M/s J.J.H. Industries Limited, Calcutta vs The Secretary, Punjab State Electricity Board The Mall, Patiala and another

J.S. Sekhon, J.—The petitioner-plaintiff has directed this revision petition against the order dated 30th November, 1987 of Shri N.D. Bhatara, Subordinate Judge 1st Class, Patiala, closing its evidence.

In brief, the facts relevant for the disposal of this petition are that M/s J.J.H. industries Limited, filed petition under Sections 8, 9, 11 and 33 of Arbitration Act, 1940, against the Punjab State Electricity Board, Patiala, as well as against Mr S.S. Sarwal, Arbitrator respondent No. 2, for declaring the award of the Arbitrator respondent No. 2 as invalid and void on various grounds. It is noteworthy that Shri Sarwal was working as Chief Engineer with the Elecricity Board at the time of the institution of these proceedings. This application was resisted by the respondents on various grounds and they had engaged a common counsel Shri D.C. Khanna. Various issues were framed in these proceedings on 6th May, 1986 and thereafter the matter remained pending for the evidence of the plaintiff on different dates. The petitioner then examined one of its Directors and last opportunity was granted to produce the Arbitrator as witness for 30th November, 1987, but on the failure of the petitioner to effect service on the said witness, the impuned order was passed.

I have heard the learned counsel for the parties besides perusing the trial court file. The petitioner had requested that Mr. Sarwal, respondent No. 2, be directed to produce the arbitration proceedings record on 15th November, 1986 the trial Court advised the petitioner to summon Mr. Sarwal as his witness for proving certain documents, but unfortunately aforesaid Mr. Sarwal had retired by then and could not be served. On 20th August, 1987, the petitioner was burdened with costs of Rs. 50/- for its lapse in not producing its evidence and the case was then adjourned to 9th October, 1987. For 9th October, 1987, Mr. Sarwal had reported on the back of the summons that he could not attend the Court due to pre-engagements and requested for another date. The case was then adjourned to 30th November, 1987 after burdening the petitioner with costs of Rs. 75/- besides holding that the petitioner shall be responsible for effecting service and last opportunity was granted. On 30th November, 1987, the costs were paid and one witness was examined by the petitioner, but due to non-service of Mr. Sarwal, the evidence of the petitioner was closed and the case was adjourned for respondent''s evidence.

The above-referred facts clearly show that the petitioner being a private limited Company could not be held responsible for effecting service on a retired Chief Engineer of the Electricity Board, especially when the latter himself was a party to the original proceedings and represented by a counsel Shri D.C. Khanna. Thus, the trial Court could have easily directed the counsel for respondent No. 2 to produce the respondent as a witness instead of burdening the petitioner with the responsibility of effecting his service. Keeping in view the well known dictum that justice should not only be done but it appears to have been done, so that the public at large should not lose confience in the judicial set up entrusted with the onerous duty of the administration of justice, it transpires that the impugned order had certainly resulted in mis-carriage of justice as a party is being restrained from adducing material evidence and that too of an Arbitrator who himself happened to be a party to these proceedings. Under these circumstances, there is no force in the contentions of the learned counsel for the respondents that the impugned order of the trial Court was justifiable as the proceedings were lingering on since 6th May, 1986 for the evidence of the petitioner.

For the foregoing reasons, the impugned order of the trial Court is set aside by accepting this revision petition, but without any order as to costs.

The parties through their learned counsel are directed to appear before the trial Court on 17th October, 1988, the date already fixed in the parent suit. The trial Court file be sent back forthwith. The trial Court shall take effective steps to ensure the presence of Mr. Sarwal and dispose of these proceedings expeditiously.