New Capital Cinema Mallital vs Nagar Palika Parishad, Nainital

B.S. Verma, J.—By means of this writ petition, the petitioner has sought the following reliefs:

(i) issue a writ, order or direction in the nature of certiorari to quash the order dated 26.6.2009 passed by the Court of First Additional District Judge/First FTC, Nainital rejecting application Nos. 34Ga in Misc. Arbitration Case No. 86 of 2007, M/s New Capital Cinema Mallital, Nainital v. Nagar Palika Parishad, Nainital (contained in Annexure No. 14).

(ii) Issue a writ, order or direction in the nature of certiorari to quash the order dated 26.6.2009 passed by the court of First Additional District Judge/First FTC, Nainital rejecting application No. 35 Ga in Misc. Arbitration Case No. 86 of 2007, M/s New Capital Cinema Mallital, Nainital v. Nagar Palika Parishad, Nainital (contained in Annexure No. 14).

(iii) Issue a suitable order or direction allowing the stay application (application No. 34Ga) as well as the amendment application (application No. 35Ga) filed by the petitioner in the court of First Additional District Judge/First FTC, Nainital in Misc. Arbitration Case No. 86 of 2007, M/s New Capital Cinema Mallital, Nainital v. Nagar Palika Parishad, Nainital (Annexure Nos. 10 and 11 respectively).

(iv) Issue any other writ, order or direction which this Hon''ble Court deems fit and proper under the facts and circumstances of the case.

Brief facts giving rise to the writ petition, according to the petitioner, are that the petitioner was given lease on 08.01.1997 for a period of ten years on rent at the rate of Rs. 20,000/- per annum. The said period of ten years expired at the end of year 2003.

In the lease deed dated 08.01.1997, clause No. 24 refers for arbitration, which reads as under:

That if there will be any dispute regarding the terms, conditions of the above lease then that will be decided by the Arbitration and to decide the dispute with the consent of both the parties, "The Commissioner, Kumaon Division, Nainital" is appointed as Arbitrator and the decision of the Commissioner, Kumaon Division will be final and binding upon both the parties and in the Arbitration proceedings the provisions of Arbitration Act 1940 and Arbitration & Conciliation second Ordinance 1996 will be applicable.

After the expiry of period of ten years, the Nagar Palika Parishad did not renew the lease deed in favour of the petitioner. Therefore, the petitioner approached the Arbitrator i.e. Commissioner, Kumaon Division, Nainital. After hearing both the parties, the Arbitrator gave his award on 01.08.2007 denying the renewal of lease in favour of the petitioner firm. Aggrieved by the award dated 01.08.2007 the petitioner preferred objections before the District Judge, Nainital u/s 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act), which is pending for disposal.

Later on, the petitioner filed application (Application No. 34-Ga) which was registered as Misc. case No. 86 of 2007 to stay the proceedings in the case on the ground that the Division Bench of this Court on 12.05.2009 passed order in Writ Petition (PIL) No. 35 of 2009, Smt. Preeti Bisht v. District Magistrate, Nainital and Ors. directing the District Judge, Nainital to July, 2009. The order was assailed by the petitioner before the Hon''ble Supreme Court by filing the SLP (Civil) No. (CC7001/2009) M/s New Capital Cinema, Mallital v. District Magistrate, Nainital and Ors. and the Hon''ble Supreme Court on 22.05.2009 passed the order to the effect that in the meantime, status quo, as obtaining today, with regard to possession of the disputed premises shall be maintained. The learned 1ensure that Section 34 Application pending in his Court is disposed of either on 6th June, 2009 itself or soon thereafter and, in any event, before 31stst Additional District Judge, after hearing the petitioner as well as the Opp.party, dismissed the application (Paper No. 34 Ga) of the petitioner on the ground that the operation of the order dated 12.05.2009 was not stayed, only the order was passed to the effect that in the meantime, status quo, as obtaining today, with regard to possession of the disputed premises shall be maintained. The learned Additional District Judge specifically mentioned in his order that if any issue arises at the time of disposal of Section 34 Application, regarding possession of the disputed premises, same would be disposed of as per direction given by Hon''ble Supreme Court. I find no error in the order impugned because the learned court below has to decide whether the award passed by the Arbitrator /learned Commissioner can be set aside on the grounds mentioned in the application u/s 34 of the Act. The court below has yet to examine the same. There appears no illegality or error in the impugned order rejecting the application (Paper No. 34Ga).

Learned Counsel for the petitioner further contended that the court below has also rejected the application (Paper No. 35 Ga) which was moved under Order VI Rule 17 CPC to amend the objection. The said amendment application was moved on the ground that certain grounds could not be agitated in the objection which was filed before the court u/s 34 of the Act due to inadvertent oversight.

For the sake of convenience, Order VI Rule 17 C.P.C. is being reproduced as under:- "17.Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

The proviso specifically clarifies that the application only can be allowed if a party, who is making amendment, in spite of due diligence, the facts were not within the knowledge of the party. The grounds, which the petitioner wanted to add, are almost the same which have been made in Para 10 of Section 34 Application. The time prescribed to file objection in the Arbitration and Conciliation Act, 1996 is three months from the date of arbitral award and it can only be extended by thirty days. The application for amendment is also barred by time. No sufficient reason was given in the said application. The amendment application (Paper No. 35 Ga) was also rightly rejected by the learned court below.

In view of above discussion, the writ petition is devoid of merit and is dismissed in limine. (Stay Application No. 5272/2009 stands dismissed accordingly.)

Certified copy of this order be supplied to the learned Counsel for the parties by tomorrow on payment of necessary charges.