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State Of Rajasthan v. M/S. Mehta Chetandas Kishandass
Factual and Procedural Background
The non-applicant (contractor) filed an application under Section 8(2) of the Arbitration Act on 27 July 1973 against the State of Rajasthan. The State resisted the application by filing a reply. The District Judge (Sri Ganganagar) framed seven issues, of which Issues Nos. 3, 4 and 6 were materially relevant:
- Issue No. 3: Whether the petitioner had waived his right to refer the matter to arbitration.
- Issue No. 4: Whether the petition was maintainable (including limitation objections).
- Issue No. 6: Whether the petitioner was entitled under Section 8 of the Arbitration Act to get an arbitrator appointed.
By order dated 30 May 1974, the District Judge accepted the contractor's application and directed that relief be granted. The State filed a revision (S. B. Civil Revision Petition No. 594 of 1974). In the revision order dated 10 July 1978 the High Court recorded findings: (1) because the State had not nominated, Clause 19(2) could not extinguish the contractor's claims (Issue 3 upheld); (2) there was no period prescribed for making an application under Section 8(2) and Article 137 of the Limitation Act, 1963 did not apply (Issue 4 confirmed); and (3) the contractor's case fell under Section 8(1)(a) so the District Judge was right to appoint an arbitrator (Issue 6 upheld). The revision was dismissed with costs.
The State sought review of the revision order under Order XLVII, Rule 1, C.P.C., arguing that the Supreme Court's decision in Kerala State Electricity Board v. T. P. Kunhaliumma (AIR 1977 SC 282) established that Article 137 of the Limitation Act, 1963 applies to applications such as that under Section 8(2) and therefore the contractor's application was time-barred; the State also argued that earlier decisions relied upon were overruled by that Supreme Court decision. Notice of the review was issued to the contractor on 9 September 1978, but nobody appeared for the non-applicant. The Court heard the Deputy Government Advocate, Mr. Rajesh Balia, for the applicant (State).
Legal Issues Presented
- Whether the contractor had waived his right to refer the matter to arbitration (Issue No. 3).
- Whether the petition under Section 8(2) of the Arbitration Act was maintainable, specifically whether Article 137 of the Limitation Act, 1963 applied and whether the application was time‑barred (Issue No. 4).
- Whether the petitioner was entitled to have an arbitrator appointed under Section 8 of the Arbitration Act (Issue No. 6).
- Whether the revision order dated 10 July 1978 contained a mistake or error apparent on the face of the record under Order XLVII, Rule 1, C.P.C., because it failed to apply the dictum of the Supreme Court in Kerala State Electricity Board v. T. P. Kunhaliumma.
Arguments of the Parties
Applicant (State of Rajasthan) — Arguments
- The State relied on the Supreme Court decision in Kerala State Electricity Board v. T. P. Kunhaliumma (AIR 1977 SC 282) to contend that Article 137 of the Limitation Act, 1963 applies to any petition or application filed under any Act to a civil court and, therefore, the contractor's application under Section 8(2) was time-barred.
- The State submitted that decisions which the High Court relied upon in deciding Issue No. 4 (including Town Municipal Council, Athani v. Presiding Officer, Labour Court (AIR 1969 SC 1335) and Kerala State Electricity Board v. Illippadical Parvathi Amma (AIR 1974 Ker 202)) had effectively been overruled by the Kerala State Electricity Board v. Kunhaliumma judgment, and the High Court's failure to notice the Supreme Court dictum constituted a mistake apparent on the face of the record under Order XLVII, Rule 1, C.P.C.
- The State argued that this was sufficient ground for review of the High Court's revision order.
Non-applicant (Contractor)
No appearance was made on behalf of the non-applicant despite service of notice. The opinion records no detailed submissions from the non-applicant.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kerala State Electricity Board v. T. P. Kunhaliumma, AIR 1977 SC 282 | Held that Article 137 of the Limitation Act, 1963 applies to any petition or application filed under any Act to a civil court; Article 137 is not confined to applications under the Code of Civil Procedure. | The Court treated this decision as binding and concluded that the High Court's finding (that Article 137 did not apply to Section 8(2) applications) was not in conformity with this Supreme Court dictum. The failure to notice this dictum was held to be an error apparent on the face of the record warranting review. |
| Town Municipal Council, Athani v. Presiding Officer, Labour Court, AIR 1969 SC 1335 | Previously held a view (by a two-judge Bench) that Article 137 was confined to applications contemplated by or under the Code of Civil Procedure (as understood in the opinion). | The Kerala State Electricity Board case disagreed with Athani; the Court found that the High Court's reliance on the view in Athani (and failure to follow Kerala State Electricity Board) amounted to inadvertency and a mistake apparent on the face of the record. |
| Kerala State Electricity Board v. Illippadical Parvathi Amma, AIR 1974 Ker 202 | Referenced as one of the decisions that the High Court relied upon and which, according to the State, could not be relied upon after the Supreme Court's Kerala State Electricity Board ruling. | The opinion records that the State contended this earlier decision had been overruled by the Supreme Court and that such change in authoritative law had not been taken into account by the High Court; this supported the conclusion that the decision on limitation was an oversight. |
| Harisankar v. Anath Nath, AIR 1949 FC 106 | Stated that if a court disposes of a case without advertence to or application of a provision of law which gives jurisdiction, that may amount to an error analogous to one apparent on the face of the record for review. | The Court relied on this authority to support the proposition that failure to apply a binding provision or dictum (here, the Supreme Court's decision on Article 137) can constitute an error apparent on the face of the record justifying review. |
| Mst. Jamna Kuer v. Lal Bahadur, AIR 1950 FC 131 | Illustrated that a mistake apparent on the face of the record (whether due to counsel's mistake or oversight by the Court) can justify review; the manner in which the error occurred is not decisive. | Used to reinforce that the High Court's oversight in not noticing the Supreme Court dictum could be corrected by review and that the cause of the error (oversight/inadvertency) is immaterial for the exercise of review jurisdiction. |
| Jairam v. Gopiram, 1854 Raj LW 148 | Held that a radical error which completely ignores a positive rule of law and is manifest or patent constitutes an error apparent on the face of the record sufficient for review. | Relied upon to show that failure to apply a mandatory statutory or judicial rule (here, the Supreme Court's ruling on Article 137) can amount to an error apparent on the record; the Court cited this as supportive authority for review. |
| Hari Vishnu v. Ahmad Ishaque, AIR 1955 SC 233 | Held that "error apparent on the face of the record" cannot be precisely or exhaustively defined and must be determined judicially on facts of each case. | The Court cited this authority to underline that determining whether an error is apparent on the face of the record involves judicial assessment of the facts, supporting its conclusion that the oversight warranted review. |
Court's Reasoning and Analysis
The Court considered the State's review application and focused on whether the High Court's earlier revision order contained an error apparent on the face of the record under Order XLVII, Rule 1, C.P.C. Central to that assessment was the Supreme Court's decision in Kerala State Electricity Board v. T. P. Kunhaliumma (AIR 1977 SC 282), which the Court quoted and summarized: the Supreme Court there held that Article 137 of the Limitation Act, 1963 applies to any petition or application filed under any Act to a civil court and is not confined to applications under the Code of Civil Procedure.
The Court found that the High Court's conclusion — that Article 137 did not apply to an application under Section 8(2) of the Arbitration Act — resulted from an inadvertency: neither the High Court nor counsel had noticed or brought to its attention the Supreme Court's dictum in the Kerala State Electricity Board case when deciding Issue No. 4. The opinion characterizes this omission as a failure to advert to binding Supreme Court authority.
To determine whether that omission amounted to an error apparent on the face of the record, the Court relied on established authorities (Harisankar v. Anath Nath; Mst. Jamna Kuer v. Lal Bahadur; Jairam v. Gopiram; and Hari Vishnu v. Ahmad Ishaque) which explain that: (a) disposing of a case without applying a provision of law giving jurisdiction can be equivalent to an error apparent on the face of the record; (b) mistakes apparent on the face of the record are reviewable irrespective of how the mistake occurred; and (c) the question whether an error is "apparent" depends on judicial determination of the facts.
Applying these principles, the Court concluded that the High Court's omission to notice and apply the binding Supreme Court dictum on Article 137 was an error apparent on the face of the record. That error was sufficient to invoke the review jurisdiction under Order XLVII, Rule 1, C.P.C. Consequently, the Court determined that the revision order dated 10 July 1978 should be reviewed.
Holding and Implications
Holding:
The application for review is GRANTED and the order dated 10 July 1978 passed in S. B. Civil Revision Petition No. 594 of 1974 is recalled.
Consequential Direction:
- The revision petition is to be posted for re‑hearing after notice to the parties.
Implications:
The direct effect is to set aside the High Court's earlier revision order and to require a fresh hearing in the light of the binding Supreme Court authority on Article 137 of the Limitation Act, 1963. The Court determined that the High Court's omission to apply that Supreme Court dictum amounted to an error apparent on the face of the record and thus warranted review. The opinion does not purport to lay down a new rule of law; it corrects the previous decision by directing re‑hearing so that the question of limitation (and other issues in the revision) may be reconsidered in the light of controlling precedent.
ORDER S.K. Mal Lodha, J.
1. This is an application for review under Order XLVII, Rule 1, C. P. C. against the order dated July 10, 1978 passed in S. B. Civil Revision Petition No. 594 of 1974 by which the revision filed by the State of Rajasthan was dismissed.
2. A few facts may be recounted: The non-applicant (Contractor) submitted an application under Section 8(2) of the Arbitration Act (No. X of 1040) (for short 'the . Act' hereafter) on July 27, 1973 against the State of Rajasthan. The State of Rajasthan resisted the application on various grounds by filing a reply. The learned District Judge framed seven issues inclusive of tre relief Issues Nos. 3, 4 and 6 are as under:
"(3) Whether the petitioner has waived his right to refer the matter to arbitration as alleged in para 11 of the reply and if so, what is its effect?
(4) Whether the petition is not maintainable as alleged in paras 13 and 14 of the reply?
(6) Whether the petitioner is entitled under Section 8 of the Arbitration Act to get an arbitrator appointed?"
The learned District Judge, Shri Ganga-nagar, by his order dated May 30, 1974 held that the non-applicant (Contractor) is entitled to a direction and, therefore, he gave the direction and accepted the application.
3. A revision petition was filed against the order of the District Judge Sri Ganganagar by which he accepted the application under Section 8(2) of the Act The revision petition was registered as S. B. Civil Revision Petition No. 594 of 1974. The following findings were recorded in the order dated July 10, 1978, passed in revision:
(1) That in the absence of a nomination by the State, the second para of Clause 19 (2) of the agreement cannot come into operation so as to extinguish all the rights and claims of the contractor, who had moved the Court under Section 8(2) of the Act. The finding on issue No. 3 was upheld.
(2) That there is no period prescribed for making an application under Section 8(2) of the Act and that Article 137 of the Limitation Act, 1963 has no application. Finding on Issue No. 4 was confirmed.
(3) That the case of the contractor was fully covered by the provisions of Section 8(1)(a) of the Act and consequently, the learned District Judge was right in appointing the Arbitrator under Section 8 of the Act. It was held that issue No. 6 was correctly decided by the District Judge.
In view of the foregoing findings, the revision petition was dismissed with costs. The State of Rajasthan has filed the application for review On the ground that in vipw of the decision reported in Kerala Slate Electricity Board v. T. P. Kunhaliumma, AIR 1977 SC 282, the application of the contractor under Section 8(2) of the Act was time-barred inasmuch as Article 137 of the Limitation Act, 1963 is applicable and that the decisions relied on by this Court while deciding issue No. 4 could not be availed of as the decisions in Town Municipal Council, Athani v. Presiding Officer, Labour Court, AIR 1969 SC 1335 and Kerala State Electricity Board v. Illippadical Parvathi Amma, AIR 1974 Ker 202 were overruled.
4. A notice was ordered to be issued to the non-applicant (contractor) on September 9, 1978. Despite service, nobody has appeared nn behalf of the non-applicant.
5. I have heard Mr. Rajesh Balia, Dy. Government Advocate, appearing for the applicant.
6. In Kerala State Electricity Board's case, (AIR 1977 SC 282), it was ruled as under:
"The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two Judge Bench of this Court in Athani Municipal Council case, (AIR 1969 SC 1335) (supra) and hold that Art 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application within the scope of Article 137 of the 1963 Limitation Act." Tt is, therefore, clear that Article 137 of the Limitation Act, 1963 is not confined to applications contemplated by or under the Code of Civil Procedure. The view taken while deciding issue No. 4 in the revision was not in conformity with the dictum laid down by their Lordships of the Supreme Court in Kerala State Electricity Board's case,"
7. Learned Deputy Government Advocate strenuously urged that the decision of issue No. 4 without taking note of the dictum laid down in Kerala State Electricity Board's case is a mistake or error apparent on the face of the record within the meaning of Order XLVII, Rule 1, C. P. C. and, therefore, finding of issue No. 4 while deciding the revision, can be reviewed.
8. It will be useful here to read relevant portion of Order XLVII, Rule 1, C. P. C.:
"Rule 1. Application for review of judgment.
(1) Any person considering himself ag-prieved. --
(a) bv a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order, In Harisankar v. Anath Nath, AIR 1949 FC 106, it was observed as under:
".....however, the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order 47, Rule 1, C. P. C.'' In Mst. Jamna Kuer v. Lal Bahadur ,AIR 1950 FC 131, it was observed as follows:
"There can be no doubt that this appeal must be allowed. The mistake as to the items of property regarding which Mt. Jamna Kuer had laid a claim is apparent on the face of the record. The trial Judge had clearly stated in his judgment that Jamna Kuer's claim to properties 3 to 37 of the gazette notification. In para 15 of her amended objection petition, she had laid down claims to all the properties left by Kunj Behari. On 29th April, 1942, it was admitted by the pleader of the applicants that all these properties related to the estates of Kunj Behari and that so far as the debtors were concerned, they were owners of only two properties mentioned in the gazette notification. In this situation it would have been appropriate if the High Court had corrected this error On the review petition and saved the appellant the trouble and expense of an appeal to the Privy Council or to this Court. Whether the error occurred by reason of the counsel's mistake or it crept in by reason of an oversight on the part of the Court was not a circumstance which could affect the exercise of jurisdiction of the Court to review its decision. We have no doubt that the error was apparent on the face of the record and in our opinion the question as to how the error occurred is not relevant to this enquiry. A mere look at the trial Court's decision indicates the error apart from any thing else."
9. In Jairam v. Gopiram, 1854 Raj LW 148, was held:
"A review of the case law dearly leads as to the conclusion that where the mistake or error of law is not merely one in the deposition of law relevant to a case but is a more radical error and amounts to completely Ignoring a positive rule of law, and the error is so manifest or patent that it admits of no doubt or dispute, such an error of law is one on the face of the record and is sufficient to satisfy the conditions of Order XLVII, Rule 1, C. P. C. We are of opinion that the error in the case before us is an error of this kind. If the attention of the learned Judges had been directed to Section 26 of the Limitation Act of the former State of Bikaner, or assuming that their attention had been directed to it, if they had applied their minds to that mandatory provision of statute law and discussed the contention raised before them, we have no doubt that they would not have fallen into the error into which they did. We are accordingly of the opinion that the error in the present case is an error apparent on the face of the record and satisfies the conditions of Order XLVII, Rule 1, C. P. C." (Underlining is mine) It needs to be mentioned here that their Lordships of the Supreme Court in Hari Vishnu v. Ahmad Ishaque, AIR 1955 SC 233, have held that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature and it must be left to be determined judicially on the facts of each case.
10. The view taken that Article 137 of the Limitation Act, 1963 has no application to an application under Section 8(2) of the Act was due to the fact that the learned counsel for the parties in the Revision, informed that Town Municipal Council's case, (AIR 1969 SC 1335) has not been reconsidered by their Lordships of the Supreme Court till then which was inadvertency Inasmuch as the dictum of their Lordships of the Supreme Court, which is binding, was not noticed and in ignorance of that, the finding in regard to the question of limitation was recorded. As the dictum of their Lordships of the Supreme Court was not noticed and overlooked while giving finding on issue No, 4, relating to the question of limitation for filing of the application under Section 8(2) of the Act, this, in my opinion, is a mistake or error apparent on the face of the record and it is a valid ground for review. This view of mine is supported by the aforesaid decisions of the Federal Court and Rajasthan High Court, This has necessitated reviewing of the order dismissing the revision.
11. The result is that the application for review is granted and the order dated July 10, 1978 passed in the revision is recalled. The revision petition shall now be posted for re-hearing after notice to the parties.
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