I.N.C.A. Builders vs I.A.A.I.
1998 Latest Caselaw 565 Del

JUDGMENT

S.K. Mahajan, J.

1. The award made and published by the Arbitrator in the matter of certain disputes which had arisen between the parties was filed in this Court and objections thereto were filed by both the parties under Sections 30 and 33 of the Arbitration Act. On the said objections, issues were framed by the Court and the evidence was directed to be led by means of affidavits. Both the parties filed their affidavits by way of evidence in support of their contentions and the matter was adjourned for hearing arguments.

2. On 11.1.1996 when the matter came up before the Court no one had appeared on behalf of the respondent and the Court proceeded to decide the objections filed by both the parties on merits. While the objections filed by the petitioner were dismissed as withdrawn, the objections filed by the respondent were dismissed by the Court by a detailed judgment on merits and the award made and published by the arbitrator was made a rule of the court and decree in terms of the award was passed by this Court. The respondent was also held liable to pay interest @ 12% per annum on the awarded amount from the date of the award till realisation.

3. On 12.2.1996 an application was filed by the respondent under Order 9 Rule 13 CPC for setting aside the decree passed on 11.1.1996 inter alia on the grounds that the counsel for the respondent could not appear before the court on 11.1.1996 because he was held up in United States of America where he had gone on 17.12.1995; he was scheduled to return to Delhi on 8.1.1996 but due to severe climatic condition the airports were closed, the flights suspended and re-scheduled and he, therefore, could reach Delhi only on 16.1.1996. It was further stated that after he had returned to India he filed an application for inspection of the court file as he had not appeared in this Court on 11.1.1996 and he came to know that this Court had dismissed the objections and the award had been made a rule of the Court. It is, therefore, averred in the application that non-appearance of the counsel for the respondent was neither deliberate nor intentional but was because of unforeseen circumstances beyond his control and he wanted this Court to set aside the order dated 11.1.1996 and restore the suit at the stage it was on the said date.

4. Reply to the application has not been filed by the petitioner and the only objection taken is that the objections having been dismissed on merits and the award having been made a rule of the court and decree in terms thereof having been passed, the application under Order 9 Rule 13 CPC was not maintainable and was liable to be dismissed on this short ground alone.

5. Mr. Sachdeva, appearing on behalf of the petitioner has placed reliance upon a judgment Hoechst Aktiengesellschaft Vs. M/s B.S.Chemical Industries (Regd). AIR 1979 NOC 107 (Delhi). He submits that in view of the pronouncement of this Court that the court having decided the case under Order 17 Rule 2 CPC on merits, the application under Order 9 Rule 13 CPC does not lie because the decision was on merits as if the party was present.

6. Mr. Wadhwani, however appearing on behalf of the respondent submits that Rule 2 of Order 17 CPC gives arbitrary powers to the court and is therefore, violative of Article 14 of the Constitution of India. He relies upon the judgments reported as Suraj Mall Mohta & Co., Vs. A.V. Vishvanatha Sastri & Another , Shree Meenakshi Mills Limited & Others Versus A.V. Vishvanatha Sastri & Another, . Abdul Aziz Vs. State of Maharashtra. , Northern India Caterers (Pvt.) Limited & Another Vs. State of Punjab & Another, , and Savithri Amma Seethamma Vs. Aratha Karathy & Others, .

7. In Shree Meenakshi Mills Limited & Others Vs. A.V. Vishvanatha Sastri & Another. (supra) it was held that Article 14 guarantees to all persons the right of equality before the law and equal protection of the law within the territory of India. This Article not only guarantees equal protection as regards substantive laws but procedural laws also come within its ambit. The implication of the Article is that all litigants similarly situated are entitled to avail themselves of the same procedural rights for relief, and for defense with like protection and without discrimination. Taking support from this judgment, it is contended by Mr. Wadhwani that Rule 2 of Order 17 CPC gives unfettered powers to the court to decide in any of the three manners mentioned in Rule 2 and, therefore, the Rule is wholly arbitrary. The other judgments cited by Mr. Wadhwani are also to the same effect.

8. In Northern India Caterers (Private Limited) & Another Vs. State of Punjab & Another. (supra) the Supreme Court was dealing with the provisions of Punjab Public Premises and Land (Eviction and Rent Recovery) Act. The Objects and Reasons of the Punjab Act show that the legislature intended to provide an additional remedy to the Government, a remedy which it thought was speedier than the one by way of a suit under the ordinary law of eviction. It was in this context that the Supreme Court held that there was nothing in the Act to warrant the conclusion that it impliedly took away the right of suit by Government or that, therefore, it was substitutive and not supplemental. Nor was it possible to say that the co-existence of the two remedies would cause such inconvenience or absurdity that the Court would be compelled to infer that the enactment of the Act resulted in an implied deprivation of the Government's right to sue in the ordinary courts. The Supreme Court, therefore, held the provisions of the Punjab Act to be void on the ground that the same were violative of Article 14 of the Constitution as it provided two alternative remedies to the Government and left it to the unguided discretion of the Collector to resort to one or the other and to pick and choose some of those in occupation of public premises for the application of more drastic procedure under Section 5 of the Act leaving itself to the charge of discrimination.

9. In my opinion, none of the aforesaid judgments is of any assistance to Mr. Wadhwani. In the Punjab Act, an additional remedy was provided to the Government and it was left for the Government to decide as to whether it wanted to avail the remedy by way of suit under the ordinary law or it wanted to avail of the forum provided by the Punjab Public Premises and Land (Eviction and Rent Recovery) Act. It was in this context that the Supreme Court observed that when unguided discretion has been conferred upon the Collector to decide a forum the law leaves itself open to the charge of discrimination and for that reason the Punjab Public Premises and Land (Eviction and Rent Recovery) Act was held to be violative of Article 14 of the Constitution of India.

10. I am unable to reconcile myself with the arguments advanced by Mr. Wadhwani. Under Order 17 Rule 2 CPC it has been left to the discretion of the Court to decide a suit in any of the three modes provided therein. The Court has discretion to proceed under Order 9 of the Code or adjourn the hearing to a subsequent date or to proceed to decide the matter on merits. The matter having been left to the discretion of the court it cannot be said that the powers which have been given are wholly arbitrary or unfettered or that the same are ultra vires the provisions of Article 14 of the Constitution of India. In this case, the discretion is not with any of the parties to ask the court to decide in a particular way but it is the court who is to decide the suit in any of the three modes provided in Rule 2 of Order 17. No additional remedy has been provided in the Code to any party to the suit which could render itself open to the charge of discrimination. If the court after seeing the conduct of the parties and the proceedings which have been held before it earlier proceed to decide the suit on merits, in my view, there cannot be any objection to the same and it cannot be said that the powers given to the court are arbitrary or that the Court could not exercise the discretion so given to it by the legislature. The guarantee of equality before law and equal protection under Article 14 is that there should be no discrimination between one person and another if as regards the subject matter of legislation, their position is the same. In the present case, under Order 17 Rule 2 CPC no additional remedy having been provided to any one of the two parties and the court having been given the discretion to proceed with the matter in any of the three modes provide in the Rule against any one of the two parties, in my opinion, no case whatsoever of discrimination has been made out so as to hold that Rule 2 of Order 17 is violative of Article 14 of the Constitution of India.

11. Mr. Wadhwani also places reliance upon Order 41 Rule 21 CPC in support of his contention that an opportunity of re-hearing should have been given to the respondent. It is submitted by him that while Order 41 Rule 21 CPC specifically provides that in case the Court has proceeded to decide an appeal and has given a judgment in the absence of a party, the party against whom the judgment has been given has a right to move an application for re-hearing of the same. It is, therefore, submitted by him that the court should exercise powers under Section 151 CPC analogous to the powers which have been given under Order 41 Rule 21 CPC. In my opinion, the arguments are wholly fallacious. Rule 21 specifically provides a remedy to a litigant against whom a judgment has been given under Order 41. When there is a specific provision in the Statute, in my opinion, the provisions of Section 151 CPC cannot be made applicable.

12. It is then submitted by Mr. Wadhwani that in this case the evidence was not complete and, therefore, the court could not proceed to decide the matter. It is submitted by him that an opportunity should have been given to him to file reply to the affidavits which have been filed by the petitioner. Explanation to Rule 2 of Order 17 provides that where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any date to which the hearing of the suit is adjourned the Court may, in its discretion, proceed with the case as if such party were present. In the present case, it is not even the case of Mr. Wadhwani that there was no evidence before the court to enable it to proceed with the decision on merits. The Explanation clearly states that even in case substantial portion of the evidence of the party is before the court, the court can proceed with the case as if such party was present. In the present case, admittedly both the parties had led evidence by means of affidavits and the Court having exercised its jurisdiction to decide the case on merits on the basis of the evidence which was before it, in my opinion, there is no breach of any of the provisions of law. I am fully in agreement with the judgment reported as Hoechst Aktiengesellschaft Vs. M/s. B.S. Chemical Industries (Regd), (supra) and I do not find any reason to differ with the same.

13. In view of the above discussion, the suit having been decided on merits, the application under Order 9 Rule 13 CPC is not maintainable and is accordingly dismissed. In the peculiar facts and circumstances of the case, the parties are left to bear their own costs.

I.A. No. 4472/97

14. In view of order passed on I.A.No. 1557/96 this application has become infructuous and the same is accordingly dismissed.