S.K.U.A.S.T. and Others vs B.V. Sharma

K.S. Radhakrishnan, C.J.—The question that has come up for consideration in this case is whether the finding of the learned Single Judge,

that the court of Additional District Judge would be deemed to be a civil court of original jurisdiction within the purview of the definition of the term

'court' defined in Section 2(1)(c) of the J&K Arbitration and Conciliation Act, 1997 is correct or not?

Petitioner before the learned Single Judge filed an application u/s 9 of the J&K Arbitration and Conciliation Act in the court of Principal District

Judge, Jammu.

Principal District Judge expressed his inability to hear the case due to personal reasons and placed the matter before this Court for entrusting the

case to some other court of competent jurisdiction. The matter ultimately came up before the learned Single Judge. Objection was raised by

respondent therein contending that 2nd Additional District Judge has no jurisdiction to entertain a petition u/s 9 of the Act, since jurisdiction has

been specifically conferred only on the Principal court of original jurisdiction of the District or before the High Court. The learned Single Judge

elaborately considered the scope of Sections 2(1)(e) and 42 of the J&K Arbitration and Conciliation Act; Sections 16 and 40 of the Civil Courts

Act and Section 24 of the CPC and took the view that the term 'court' deserves to be liberally construed and would include the court of an

Additional District Judge also. Learned Judge held that Additional District Judge would be deemed to be a civil court of original jurisdiction within

the purview of the definition of the term 'court' as defined in Section 2(e) of the J&K Arbitration and Conciliation Act, 1997.

We heard elaborate arguments from Shri R. K. Gupta, learned Counsel appearing for the appellant as well as Shri P. N. Raina, counsel for the

other side.

Learned Counsel for the appellants referred to various provisions of the Arbitration Act, 1940, J&K Arbitration and Conciliation Act, 1997 and

Civil Courts A of etc. Heavy reliance was placed by the counsel on the Full Bench decision of the Bombay High Court in Fountain Head

Developers Vs. Mrs. Maria Arcangela Sequeira (since deceased through LRs.) and Others, . Learned Counsel also made available a copy of the

Arbitration and Conciliation (Amendment) Bill, 2003 and submitted that having noticed the lacunae in the Act, definition clause in the steps have

been taken to amend Section 2(1 )(e) of the Arbitration and Conciliation Act and other related provisions of the Act so to confer jurisdiction on

any court of coordinate jurisdiction like the Additional District Judge. Learned Counsel submitted that this would indicate that the intention of the

Legislature was to confer exclusive jurisdiction only on the principal District Judge and the High Court as per Sections 2(1)(e), Section 42 and

other related provisions.

Shri Raina, learned Counsel appearing for the other side, tried to distinguish the Full Bench decision of the Bombay High Court (supra) on facts.

Over and above, reliance was placed on the decision of the Karnataka High Court in Villiappa Software Technological Park (Pvt.) Ltd. v. C

Snnderam 2002(1) Arb. LR 530 (Karnataka) and the Division Bench judgment of the Karnataka High Court in Globe Congeneration Power

Limited Vs. Sri Hiranyakeshi Sahakari Sakkere Karkhane Niyamit, .

The definition clause u/s 2(1)(e) of the J&K Arbitration and Conciliation Act, 1997 is pari materia with the Central Arbitration and Conciliation

Act, 1996. For easy reference, we may extract Section 2(1)(e) of the Central Act hereunder:

'Court' means the principal civil court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary civil jurisdiction,

having jurisdiction to decide the questions forming the subject-matter of the reference if the same had been the subject-matter of a suit, but docs

not include any civil court of a grade inferior to such principal civil court, or any court of Small Causes.

Reference may also be made to Section 16 of the Civil Courts Act. The said provision is also extracted hereunder for easy reference:

Additional Judges

(1) When the business pending before any District judge requires the aid of any additional Judge or Judges for its speedy disposal, the Government

may on the recommendations of the High Court appoint such additional Judge or Judges as may be necessary.

(2) An Additional Judge so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to him, and in the

discharge of those functions he shall exercise the same powers as the District Judge.

Section 42 of the J&K Arbitration and Conciliation Act is also the relevant provision and the same is also extracted hereunder:

Jurisdiction

Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration

agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all

subsequent applications arising out of that agreement and the ""arbitral proceedings shall be made in that Court and in no other Court.

On a conjoint reading of Section 2(1)(e) read with Section 42 of the J&K Arbitration and Conciliation Act and Section 16 of the Civil Courts

Act, it is clear that the Additional District Judge who is exercising the same jurisdictional powers as that of the Principal Civil Court of original

jurisdiction does not stand excluded from the definition clause. The last limb of Section 2(1)(e), 'but does not include any civil court of a grade

inferior to such principal civil court, or any court of Small Causes' is supplementary to the first limb of the section which reads that 'court means the

principal civil court of original jurisdiction in a District, and includes the High Court in exercise of its ordinary civil jurisdiction, having jurisdiction to

decide the questions forming the subject-matter of the reference if the same had been the subject-matter of the suit'. The intention of the Legislature

is not to exclude the Additional District Judge who is exercising the same judicial powers as that of the Principal civil court of original jurisdiction in

a District. The court which has been excluded from the purview of Section 2(1)(e) is the civil court of a grade inferior to the Principal civil court, or

any court of Small Causes. Additional District Judge who is exercising jurisdictional function is not inferior in grade to that of the Principal civil

court of original jurisdiction. The words ""does not include any civil court or a grade inferior to Principal civil court"" means statutorily incompetent to

hold or exercise equal powers to that of Additional District Judge. Additional District Judge is not a statutorily incompetent or inferior to the

Principal District Judge but on the other hand, they exercise equal judicial powers. Only, if the Court is judicially inferior that is to a Court over

which the Court has appellate jurisdiction, then only it can be said that the Additional District Judge is said to be a grade inferior to the Principal

District Judge.

The word 'Court' within the meaning of Section 2(1)(e) means a court which is competent under law to decide the question forming the

subject-matter of arbitration. Admittedly, no appeal is provided against the judgment of Additional District to the Principal District Judge of the

District. When we read the provisions of the Civil Courts Act, it becomes clear that there is no distinction between the Principal civil court of

original jurisdiction, i.e., the Principal District Judge, and Additional District Judge. Both the Principal civil court of original jurisdiction as well as

the Additional District Judge have the jurisdiction to entertain, try and dispose of all suits and all such proceedings of civil nature which come under

their jurisdiction. By virtue of the provisions of Civil Courts Act, the Principal civil court of original jurisdiction can distribute and allot cases filed

before him to Additional District Judges in the District which is purely an administrative matter. That does not mean that the Additional District

Judges would become a grade inferior to the Principal civil court of original jurisdiction

In our view, the Full Bench decision of the Bombay High Court in M/s. Fotthtain Head Developers v. Maria Arcangela Sequeira (FB) (supra)

is of no assistance to the appellant. That was a case where the Additional District Judge has the jurisdiction to try such suits and to dispose of such

applications or references as are referred to it by the District Judge and the decrees and orders passed by the Additional District Judge in such

cases are appealable before the District Judge or the High Court according to the value of the subject matter. The Additional District Judge is,

therefore, statutorily and judicially inferior to the Principal District Judge of original jurisdiction. So far as the present case is concerned, the

jurisdiction exercised by the Principal District Judge as well as the Additional District Judge here is the same and decrees and orders passed by the

Additional District Judge are not appealable before the Principal District Judge.

We may, in this connection, refer to the decision of the Apex Court in Pandey and Co. Builders Pvt. Ltd. Vs. State of Bihar and Another, ,

wherein the Apex Court while examining the scope of Section 37(2)(a) and 2(1)(e), 16 of the Arbitration and Conciliation Act, 1996 noticed that

the Patna High Court does not exercise any original civil jurisdiction. Apex Court held that the definition of 'Court' as referred to in Section 2(1)(e),

means the principal civil court of original jurisdiction in a District and includes the High Court which exercises the original civil jurisdiction.

Further, it was pointed out that if a High Court does not exercise the original civil jurisdiction, it would not be a court within the meaning of the

said provision.

On going through the Full Bench decision of the Bombay High Court in Fountain Head Developers v. Maria Arcangela Sequeira (FB) (supra)

and that of the Karnataka High Court in Villiappa Software Technological Park (Put.) Ltd. v. C. Sunderam, and Globe Cogencration Power Ltd.

v. Sri Hiranyakeshi Sahakari (supra) and the Andhra Pradesh High Court decision in Globsyn Technologies Ltd. Vs. Eskaaycee Infosys, , we are

of the considered view that an Additional District Judge would also fall within the definition of 'Court' u/s 2(1)(e) of the Jammu and Kashmir

Arbitration and Conciliation Act, 1997.

We, therefore, answer the question accordingly and find no error in the orders passed by the learned Single Judge.

Appeal, therefore, lacks merit and is dismissed.