006 (Annexure P-4). The petitioners filed an appeal against that order which was dismissed by the learned Ist Appellate Court by noticing the following “admitted” facts:- “a) Vide order dated 17.11.1999 learned Civil Judge appointed above named two arbitrators with the consent of the parties. b) Appeal filed against the order dated 17.11.1999 by present appellant was allowed by Hon'ble Additional District Judge on dated 8.12.2000. c) The Hon'ble High Court in Civil Revision No.1117 of 2001 set aside the order of Appellate Court dated 8.12.2000 with stipulation that the review application filed before the trial Court be decided as the petitioners conceded not to raise the objection in respondent of the pendency of the appeal. d) Review petition was also dismissed on 9.3.2006.” It also held that an appeal against that order declining the review is not maintainable. Apart therefrom, the learned Ist Appellate court observed as under:- “Apart from it, both the orders are based upon proper appreciation of the material on the file. Keeping in view these facts and circumstances of the case, this appeal is Civil Revision No. 658 of 2009 -4- **** devoid of any merit and same is dismissed with costs. Decree Sheet be prepared accordingly and file be consigned to the record room.” It would require pertinent notice that petitioners herein had filed an appeal (M.C.A. No.31 of 7.1.2000-Annexure P-13) against the order dated 17.11.1999 which was allowed by the learned Ist Appellate Court vide order dated 8.12.2000. The order passed by the learned Trial Court was set aside and so also were the proceedings conducted by the Arbitrator and the matter was remanded to the learned Trial Court for decision afresh. For the purpose of clarification, it may be noticed that the respondent had also filed a revision (No. 1120 of 2001 ) against the order dated 8.12.2000-Annexure P-13) of the learned Ist Appellate Court. In revision, a Single Bench of this Court set aside the order dated 8.12.2000 and directed the learned Trial Court to decide the review application. This Court further noticed that the petitioner therein (respondent herein) had agreed “not to raise the objection in respect of pendency of the appeal”. It is made clear that the petitioners therein (respondent herein) shall be entitled to raise all other objections “as permissible under law except the above”. It is, thus, apparent on a conjunctive perusal of the order dated 8.12.2000 (Annexure P-13) and order dated 27.3.2003 (Annexure P-11) that the learned Trial Court had been directed to dispose of the review application. It is further apparent from the record that the review application came to be disposed of vide order Civil Revision No. 658 of 2009 -5- **** dated 9.3.2006 (Annexure P-4). The Ist Appellate Court declined the appeal against it, vide order dated 12.9.2008 (Annexure P-5). The learned Trial Court and also the learned Ist Appellate Court, in a stance of affirmation, held that the review was not competent as the order under challenge was based upon consent. The learned Trial Court had also observed that “an application under Order 47 Rule 1 seeking review can be filed where a party has discovered new and important matter which was not within his knowledge or could not be produced by him at the time when decree was passed and of mistake or error apparent on the face of record. In the present case nothing as such has been pointed out by the applicant whereas a perusal of decree shows that it has been passed on consent of both the parties as both the parties admitted about existence of arbitration clause in the agreement dated 2.5.1985 and they requested for appointment of any two persons as arbitrator out of the list given by them of their choice.” There is no escape from the conclusion that both the Courts would appear to have misdirected themselves by having refrained from recording a finding of fact about whether the impugned order was indeed based upon consent of the parties or not. At this stage, it would be pertinent to point out that the very review had been applied for on a precise averment that the petitioners herein had not actually consented to the grant of impugned order. It was, thus, for the learned Trial Court to record a precise finding about the correctness or otherwise of the averment. It could not wish away the Civil Revision No. 658 of 2009 -6- **** controversy by observing that the impugned order was based upon consent. In this context, it ought to have taken notice of the fact that the review application was filed on 6.12.1999 within few days of the impugned order dated 17.11.1999 (Annexure P-3). It is apparent, from a conjunctive perusal of the orders Annexure P-3 and Annexure P-4, that both the Courts did not address themselves to the premise upon the plea for review was based. In the light of the foregoing discussion, the petition shall stand allowed. Both the impugned order dated 17.11.1999 (Annexure P-3) and order dated 9.3.2006 (Annexure P-4) shall stand set aside. The learned Trial Court is directed to dispose of the matter afresh by a self-contained order. The exercise shall be concluded within one month from the date on which the matter comes up before it, for the first time. with a copy of this order. The parties, through their learned counsel, are directed to appear before the learned Trial Court on 25.5.2009. May 18, 2009 (S.D.Anand) Pka Judge