Muni Lal Verma, J. - (1.) THE circumstances, giving rise to this appeal, may be briefly stated as under;
(2.) M /s. Ramji Lal Basant Lal, respondent herein, moved an application under Section 20 of the Indian Arbitration Act (hereinafter called the Act in the Court of the Senior Subordinate Judge, Patiala, for appointment of an Arbitrator under the arbitration clause and to (sic) the matter for adjudication to him. The respondent is a partnership firm. Its allegations were that the appellant invited tenders to purchase topper scrap, and it submitted tender for the purchase of 47 metric tonnes of copper scrap and duly pledged a deposit at call receipt for Rs. 13,500/ - issued by the Central Bank of India, Patiala, with the Assistant Account Officer of the appellant by way of earnest money. The said tender was accepted and a letter, duly signed by the Chief Purchase Officer of the appellant, had been issued to it, and the earnest money was retained by the appellant. The appellant, however, did not issue the formal sale order of the copper scrap to the respondent and was out to deliver the same to someone else. Thus, according to the respondent, the appellant committed breach of the agreement contained in the tender submitted by it and which had been accepted by the appellant. The said agreement (i.e. tender accepted by the appellant) contained a submission clause at No. 10 according to which the dispute, that had arisen between the parties, was to be referred for decision to an Arbitrator. So, the respondent claimed that an Arbitrator for adjudication of the said dispute between the the parties be appointed and the matter be referred to him. Along with the application moved under section 20 of the Act, the respondent made application under section 41 of the Act read with Order XXXIX, rules 1 and 2, Civil Procedure Code, for ad interim injunction restraining the appellant from selling the copper scrap for which its tender had been accepted till the decision of the application moved under section 20 of the Act. The learned Senior Subordinate Judge, allowing the application moved under section 41 of the Act, granted ad interim injunction restraining the appellant from selling the copper scrap, weighing 47 metric tonnes, to any person other than the respondent till the decision of the application moved under section 20 of the Act. Aggrieved by the said order, the appellant appealed on November 5, 1973, in the Court of the District Judge, Patiala. The said appeal was returned to it on February 12, 197 -4, on the ground that the same was beyond the pecuniary jurisdiction of the said Court. So, the appellant file appeal in this Court on April 15, 1974. Shri B.S. Bindra, Learned Counsel for the respondent, raised two preliminary objections, firstly, that the appeal was not competent and, secondly, that it was barred by time. Right to appeal is given by statute. There was no suit before the trial Court and, as such, provisions contained in rule 1 of Order XXXIX Civil Procedure Code, ware not applicable. It were Arbitration proceedings that were pending before the Court and as such, the ad interim injunction was granted by it (the Court) under section 41 of the Act. Section 39 of the Act enumerates the orders passed under the Act against which appeals can be preferred, and it contains specifically that appeals would he against those orders and from no other. The list of appealable orders, given under section 39 of the Act, does not contain the order which is passed under section 41 of the Act. Therefore, there can be no manner of doubt that the impugned order, having been passed under section 41 of the Act, was not appealable and, as such, neither the appeal carried to the District Court, Patiala, nor the appeal filed in this Court is competent.
(3.) PLACED in that situation, Shri Rattan Singh, Learned Counsel for the appellant, urged that tins appeal might be treated as revision petition. There can be no quarrel with the proposition of law that an appeal can be treated as revision petition and the impugned order could be subject of the revision petition. The appellant, is, however, faced with the formidable difficulty of bar of limitation. The period prescribed by Limitation Act for revision or an appeal to the High Court is 90 days and the time began to run from the dale of the impugned order, i.e., 26th September, 1973. Making allowance for the days spent in obtaining copy of the impugned order i.e. from 28th September, 1973 when the application for copy was made, to 9th October, 1973 when the copy was prepared and had been delivered, the appeal or revision could be preferred within time to this Court on or before 6th January, 1974, But it (the appeal) was filed in this Court on 13th April, 1974. Therefore, it (whether it may be counted as an appeal or revision petition) was clearly barred by time on that date. Shri Rattan Singh, Learned Counsel for the appellant, urged in an application which had also been moved, that time spent in prosecuting the appeal in the Court of District Judge, Patiala, i.e., from 5th November, 1973 to 12th February, 1974 should be excluded under section 14 of the Limitation Act, I have not been able to agree with him. In Older to attract section 14 of the Limitation Act, it must be shown that the appellant had prosecuted the appeal in the Court of the District Judge, Patiala, in good faith and with due diligence. 'Due diligence' would mean such care and prudence as is usually exercised by persons of common or average care and prudence. According to clause (h) of section 2 of the Limitation Act, nothing shall be deemed to be done in good faith which is not done with due care and attention. It was clearly recorded in the impugned order that the respondent had furnished a deposit at call receipt for Rs. 13,500/ - issued by the Central Bank of India, Patiala, by way of earnest money to the appellant. Therefore, the appellant could not be in any doubt that the value of the subject matter in dispute was admittedly more than Rs. 13,500/ -. As such, the appeal against the impugned order could not lie in the Court of District Judge, Patiala, the jurisdictional value of the subject matter being more than Rs. 10,000/ -. It was mentioned in paragraph 2 of the impugned order that the application for ad interim injunction had been moved under sect on 41 of the Act read with order XXXIX, rules I and 2 of Civil Procedure Code. Further, it is clear from paragraph 5 of the impugned order, that the Learned Counsel had raised objection before the trial Court that the application for ad interim injunction moved under section 41 of the Act was not maintainable. It was, therefore, manifest from the impugned order that the respondent had made application for ad interim injunction under section 41 of the Act and the impugned order had been passed under the provisions of the said Section 41. The Learned Counsel for the appellant, by a mere reference to section 39 of the Act, could know that the impugned order was not appealable. So, it cannot be maintained that the appellant (Punjab State Electricity Board) or its counsel had acted with due care and attention much less with prudence which was expected of them in filing the appeal against the impugned order in the Court of the District Judge, Patiala. Want of due care and attention means negligence, and whatever has been done with negligence cannot be said to have been done with due diligence or in good faith. I, therefore, in the circumstances of the case, and that the appellant and his counsel -showed want of due diligence and good faith in filing and prosecuting the appeal in the Court of District Judge. It is in that view of the matter that the time spent by the appellant in prosecuting the appeal in the Court of District judge cannot be excluded under section 14 of the Limitation Act. It may be noted that section 14 is different from section 5 of the Limitation Act. Section 14 is for exclusion of period while section 5 of the Limitation Act is for condonation of delay. Therefore, application moved by the appellant under section 14 cannot be treated as one under section 5 of the Limitation Act and no application under the said section 5 of the Limitation Act had been made. Further, as already remarked above, when in the circumstances of the case, the appellant or his counsel had not acted with due care and attention in filing and prosecuting the appeal in the Court of District Judge, Patiala, it cannot be maintained that there was any sufficient cause for condonation of delay in filing the revision in this Court, Thus it follows from the discussion above that there is force in both the preliminary objections raised by Shri B.S. Bindra and the same must prevail. Coming to the merits of the case, it cannot be said that the trial Court while passing the order, had failed to exercise the jurisdiction vested in it or it had exercised jurisdiction not vested in it. So, the impugned order can, at the most, be challenged under clause (c) of section 115 of the Civil Procedure Code The wards "acting illegally" would mean acting in breach of some provisions of law and the words acting with "material irregularity" would mean committing some error of procedure and in the course of proceedings, which is material in the sense that it may have affected the ultimate decision. Therefore, it is only when a Court decided a case perversely that it can be said to act illegally or with material irregularity in the exercise of its jurisdiction and the other errors of questions of law or procedure are outside the scope of clause (c) of section 115 of the Civil Procedure Code. Where a lower Court passes an order in exercise of its jurisdiction, this Court wilt not interfere with it in revision. The grant of ad -interim injunction was within the discretion of the learned Senior Sub -Judge who had granted it. It has not been shown that the ad interim injunction had been granted by the said Court against the principles governing the same. As such; it cannot be said that, that the Court below, while granting the ad interim injunction, had acted illegally or with material irregularity in exercise of its jurisdiction. For the reasons given above, the case may be viewed from any angle, this appeal, even if it is treated as revision is not sustainable and fails. So, I dismiss the appeal with no order as to costs.;