B V SHARMA Vs. SHER-E-KASHMIR UNIVERSITY OF AGRICULTURE SCIENCES AND TECHNOLOGY
LAWS(J&K)-2006-11-40
HIGH COURT OF JAMMU AND KASHMIR
Decided on November 29,2006

B V Sharma Appellant
VERSUS
Sher -E -Kashmir University Of Agriculture Sciences And Technology Respondents

JUDGEMENT

- (1.) THE non -applicant Sh. B.V. Sharma, filed a petition under section 9 of the Jammu and Kashmir Arbitration and Conciliation Act 1997 (hereinafter referred to as Rs.1997 Act) against the applicants herein in the Court of learned Principal District Judge, Jammu. The learned District Judge while expressing his inability to hear the case due to his acquaintance with the non -applicant made a reference to this Court for entrusting the matter to some other Court of competent jurisdiction. This Court by order dated 25 -9 -2006 passed in Arbitration Application No. 31/2006 on the joint request of the counsel for the parties transferred the petition filed under section 9 of the said Act from the Court of District Judge to the Court of learned 2nd Additional District Judge, Jammu.
(2.) DESPITE the fact that the case was transferred to the Court of learned 2nd additional District Judge on the joint request of the parties, the applicants who were respondents in the said matter have filed the instant application for seeking modification of the order dated 25 -9 -06 on the plea that Court of 2nd additional District Judge lacks the inherent jurisdiction to try that petition.
(3.) SECTION 9 of 1997 Act provides that a party may before or during arbitral proceedings or at time after the making the arbitral award but before it becomes decree of the court, apply to a "Court" for any interim measures etc. specified in the section. The Section 2 (e) of the Act defines the term " Court" in the following manner: - " 2. Definitions: (1) In this part unless the context otherwise requires - X x x x x x x x x x x (e) "Court" means the Principal Court of original jurisdiction in a district and includes the High Court in exercise of its ordinary original Civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court or any Court of Causes." The question arising for consideration is whether the Court of Additional District Judge is the Court within the meaning of section 2 (e) of the Act. The contention of Mr. Gupta, learned counsel for the applicant is that the Court of Additional District Judge being not a principal Court of original jurisdiction in a District does not fall within the term "Court" as defined in section 2 (e) of the Act. According to him as per the definition of the term "Court" only two Courts i.e. the Principal Court of Civil Original jurisdiction and the High Court in exercise of its ordinary original jurisdiction come within the definition of term "Court", which alone can have the jurisdiction to hear a petition under section 9 or any other petition filed under other sections of part -I of the Act. He submits that once a party chooses a forum out of the said two Courts by filing a petition only that forum alone in which such petition is filed possesses the jurisdiction and this is so because under section 42 of the Act all subsequent arbitration applications can be filed only before that forum to the exclusion of all other Courts. To the contrary the contention of Mr. Raina, learnedcounsel for the non -applicant is that if the Principal District Judge was dis -abled to hear the petition he himself was competent to transfer the case to the Court of Additional District Judge in exercise of his ordinary Civil jurisdiction and this apart simply because the High Court has been included in the definition of the term "Court" as defined in section 2 (e) of the Act its ordinary civil jurisdiction for transferring a case cannot be said to have been lost. He submits that the bar of filing subsequent applications envisaged by section 42 of the Act can operate only after the first Court in which the first application is filed proceeds to hear the matter on merits. If a Court entertains the application and transfers it to some other Court in exercise of its ordinary civil jurisdiction in that event all the subsequent applications in terms of section 42 of the Act would lie only in that Court. He further submits that the Jammu and Kashmir Arbitration and Conciliation Act 1997 has not created any special Court, but it refers only to the Courts which stand already created under different statutes. He argues that the Court of Additional District Judge though possesses no independent original jurisdiction yet it exercises the original jurisdiction of a principal Court of original jurisdiction in respect of those cases which come to be assigned or transferred to it by the Principal Civil Court of original jurisdiction or the High Court as the case may be and therefore, the Court of Additional District Judge for the purposes of 1997 Act is to be deemed to be a Court within the meaning of section 2 (e) of the Act. On a plain reading of the definition of the term "Court" as defined in section 2 (e) of 1997 Act, it is manifest that an arbitration petition can be filed either before the Principal Civil Court of original jurisdiction of the District or the High Court in exercise of its ordinary civil jurisdiction as the case may be having jurisdiction to decide the question forming the subject matter of the arbitration, if same had been subject matter of a suit. Section only excludes two types of Courts i.e. Civil Court inferior in grade to the Principal Court of civil original jurisdiction and the Courts of Small Causes from the definition of the term "Court". It would be significant to note that section 2 (e) or any other provision of 1997 Act does not provide for creation of any special Courts for the trial and disposal of the arbitration petitions to be filed under Part -I of the Act. It only refers to the High Court in exercise of ordinary original civil jurisdiction and Principal Civil Court of original jurisdiction.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.