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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: Government Pleader
Judges
  • George Vadakkel, J.
Acts
  • 1955 Patna 277 (280). Therefore, S. 104(1)(i) of the Code read with Order XLIII Rule 1(r)
  • S. 12(6)(g) of the English Statute, Arbitration Act, 1950,
  • S. 20 of the Arbitration Act, 1940, (for brevity, the Act).
  • Order XXVI Rule 10(2) of the Code
  • Act read with S. 41(b)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: Government Pleader
Judges
  • George Vadakkel, J.
Acts
  • 1955 Patna 277 (280). Therefore, S. 104(1)(i) of the Code read with Order XLIII Rule 1(r)
  • S. 12(6)(g) of the English Statute, Arbitration Act, 1950,
  • S. 20 of the Arbitration Act, 1940, (for brevity, the Act).
  • Order XXVI Rule 10(2) of the Code
  • Act read with S. 41(b)
See more information ...
Smart Summary

Structured Summary of the Opinion (CRP. 3348 & 3349 of 1978)

Factual and Procedural Background

The dispute arises from a government contract executed by one A.I. Varoo (referred to as "Varoo"). Varoo died before completing the work he had undertaken; two different dates of death appear in the opinion (13-5-1977 in paragraph 1 and 18-5-1977 in paragraph 12). The State (1st respondent) entrusted the balance work to another contractor, Joseph. Varoo's widow and children (the revision petitioners/plaintiffs) filed a suit under Section 20 of the Arbitration Act, 1940 ("the Act").

The lower court allowed the suit and, by its decision dated 28-10-1978, made an order of reference to an appointed arbitrator — the Chief Engineer (Arbitration). The lower court referred specific points to the arbitrator, including questions about final payment due to Varoo, extra payment for additional lead, refund of security deposit and retention amounts, declaration that the balance works shall not be at the risk and cost of Varoo's estate, pendent lite interest, costs, and other reliefs (seven points listed in the order of reference).

During pendency of the suit the lower court had granted an interim restraint (I.A. 467 of 1978) preventing respondents from altering or modifying the work until "proper measurements" were taken; this injunction was dismissed by the lower court on 28-10-1978 on the ground that the suit had been disposed of. The revision petitioners challenged that dismissal in CRP. 3348 of 1978, contending the court retained power to grant interim injunctions under Section 41(b) of the Act and item 4 of the Second Schedule.

Separately, a commissioner was appointed to take measurements; his report was submitted but dissatisfied the revision petitioners. They sought to have the commissioner summoned and examined in court by I.A. 1092 of 1978; that application was dismissed by the lower court on 17-10-1978 and that dismissal was challenged in CRP. 3349 of 1978.

Legal Issues Presented

  1. Whether the order dismissing the application for temporary injunction (I.A. 467 of 1978) was amenable to the revision petition (i.e., the preliminary objection that such an order is appealable under Order XLIII Rule 1(r) CPC and S. 104(1)(i) of the Code should bar the revision).
  2. Whether the court has power to grant interim injunctions under Section 41(b) of the Arbitration Act, 1940 read with item 4 of the Second Schedule while arbitration proceedings are pending (and whether such power exists before arbitration commences).
  3. Whether the petitioners are entitled to have the court summon and examine the commissioner (appointed to take local measurements) under Order XXVI Rule 10(2) CPC when that person was authorised under Section 41(b) of the Act read with item 3 of the Second Schedule, i.e., whether Order XXVI procedures apply to persons authorised in relation to arbitration proceedings.
  4. Whether, as a matter of discretion and in view of the facts (delay in completion of the public irrigation work and claimed absence of "proper measurements"), relief by way of interim injunction ought to be granted to hold up completion of the works pending measurement/determination of the quantum of work done by Varoo.

Arguments of the Parties

Revision Petitioners' Arguments

  • The lower court should have continued the injunction previously granted by it (I.A. 467 of 1978) and had power to do so despite disposal of the suit by reference, relying on Section 41(b) of the Act and item 4 of the Second Schedule.
  • They argued that measurements had not been properly recorded and that unless the commissioner is examined in court (to challenge the commissioner's report) the quantum of work done by Varoo could not be ascertained; they sought that the commissioner be summoned and examined so that the report could be set aside or supplemented.
  • They relied on the authority in Jammu Forests Co. v. State (AIR 1968 J. & K. 86) to contend that proceedings before the arbitrator pursuant to an order of reference will be deemed to be proceedings before court, which would, in their submission, attract the full provisions of the Civil Procedure Code in relation to the matters in the Second Schedule.

Respondents' / Government Pleader's Arguments

  • A preliminary objection was raised that the order dismissing an application for temporary injunction is appealable under Order XLIII Rule 1(r) CPC and S. 104(1)(i) of the Code, and thus the revision petition (CRP. 3348) was not maintainable. The Government Pleader relied on the view that the provisions of the Code conferring rights of appeal must be read subject to the Act (citing Gopal v. M.P. Sundari).
  • The Government Pleader (and State) also cooperated in the practical arrangement later agreed between parties to appoint an engineer to measure the work and made the services of Sri K.A. Jossie available for that purpose.

Agreed Proposal by the Parties

  • By a joint memo dated 30-1-1979 both sides agreed that Sri K.A. Jossie, Executive Engineer, Minor Irrigation Division, Ernakulam, be appointed as Engineer-Commissioner to measure/ascertain the quantum of work done by Varoo. They agreed on initial remuneration of Rs. 1,000 to be paid by the revision petitioners and that ultimately the arbitrator may fix the final remuneration and decide liability for payment and expenses.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Gopal v. M.P. Sundari (AIR 1955 Patna 277) Principle that provisions of the Civil Procedure Code conferring a right of appeal must be read subject to the Arbitration Act; used in the context of appealability under the Code concerning orders under the Act. The court relied on the authority to reject the preliminary objection that S.104(1)(i) CPC read with Order XLIII Rule 1(r) governs orders passed on applications for interim injunctions under Section 41 of the Act. The court held there was no merit in the preliminary objection and proceeded with the revision.
Baby Paul v. Hindustan Paper Corporation Ltd. (ILR 1978 (2) Kerala 392) Considered whether the court has power to grant an interim injunction anticipating a reference and before arbitration commences; held that the court cannot grant such injunction prior to arbitration commencing. The court applied this reasoning to conclude that, since arbitration had in fact commenced here (order of reference under S.20(4) was made), the court could exercise powers under Section 41(b) read with item 4 of the Second Schedule to grant an interim injunction in relation to arbitration proceedings while making the order of reference.
Jammu Forests Co. v. State (AIR 1968 J. & K. 86) Observation that proceedings before the arbitrator pursuant to an order of reference will be deemed to be proceedings before court (affecting the applicability of Code provisions). The court considered this authority (relied on by petitioners) but disagreed with a construction that would make Section 41(b) redundant or would allow the full Code to operate in all respects during arbitrations without any limit. The court held that while some Code provisions apply to court proceedings under the Act, when proceedings are before the arbitrator the court's powers are confined to those conferred by Section 41(b) read with the Second Schedule.

Court's Reasoning and Analysis

The court proceeded by addressing the preliminary objection, then the scope of the court's power to grant interim reliefs during arbitration, and finally the specific reliefs sought by the petitioners (summons/examination of the commissioner and continuation of the injunction).

  1. Maintainability: The Government's objection that the order dismissing the interim injunction application was appealable under the Code (Order XLIII Rule 1(r) read with S.104(1)(i)) was considered and rejected. The court applied the principle that the provisions of the Code must be read subject to the Arbitration Act; consequently S.104(1)(i) read with Order XLIII Rule 1(r) did not govern an order on an application for interim injunction under S.41 of the Act. The court found no merit in the preliminary objection and proceeded to consider the substantive issues.
  2. Power to Grant Interim Injunctions under Section 41(b): The court analysed S.41(b) read with the Second Schedule (items 1–4) and held that the court is competent to grant interim injunctions for the purpose of, and in relation to, arbitration proceedings once arbitration has commenced. The court distinguished between the position before arbitration commences (when the court cannot anticipate a reference and grant an injunction) and the position after arbitration has commenced (when the court may grant interim relief under S.41(b) and the Second Schedule). The court relied on its earlier decision in Baby Paul to clarify that power exists only after arbitration has commenced.
  3. Equitable Discretion: The court emphasised that injunctions are equitable remedies dependent on judicial discretion and must be considered in light of all facts and circumstances. Preventive injunctions are particularly exceptional because they restrain threatened acts before they occur and are justified only when monetary compensation would be inadequate.
  4. Assessment of Facts and Public Interest: The court noted the long delay in completion of the Lift Irrigation Scheme (was to be completed by 25-11-1976; work continued until 8-5-1977 by mutual agreement) and that the project, intended for public benefit, remained unfinished because of interlocutory disputes and injunctions. The petitioners asserted that "proper measurements" had not been recorded and feared that completion would prevent ascertaining Varoo's quantum of work.
  5. Role of the Arbitrator and Scope of Court's Assistance: The court analysed the function of the arbitrator versus the court's role under S.41(b) and the Second Schedule. It observed that authorisation under the Second Schedule (item 3) permits the court to authorise persons to make local inspections or observations for arbitration proceedings, but that the primary adjudicatory function (weighing evidence, determining quantum) belongs to the arbitrator. The court cited Russell on Arbitration to show that the court's role is to aid arbitration by conferring authority on persons to obtain evidence, which the arbitrator will evaluate and on which the arbitrator can administer oaths and summon witnesses under the Act.
  6. Inapplicability of Order XXVI Rule 10(2) CPC to Persons Authorised Under S.41(b): The court held that Order XXVI Rule 10(2) (enabling examination of a commissioner in open court) is not available to examine a person authorised under S.41(b) read with item 3 for purposes of proceedings before the arbitrator. The court reasoned that the Code's provisions are made applicable only to proceedings before the court (S.41(a)), and that when matters are before the arbitrator the court's function is limited to conferring authority under the Second Schedule and not to conducting full Order XXVI-style examination that would effectively decide matters reserved for the arbitrator.
  7. On the specific applications: Given that the arbitrator had entered on the reference, and that the petitioners were effectively asking the court to determine the quantum of work (a matter for the arbitrator), the court found no reason to interfere with the lower court's refusal to summon and examine the commissioner. The court also observed that the arbitrator himself could inspect the site and, being an expert, could decide based on inspection and evidence; the arbitrator may delegate ministerial acts (e.g., measurements) where appropriate.
  8. Practical resolution: The parties filed a joint memo proposing the appointment of Sri K.A. Jossie as Engineer-Commissioner to measure the work. Treating this as an application to authorise a person to make a local inspection (within S.41(b) and item 3), the court authorised K.A. Jossie to perform the inspection and, to facilitate that task, restrained the respondents from altering or tampering with Varoo's work under the contract for a period of two months from the date of the order.

Holding and Implications

Final Disposition: CRP. 3348 of 1978 is disposed of by authorising the appointment of Sri K.A. Jossie as Engineer-Commissioner to measure and ascertain the quantum of work done by Varoo and by restraining the respondents from altering, modifying, tampering with or in any way changing the work done by Varoo under Agreement No. 3.SEMI/1975-'76 for a period of two months from the date of the order. CRP. 3349 of 1978 is dismissed.

Consequences and practical effects:

  • The court authorised a specific person (Sri K.A. Jossie) to make a local inspection and take measurements for the purpose of arbitration proceedings and restrained the respondents from altering the work for two months to facilitate measurement.
  • The parties agreed an initial remuneration of Rs. 1,000 to be paid to the Engineer-Commissioner by the revision petitioners; the court noted that the arbitrator may finally fix the remuneration and decide who is liable to pay for the same and for expenses incurred in connection with the measurements.
  • The court held that Order XXVI Rule 10(2) CPC is not available to examine a person authorised under S.41(b) and item 3 in relation to matters pending before the arbitrator; the primary fact-finding and adjudicatory role on quantum of work remains with the arbitrator.
  • Parties were directed to suffer their own costs in both revision petitions.
  • The court ordered administrative steps (communication of paragraph 13 to the Engineer-Commissioner under seal, issuance of carbon copies of the order to counsel as specified).

The decision resolves the immediate procedural disputes between the parties (appointment of a commissioner and a limited continuing restraint to preserve the subject-matter for measurement) and clarifies the limited scope of the court's powers under Section 41(b) and the Second Schedule while arbitration is pending. The opinion does not announce that it sets a broader binding precedent beyond the reasoning applied to the facts of these revisions.

Show full summary ...

    Thresia v. State Of Kerala

    1. Varoo was a Government Contractor. He died on 13-5-1977 before completion of a work he had undertaken to execute. The 1st respondent-State entrusted the execution of the balance work to one Joseph. Varoo's widow and children, the revision petitioners, then filed a suit under S. 20 of the Arbitration Act, 1940, (for brevity, the Act). The lower court allowing the suit has made an order of reference to the appointed arbitrator-the Chief Engineer (Arbitration) - as per its decision dated 28-10-1978. The points referred are:—

    (1). Whether the plaintiffs are entitled to an amount of Rs. 1,25,5000.00 or any other amount by way of final bill payment due for works done by late Sr. A.I Varoo under Agreement No. 3.SEMI/1975-1976 dated 27-10-1975.

    (2). Whether the plaintiffs are entitled to extra payment for additional lead for the conveyance of earth done by late Sri. A.I Varoo involving a distance of about 8 KM as against 3 KM specified in the agreement and if so what is the amount payable by the defendants to the plaintiffs.

    (3) Whether the plaintiffs are entitled to refund of the security Deposit and retention amounts pertaining to contract Agreement No. 3.SEMI/1975-1976 dated 27th October 1975 lying to the credit of late Sri. A.I Varoo with the Defendants.

    (4). Whether the Plaintiffs are entitled to a declaration that the balance works under contract No. 3.SEMI/1975-1976 dated 27-10-1975 if any, got executed or to be got executed by the Defendants, the same shall not be at the risk and cost of the estate of late Sri. A.I Varoo or his legal heirs or successors.

    (5) Interest pendent lite.

    (6) Costs

    (7) What are the reliefs to be granted against the above issues in favour of the plaintiffs.

    2. As per order on I.A 467 of 1978 the lower court had restrained the respondents (the 2nd respondent is the concerned Superintending Engineer) from altering, modifying, destroying or in any way changing the work already carried out by Varoo till ‘proper measurements’ thereof are taken. On 28-10-1978 the lower court dismissed this application on the ground that the suit has been disposed of. In CRP. 3348 of 1978 directed against this order of dismissal of I.A 467 of 1978 it is contended that the lower court should have continued the injunction granted and that the lower court has, notwithstanding the disposal of the suit under S. 20 of the Act, power to grant interim injunction. The learned counsel for the revision-petitioners rely on S. 41(b) of the Act and item 4 in the Second Schedule to the Act. During the pendency of the suit, at the instance of the revision petitioners, a commission was issued to the take the measurements of the work done by Varoo. He submitted a report. Dissatisfied with it the revision petitioners by I.A 1092 of 1978 sought to have the commissioner, a retired engineer, summoned and examined in court. The lower court dismissed this application by order dated 17-10-1978 which is under challenge in CRP. 3349 of 1978.

    3. The learned Government Pleader raised a preliminary objection to the maintainability of CRP. 3348 of 1978 on the ground that the order dismissing an application for temporary injunction is an order appealable under Order XLIII Rule 1(r) of the Code Civil Procedure, 1908. S. 41 of the Act by clause (a) thereof makes the provisions of the Code applicable to all proceedings before Court, and to all appeals, under the Act, but subject to the provisions of the Act and rules thereunder. The provisions in the Code conferring right of appeal have to be read subject to S. 39 of the Act; this means that only such orders passed under the Act as are mentioned therein are appealable. See Gopal v. M.P Sundari (AIR. 1955 Patna 277 (280). Therefore, S. 104(1)(i) of the Code read with Order XLIII Rule 1(r) therein does not govern an order passed on an application for interim injunction filed under S. 41 of the Act, be it under clause (a) or clause (b) thereof. There is no merit in the preliminary objection.

    4. In view of S. 41(b) of the Act and item 4 in the second schedule the court is competent to grant interim injunctions even-when no proceedings are pending in court provided arbitration has commenced and arbitration proceedings are pending before the arbitrator. In Baby Paul v. Hindustan Paper Corporation Ltd. (ILR. 1978 (2) Kerala 392) I examined the question whether the court has power to grant interim injunction anticipating a reference and before arbitration commences, and answered it in the negative by holding that the court can exercise its powers under S. 41(b) of the Act read with items 1 to 4 in the second schedule thereto only after the arbitration commences. Arbitration has commenced in this case since the lower court has made an order of reference under S. 20(4) of the Act. The court can, while making an order of reference to the arbitrator, in exercise of its power under S. 41(b) of the Act read with item (4) in the second schedule thereto, grant interim injunction for the purpose of and in relation to arbitration proceedings, and this, it appears to me, can be done by passing necessary orders on an application already filed under clause (a) of S. 41 of the Act.

    5. Though the court is competent to grant interim injunction, as aforesaid, it is to be remembered that granting of injunction is an equitable relief dependent upon the judicious exercise of discretion on the part of the court after taking into account all the facts and circumstances of the case. This is particularly so, so far as preventive injunctions are concerned, for preventive injunction is a relief granted beforehand to prevent or restrain some threatened act being done, which, if done, would cause the applicant substantial damage and for which money would be no adequate or sufficient remedy. Therefore, it is necessary to consider whether this is a fit case to grant interim injunction sought for.

    6. In the case on hand what is sought to be prevented is the completion of an irrigation work, the Lift Irrigation Scheme, Kalloor-which, as per the agreement executed by Varoo on 27-10-1975 was to be completed a couple of years ago, by 25-11-1976. According to the petitioners the work continued thereafter till 8-5-1977 by mutual agreement. After Varoo's death on 18-5-1977, it appears that some correspondence ensued to ascertain the willingness of the 3rd petitioner to take up the remaining work and complete it. He seems to have declined. From the order under revision in. CRP. 3349 of 1978 it is seen that according to the respondents measurements were taken on 5-9-1977 and 7-9-1977 in the presence of the 3rd petitioner. Fresh tenders returnable by 25-1-1978 were invited. Tender submitted by Joseph was accepted thereafter. The revision petitioners then filed the suit on 21-4-1978 before the Vacation Bench of this Court and by interim injunction issued by this Court on that day and extended thereafter, the respondents were prevented from handing over the site to Joseph for four weeks from then. Thereafter the lower court granted interim injunction on the lines mentioned earlier in this judgment, and this was in force till 28-10-1978. Later, this court by order dated 27-11-1978 granted interim injunction on the same lines, and this is still in force. The result is that the Irrigation Scheme, intended for the benefit of the general public and which was to be completed two years back, is still notfinished.

    7. According to the petitioners ‘proper measure mints’ have not been recorded, and they fear that if the work is completed without taking measurements it will not be possible to ascertain the quantum of work done by Varoo. Therefore, they sought to have the measurements taken by a Commissioner deputed by the lower court. A commission was issued, and the commissioner has submitted his report, but not to the satisfaction of the revision petitioners. They therefore want to examine the commissioner to substantiate their contention that the commissioner has not properly discharged his duties. By examining the commissioner they hope to have the report set aside and a fresh commission sent out, or at least to have the report remitted to the commissioner for supplemental report. This means that the petitioners are indirectly requesting the court to determine the quantum of work executed by Varoo, and to bring all work to a stand-still till such determination. Now, that an arbitrator has entered upon the reference, or is about to do so, is it necessary to have the aid of the court for determining the quantum of work carried out by Varoo, and would it be proper for the court to decide that matter which really is the function of the arbitrator, fall for consideration.

    8. At this stage, it would be pertinent to consider the question, whether the petitioners are entitled to have the commissioner summoned and examined as sought for by I.A 1092 of 1978 from which CRP 3349 of 1978 arises. S. 41(b) of the Act read with item 3 in the second schedule thereto confers power on the court to authorise any person to make a local inspection of the work-site and to make any observations which may be necessary or expedient for the purpose of obtaining full information or evidence for the purpose of and in relation to, arbitration proceedings pending before the arbitrator.

    “As with other forms of discovery, recourse may be had, in the event of refusal to comply with the arbitrator's order, to the court's powers. These are to make orders in respect of the inspection of any property or thing which is the subject of the reference (or as to which any question may arise there); and to make orders authorising any person to enter for any of these purposes upon or into any land or building in the possession of any party to the reference, and to make orders authorising any samples to be taken or any observation to be made or experiment to be tried which may be necessary or expedient for the purpose of obtaining full information or evidence.”

    9. (Russell on Arbitration, 18th Edn. P. III)

    10. The learned author, for this relies on S. 12(6)(g) of the English Statute, Arbitration Act, 1950, corresponding to item 3 in the second schedule to the Act read with S. 41(b) thereof. However, I do not think that the provisions of Order XXVI of the Code would be attracted to that event and this is so, because the provisions of the Code have been made applicable only to proceedings before court (S. 41(a); so that, so far as proceedings before the arbitrator are concerned, the court's power is only to confer authority on any person to perform one or the other of the things mentioned in item 3. This is, as it ought to be, for it is the arbitrator who has to adjudicate upon the evidence furnished by a person authorised by the court in terms of item 3, and its correctness, veracity and probative value. Note that S. 43 of the Act empowers the court to issue processes to parties and witnesses whom the arbitrator desires to examine directing them to appear before the arbitrator, and therefore the person authorised as aforesaid can be compelled to give evidence before the arbitrator with reference to the results of his observations or of other things done by him, and that under S. 13(1) of the Act, the arbitrator can administer oath to witnesses, wherefore the commissioner can be compelled to give such evidence under oath.

    11. Relying on the observations in Jammu Forests Co. v. State (AIR. 1968 J. & K. 86) that proceedings before the arbitrator pursuant to an order of reference made under S. 20 of the Act will be deemed to be proceedings before court, it is contended on behalf of the revision petitioners, that all the provisions of the Code would be attracted to matters mentioned in the second schedule even while proceedings are pending before the arbitrator, and court can exercise any of its powers vested in it under the Code in relation to such matters. With respect, the construction placed on S. 41(b) as aforesaid in Jammu Forest Co. v. State (AIR. 1968 J. & K. 86), it appears to me, would make clause (b) of S. 41 inapplicable to arbitrations without the intervention of the court, and I do not think that in this respect there is any distinction between the three classes of arbitrations dealt with in the Act. It is my view that while arbitration is pending before the arbitrator, the court's powers are only such as are conferred on it by S. 41(b) of the Act read with the matters set out in the second schedule, and nothing more and nothing less. This is clear from the proviso to that clause where under the conferment of powers on the court shall not be taken to prejudice any power, the arbitrator has with respect to such matters. While all proceedings in court under the Act including proceedings under clause (b) of S. 41 and those after the filing of the award in court would be governed by the provisions of the Code, and while after filing of the award in court, it may under S. 18(1) pass such interim orders as it deems necessary, when proceedings are before the arbitrator, the court's function is only to aid the arbitration proceedings by making such orders under S. 41(b), read with the matters set out in the second schedule, for the purpose of, and in relation to proceedings before the arbitrator, which if made by the arbitrator would have no legal efficacy nor legal sanction.

    12. In the light of the above discussion it has to be said that Order XXVI Rule 10(2) of the Code which enables a party to a suit to examine the commissioner personally in open court touching any of the matters referred to him or mentioned in his report or as to his report or as to the manner in which he has made the investigation, is not available to examine a person authorised under S. 41(b) of the Act read with item 3 in the second schedule for the purpose of and in relation to proceedings before the arbitrator. No doubt the order under revision in CRP. 3349 of 1978 was passed a few days earlier, on 17-10-78, wherefore, it could, perhaps, be said that the provisions of Order XXVI could be invoked then, but still, in so far as the commissioner was sought to be examined with the object of inviting the court to determine finally the quantum of Work executed by Varoo upto 8-5-1977, and since that is one of the matters that requires to be determined by the arbitrator, and the suit itself has been disposed of shortly thereafter by making an order of reference, I do not think that any interference is called for with the order under revision in CRP. 3349 of 1978.

    13. Reverting to the question of interim injunction as prayed for in CRP. 3348 of 1978, it is necessary to notice that there is no motion before the court to authorise any person to make a local inspection of the work-site. The effect of the interim injunction as asked for would be to hold up the completion of the work till ‘proper measurements’ are taken, or in other words, till such time as the arbitrator, on the basis of information and evidence furnished by someone who may hereafter be authorised by court to make a local inspection and take measurements, determines the quantum of work done by Varoo upto 8-5-1977, and, perhaps, if either of the parties is dissatisfied with such determination, till the court and the appellate court, finally pronounces thereon. In this connection it is necessary to point out that the arbitrator himself can, in his discretion, inspect the site and view the premises, and either of the parties can be ordered to show him the same. (See, Russel on Arbitration, 18th Edition Page 190 and implied condition No. 6 in the 1st schedule to the Act). No doubt as stated by the learned author:—

    “A view or inspection does not do away with the necessity for evidence, except in cases where it is clear from the terms of the submission that the arbitrator was appointed on account of his skill and knowledge of the subject, and that it was intended that he should decide without receiving evidence.”(Ibid)

    14. Here the parties have agreed upon the Chief Engineer (Arbitration) as the arbitrator, and it cannot be disputed that he was appointed on account of his skill, and because he may decide the dispute on the basis of his local inspection alone without any other evidence. Besides—

    “It seems that an arbitrator may delegate to another the performance of acts of a ministerial character only e.g, the measurement of the number of acres in a field or the surface of a lake are acts of such a character. It is not always easy to ascertain what acts are included under the head of ministerial acts.” (Russell on Arbitration-18th Edn., P. 192.)

    15. In the light of the above discussion, I am not prepared to say that the lower court went wrong in vacating the interim injunction when it disposed of the suit, though the reason stated therefor cannot be sustained.

    16. The learned counsel on both sides have filed a joint memo dated 30-1-1979 stating that they agree that Sri. K.A Jossie, Executive Engineer, Minor Irrigation Division, Public Works Department, Ernakulam may be appointed as the Engineer-Commissioner to measure and ascertain the quantum of work done by Varoo. The learned Government Pleader said that the Government would make available his services for that, and that he is willing to do the work of measuring and ascertaining the quantum of work done by Varoo. Treating this request as one to confer authority on Sri. K.A Jossie to make a local inspection and ascertain the quantum of work, I authorsise him to do so. In order to facilitate the taking of measurements and ascertaining the quantum of work done by Varoo, I restrain the respondents from altering, modifying, tampering with or in any way changing with the work done by late Sri. Varoo, under Agreement No. 3.SEMI/1975-'76 for a period of two months from today.

    17. In the result CRP. 3348 of 1978 is disposed of as indicated above in the preceding paragraph. I dismiss CRP. 3349 of 1978. The parties shall suffer their costs in both the Civil Revision Petitions.

    18. A copy of paragraph 13 shall be communicated to Sri. K.A Jossie mentioned therein forthwith under seal of this Court and signed by Deputy Registrar. The learned counsel appearing for the revision petitioners and the learned Government Pleader submits that they are agreed that the remuneration of Sri. K.A Jossie can initially be fixed at Rs. 1,000/- and the revision petitioners will for the time being pay the same to him. It is also submitted that the revision petitioners will meet initially the expenses that may be necessary for taking the measurements and ascertaining the quantum of work. The learned counsel on both sides are further agreed that the remuneration of Sri. K.A Jossie may finally be fixed by the arbitrator and that the arbitrator may decide upon as to who shall be liable for the same as also as to who shall be liable for the expenses incurred in connection with taking measurements and ascertaining the quantum of work.

    19. Issue carbon copy of this order to the learned Government Pleader free of cost and to the learned counsel appearing for the revision petitioners on receipt of requisite charges.

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    Comments

    Thresia v. State Of Kerala
    (Feb 1, 1979)