1. Two issues which presently await the verdict of the court are:
(i) Has this court jurisdiction to try this application? O.P.D
(ii) In case issue No. 1 is proved, is the application liable to be dismissed because it is not accompanied by the arbitration agreement or a copy thereof? O.P.R
2. The contention of the respondent is that according to the petitioner's own showing a sum of Rs. 2,380/- only is due to him from the respondent.
3. This application as such did not lie to the High Court. I find nothing in the application from which such an inference may be drawn. Paragraph 5 of the application which pertains to the jurisdiction of the court reads thus:
“5. The value of the work was Rupees 26997/- and this Hon'ble Court has the jurisdiction to try this case.”
4. This para is couched in a language which does not lead the court anywhere. It is not revealed from its reading as to what amount is actually due to the petitioner from the respondent on which alone would depend jurisdiction of the court to try the application. The application as such cannot be rejected under the provisions of Order 7, Rule 11 of the CPC without giving an opportunity to the petitioner to amend the same by stating therein the amount which according to him is due to him from the respondent. Issue No. 1 is decided accordingly.
5. While arguing Issue No. 2, Mr. Gupta invited my attention to Rule 12 of the Rules made by the High Court in exercise of the powers vested in it under Section 44 of the Arbitration Act (hereinafter as the Act). The Rule reads as under:
“Application under Section 20(1) of the Act, - Every application under S. 20(1) of the Act shall be accompanied by the original agreement and if the same be not in the possession or control of the applicant, then a copy thereof attested by a Magistrate First Class or any Gazetted Officer.”
6. On its plain language this rule enjoins upon the petitioner to file the original agreement along with the petition and in case he is not in possession of the original, then a certified copy thereof. In reply Mr. Malhotra raised an argument that this rule is ultra vires of the powers of the High Court inasmuch as the original agreement cannot be filed unless the court after hearing both the sides comes to a conclusion that the same has to be filed and makes an order accordingly. This argument, even though ingenious is yet untenable. The word “file” occurring in Section 20 of the Act has a different connotation from the one, which is conveyed by Rule 12. In this Section it has been used to convey the sense of acting upon the agreement and not merely producing it physically in the court. Even an agreement which has been lost and the contents whereof have been proved by secondary evidence can also be ordered to be filed in the court within the meaning of Section 20. Rule 12 merely speaks of its physical production in the court. I am supported in taking this view by a Bench decision of the Lahore High Court in Duni Chand Ram Parkash Firm v. Firm Prem Chand Maya Dass, AIR 1945 Lah 264.
7. Even so, the question still remains as to what is the effect of non-compliance with Rule 12. To me it appears that the Rule is not mandatory in character but is merely directory. No penalty for non-compliance with this rule has been provided in the Rules or even elsewhere in the Act. These Rules as a whole appear to be directory in nature. Even Rule 17 which appears to be more emphatic in terms contains an alternative of mentioning the date of the appointment of the Arbitrator or umpire. The object sought to be achieved by Rule 12 appears to be to make out a prima facie case for the satisfaction of the court to enable it to issue process to the opposite party, and not to provide a lever to the opposite party to seek dismissal of the petition without trial. Had the legislature intended that accompanying of the original agreement or a copy thereof would be sine qua non for the valid presentation of an application under Section 20, it would have made such a provision in the Section itself. It would be always open to the court to insist upon the production of the original agreement or its copy in the court by the petitioner and on his refusal to comply with its orders to reject the application. But, the court would not be justified in rejecting an application without first giving an opportunity to the petitioner to comply with the provisions of Rule 12. Issue No. 2 is decided accordingly.
8. I would, therefore, direct the petitioner to amend his application by stating as to what according to him, is due to him from the respondent and would further direct him to produce the original agreement or its copy in the court in terms of Rule 12 within two weeks from today. The case shall come up for further proceedings on 12-4-1979.
9. Order accordingly.