A.D. Koshal, J. - (1.) THIS second appeal has arisen in the following circumstances. Messrs Swadeshi Karyala, Ludhiana (hereinafter referred to as the Karyala submitted to the erstwhile State known as Pepsu a tender against which the said State placed with the Karyala an order for the supply of certain goods to the Inspector -General of Police, Patiala within two months of the date of the order which was conveyed under a letter dated the 20th of September, 1955. Although the order was placed within the period up to the end of which the tender was operative, the Karyala expressed its inability to execute the order on the plea that it had already sold out its stocks. The supply of the goods was, however, urgently required by the Government and they invited fresh tenders, one of which was accepted at rates higher than those quoted by the Karyala and an amount of Rs. 2,103.75 P. being the excess paid by the State in consequence was claimed by it from the Karyala according to the terms on which the tenders had originally been invited and submitted. The Karyala considered the Government's claim to be highly excessive and in its letter dated the 7th of December, 1959, requested the Government of the State of Punjab into which the State of Pepsu had by then merged that the case be referred to the arbitration of any officer appointed by that Government under clause 18 of the contract." The Punjab Government appointed the District Industries Officer, Patiala, as the arbitrator who ultimately gave an award dated the 24th of February, 1S66, burdening the Karyala with the entire amount claimed by the Government. The award was filed in Court by the arbitrator but was objected to by the Karyala on various grounds including misconduct and misinterpretation of evidence on the part of the arbitrator. On behalf of the Punjab State it was pleaded that the sward was legal and binding on the Karyala and that is its objections were liable to be turned down. The trial Court framed the following issues on the pleadings of the parties : 1. Whether the objection petition is time -barred ? O.P.D.
(2.) WHETHER the award is liable to be set aside on the grounds mentioned in paragraph 3 of the objection petition ? O.P.A. Relief. Issue No. 1 was not pressed before the learned Subordinate Judge who tried the case and was decided against the Punjab State. The finding on issue No. 2, however, went against the Karlaya with the result that the objections put forward by it were dismissed and the award was made a rule of the Court. Accordingly a decree for the recovery of Rs. 2,103.75 P. was passed against the Karyala but the parties were left to bear their own costs. The matter was reagitated by the Karyala in an appeal which was decided by Shri Shamshad Ali Khan, Additional District Judge, on the 21st of June, 1967, against which the present appeal has been instituted by the Punjab Government. It was contended before him that there was no written agreement between the parties to submit their differences to arbitration and that the award was, therefore, without jurisdiction. This contention prevailed with the learned Additional District Judge who observed that on going through the arbitration file which was the only material produced by the parties before the learned Subordinate Judge he was not able to lay his hands, on any written agreement for settlement of the disputes between the parties to arbitration. The definition of "arbitration agreement" appearing in clause (a) of section 2 of the Arbitration Act was taken note of by him and he held that the Act insisted on such an agreement to be in writing. He concluded that in the absence of any such agreement no award could be made by the arbitrator. As the case, according to him, was not properly tried by the learned Subordinate Judge but had been decided in a perfunctory manner he accepted the appeal set aside the Judgment and decree of the trial Court and remanded the case to it for redecision of the objections after "allowing the parties to produce their evidence in support of the issues framed in the case". Costs of the appeal were directed to be costs in the cause. 2. Shri Ram Karan Das Bhandari learned counsel for the Karlaya, which is the respondent before me, has raised a preliminary objection that the appeal is incompetent in view of the provisions of section 39 of the Arbitration Act which are to the following effect: 39. (1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order: An order - (1) superseding an arbitration; (ii) on an award stated in the form of a special case; (iii) modifying or correcting an award, (iv) filing or refusing to file an arbitration agreement; (v) staying or refusing to stay legal proceedings where there is an arbitration agreement; (vi) setting aside or refusing to set aside an award; Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court, (2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court. Shri Bhandari has urged that once there is in existence an order which can be said to have been passed "under this Act" there is no right of appeal at all there against except in the six cases mentioned in the six clauses which form part of sub -section (1) of section 39, that in those six cases also there is only on : right of appeal and that a second (or further) appeal does not lie. With this contention I find myself fully in agreement. Under sub -section (1) of section 39 the first question to be decided would be whether there was an order under the Act. The decision of that question in the present case presents no difficulty as it is conceded by Shri R. K. Chhibbar appearing on behalf of the appellant -State that the order passed by the learned Subordinate Judge refusing to set aside the award and passing a decree on the basis thereof falls within clause (vi) of sub -section (1) of section 39. This means that against the order of the learned Subordinate Judge, the aggrieved party had a right of appeal which right was exercised by the Karlaya. In view of the provisions of sub -section (2) of section 39, there is no further appeal, whether the order passed in the first appeal is right or wrong. This is what section 39 lays down in unambiguous terms. Reference in this connection may be trade to the Union of India v. The Mohindra Supply Co. : A.I.R. 1962 S.C. 256 in which it was held that where a Single Judge of the Punjab High Court disposed of an appeal under section 39(1) of the Arbitration Act there was no further right of appeal under clause 10 of the Letters Patent of the High Court against the order of the Single Judge. The words "second appeal" occurring in section 39(2) of the Arbitration Act were interpreted to mean a further appeal and not a second appeal as envisaged by section 100 of the Code of Civil Procedure. 3. In reply to the preliminary objection Shri Chhibbar also urged that it was the order of the first appellate Court, the nature of which must determine as to whether an appeal from it would lie or not under the provisions of sub -section (1) of section 39. According to him, an order would be one "passed under this Act", even if it is passed in an appeal from an original order, so long as it could be said to have been covered by one of the provisions of sections 1 to 38 of the Act. He forgets, however that there is no appellate order envisaged by any of those sections and all the orders covered by them must be such as are passed by a Court acting in the exercise of its original jurisdiction. The contention is, therefore, without substance and is repelled.
(3.) SHRI Chhibbar then contended that even if no appeal lay, the appeal filed on behalf of the Punjab State should be treated as a petition for revision under section 115 of the Code of Civil Procedure and heard on merits. To this submission Shri Bhandari had no objection except that the appeal could be heard as a revision only if the lower appellate Court could be held to have acted in one of the manners covered by clauses (a) (b) and (c) of the said section 115. Shri Chhibbar agreed that an appellate Court's order could be revised only in the cases envisaged in that section. He urged however, that by holding that there was no written agreement between the parties to refer their disputes to arbitration the lower appellate Court had exercised a jurisdiction not vested in it by law inasmuch as the letter dated the 7th of December, 1959, requesting the Government to submit the case for arbitration to any officer appointed by it, when coupled with the acceptance of the request by the Government, amounted to a written agreement. He has cited certain authorities in order to show that the letter would, in the circumstances, be covered by the definition of "arbitration agreement" occurring in clause (a) of section 2 of the Arbitration Act. Whether that is so or not, however, I do not see how the case would fall within the ambit of section 115 of the Code of Civil Procedure. As laid down in Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee : A.I.R. 1964 S.C. 1336 section 115 of the Code of Civil Procedure is not directed against conclusions of law or fact in which questions of jurisdiction are not involved. It has been often pointed out that when a Court decides a question of law erroneously, it cannot be said that it does so without jurisdiction. A question of law decided erroneously could be said to have been decided without jurisdiction only if it involved a question of jurisdiction and not otherwise. The observation of the lower appellate Court that it did not find any written agreement between the parties to refer their dispute to the arbitration on the record of proceedings prepared by the arbitrator can certainly not be construed to mean that the lower appellate Court exercised a jurisdiction not vested in it. In fact, that Court decided nothing except that the case had not been conducted properly by the trial Court. All questions of law including the one whether a written agreement between the parties to refer their disputes to arbitration did or did not exist, were left open and the trial Court was directed merely to decide the case afresh in its entirety. There was thus not even an erroneous finding of law arrived at by the lower appellate Court; much less can it be said to have exercised a jurisdiction not vested in it by law. In this view of the matter I repel Shri Chhibbar's contortion. The necessity for deciding as to whether or not there is in existence an "arbitration agreement" between the parties does call for a decision at the hands of this Court at this stage. On the other hand, it is a proper one for determination by the trial Court.;