Pondicherry v. Cross Objectors/

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 31.07.2018 CORAMTHE HON'BLE MR.JUSTICE P.RAJAMANICKAMCross Objection. No.42 of 2002 in SA.No.2108 of 20011.The Union of India, rep. by The Chief Secretary, Govt. of Pondicherry.

The Secretary to Government, Public Works Department, Govt. of Pondicherry.

The Superintending Engineer, Buildings & Roads Circle-I, Public Works Department, Govt. of Pondicherry.

The Executive Engineer, National Highways (Division), Public Works Department, Pondicherry. ...Cross Objectors/RespondentsVsM.Nadarajan ...Respondent in Cross objection/ Appellant PRAYER: This Cross Objection filed under Order 41 Rule 22 of Civil Procedure Code, against the findings in the Judgment and Decree dated 18th October, 2001 on the file of the PrincipalDistrict Judge, at Pondicherry in AS.No.55/2001 reversing the Judgment and Decree dated 09.07.2001 in O.S.No.273 of 2000 onthe file of the District Munsif at Pondicherry. For Cross Objectors : Mr.J.Kumaran(Pondicherry) Government Advocate For Respondent : No appearance JUDGMENTThis Cross Objection has been filed by therespondents/defendants against the findings of the PrincipalDistrict Judge, Pondicherry in the Judgment and Decree passedin A.S.No.55 of 2001 dated 09.07.2001.2. The respondent herein has filed a suit in O.S.No.273of 2000 on the file of the I Additional District Munsif, Pondicherry for declaration that the Order No.83/PW/SE-I/W/ASW/F83/2000 dated 11.04.2000 as illegal, void andunsustainable on facts and for injunction restraining thedefendants from enforcing the said order. https://hcservices.ecourts.gov.in/hcservices/

3. The learned District Munsif by the Judgment and Decreedated 09.07.2001 has decreed the said suit as prayed for. Aggrieved by the same, the defendants have preferred an appealin A.S.No.55/01 on the file of the Principal District Judge, Pondicherry. The learned Principal District Judge by the Judgment and decree dated 18.10.2001 has allowed the saidappeal and set aside the Judgment and Decree passed by thetrial Court and dismissed the suit with costs. Feelingaggrieved, the plaintiff has filed the second appeal inS.A.No.2108 of 2001. The defendants have filed the presentcross objection challenging the findings of the firstAppellate Court.4. When the second appeal came up for hearing on26.06.2018, the learned Counsel for the appellant has made anendorsement stating that he is reporting no instructions. Hence, the appellants were called absent and this secondappeal was dismissed for default. On that date, the presentcross objection was not listed. Subsequently it was brought tothe knowledge of this Court with regard to the pendency of thecross objection. Accordingly, the cross objection has beenlisted for hearing today.

Already the appellant was called absent andconsequently second appeal was dismissed for default. In thismatter also, the appellant called absent. After hearing thearguments of Mr.J.Kumaran, learned Government Advocate, Puducherry and perusing the Appellate Court's Judgment and Decree and other records, judgment is being passed in thiscross objection.

The learned Government Advocate has submitted thatthere is an arbitration clause in the agreement and in view ofthe said clause, the plaintiff should have opted forarbitration, but contrary to the same, he has filed the abovesuit. He further submitted that without considering the same, the first appellate Court has erred in holding that there isno bar for filing the suit and hence he prayed to set asidethe said finding.

At this juncture, it would be relevant to referSection 8 of the Arbitration and Conciliation Act, 1996 whichreads thus:-

Power to refer parties to arbitration wherethere is an arbitration agreement - 2 (1)Ajudicial authority, before which an action isbrought in a matter which is the subject of anarbitration agreement shall, if a party to thearbitration agreement or any person claimingthrough or under him, so applies not later thanthe date of submitting his first statement on thesubstance of the dispute, then, notwithstandingany judgment, decree or order of the Supreme Courtor any Court, refer the parties to arbitration https://hcservices.ecourts.gov.in/hcservices/ unless it finds that Prima facie no validarbitration agreement exists. 2. The application referred to in sub-section(1) shall not be entertained unless it isaccompanied by the original arbitration agreementor a duly certified copy thereof:[Provided that where the original arbitrationagreement or a certified copy thereof is notavailable with the party applying for reference toarbitration under sub-section (1), and the saidagreement or certified copy is retained by theother party to that agreement, then, the party soapplying shall file such application along with acopy of the arbitration agreement and a petitionpraying the Court to call upon the other partybefore that Court.](3)Notwithstanding that an application has beenmade under sub-Section (1) and that the issue ispending before the judicial authority, an arbitrationmay be commenced or continued and an arbitral awardmade.

If any petition is filed under Section 8 of the Arbitration and Conciliation Act, 1996, then it is for the Court to decide the said application before taking up thematter for trial on merits. In the case on hand, it is notstated that the defendants have filed any such applicationbefore the trial Court. Without filing any such application, it appears that they have filed the written statement and wentfor trial and suffered decree before the trial Court. Onlybefore the first Appellate Court, for the first time, itappears that they have raised this point. Hence, the firstappellate has held that the defendants before filing oftheir written statement should have filed petition to referthe parties for arbitration as contemplated under Section 8(1)of the said Act, 1996. The said finding is only in accordancewith law and the same cannot be set aside. Hence this CrossObjection has to be dismissed.

In the result, the Cross Objection is dismissed. Nocosts. Sd/- Assistant Registrar(CS IX) //True Copy// Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Principal District Judge, Pondicherry. 2. The I Additional District Munsif, PondicherryCopy to: The Section Officer, VR Section, High Court, MadrasCA(CO)sm:15.10.2018Cross. Objection. No.42 of 2002 inSA.No.2108 of 20012/2