- (1.) This revision petition has been preferred before this Court under Section 115 of the Code of Civil Procedure against the order dated 29th May, 1995, passed by the Addl. District Judge, Karauli in Civil Misc. Petition No. 5/95, whereby the learned trial Court had allowed the application moved by the claimant-respondent under Section 8(2) read with Sections 20 and 33 of the Arbitration Act, 1940 (hereinafter to be referred as 'the Act') The brief facts giving rise to the filing of the present revision petition are that an agreement was duly executed between the parties for execution of certain work as per the agreement. Soon after the execution of the agreement certain disputes arose between the parties and for resolving the said disputes as per Clause 23 of the agreement, the same were required to be referred to the Arbitrator to be appointed by the State Government not below the rank of Superintending Engineer. It has been further contended in the petition that notwithstanding the aforesaid Clause 23 of the agreement, since no Arbitrator was appointed by the respondents, the petitioner was left with no remedy except to move the aforesaid application for appointment of the Arbitrator praying therein that the arbitration agreement be filed in the Court and the Arbitrator be appointed from amongst the persons named in the prayer clause.
(2.) The aforesaid application was contested before the learned trial Court. The petitioner-State Government had raised certain preliminary objections regarding the maintainability of the application itself contending inter alia that the application under Sections 8 and 20 of the Act cannot be moved simultaneously and, therefore, the application itself was not maintainable and deserved dismissal from the trial Court. Apart from that it was also contended that the said application was also not maintainable under Section 33 of the Act. The non-petitioner did not file any rejoinder to the said reply filed by the petitioner and as such the matter was heard on merits and the learned trial Court thereafter allowed the application of the non-petitioner treating it to be the application under Section 8 of the Act and in pursuance of the prayer made in the application, appointed one Shri J. M. Gupta, retired Chief Engineer to act as an Arbitrator with the direction to pass award within a period of four months and file the same before the trial Court and the matter was fixed for compliance of the order on 5-10-95.
(3.) It is in the backdrop of the aforesaid circumstances that the present revision petition has been filed in this Court wherein the petitioner has assailed the impugned order dated 29-5-95 on the grounds inter alia that the impugned order has not only been passed by the trial Court in exercise of its jurisdiction not vested in it under the Act and the same is erroneous and illegal inasmuch as the trial Court committed material irregularity without knowing the scope and procedure to be followed for deciding the application moved by the non-petitioner. It has been further contended by the learned counsel for the petitioner that the aforesaid application was not amended by the non-petitioner despite objections having been raised regarding its maintainability and to the utter surprise of the petitioner without there bring an application regarding deletion of Sections 20 and 33 of the Act, the learned trial Court treated the application as having been moved under Section 8 of the Act and thereby it failed to follow the procedure as has been provided under the provisions of the Act as well as the CPC and thus the order passed by the Court below dated 29-5-95 is illegal being not in accordance with law.;