merely because he had failed to exercise his right, to appoint an arbitrator, earlier. = The respondent is entitled, in terms of Clause 22-A(iii) of the agreement, to appoint a substitute arbitrator even if they had failed to appoint an arbitrator earlier. On their exercising their right to appoint a substitute arbitrator, no other person can be appointed as an arbitrator, in substitution, by the High Court. It is only if they had failed to appoint a substitute arbitrator, despite being requested to do so by the applicant, would the applicant then have been entitled to invoke the jurisdiction of the High Court, under Section 11(6) of the Act, requesting it to take the necessary measure. As the respondent has appointed Justice C.V. Ramulu as their substitute arbitrator, even before they were called upon by the applicant to do so, the applicant is not entitled to invoke the jurisdiction of the High Court, under Section 11(6) of the Act, seeking appointment of a substitute arbitrator. The application, as filed, is therefore not maintainable.

THE HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN               

Arbitration Application No.55 of 2015

27-12-2017


Gamesa Wind Turbines Pvt. Ltd, Chennai..Applicant 

Mytrah Energy (India) Ltd.. Respondent

!Counsel for Applicant: Sri B.Chandrasen Reddy

Counsel for respondent: Sri Vedula Venkataramana, Learned
                         Senior Counsel for Sri Girish
                         Govardhan Deshmukh, Learned
                         Counsel.

<GIST: 

>HEAD NOTE:   

? Citations:
1.       (1988) 4 SCC 534
2.       (1992) 2 SCC 683
3.       (2017) 7 SCC 729
4.      AIR 1964 SC 1419 
5.       (2005) 6 SCC 138
6.       (2000) 2 SCC 617
7.      AIR 1987 SC 2235 
8.      AIR 1989 SC 1972 
9.      AIR 1999 SC 393 
10.      (1997) 1 SCC 134
11.      (1985) 1 SCC 260


HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN             

ARBITRATION APPLICATION NO.55 OF 2015       

ORDER: 

      Arbitration Application No.819 of 2016 is filed, by the
applicant in Arbitration Application No.55 of 2015, to appoint a co-
Arbitrator in the place of late Sri Justice T.Ch. Surya Rao by
modifying the order dated 11.12.2015 in Application No.1451 of
2015.
      Facts, to the limited extent necessary, are that the applicant
herein filed Arbitration Application No.55 of 2015 under Section
11(4) and (6) of the Arbitration and Conciliation Act, 1996
(hereinafter called the Act) requesting this Court to appoint an
Arbitrator, as the respondent had failed to appoint its nominee as
an Arbitrator in terms of the Arbitration Agreement dated
25.04.2013. Originally an order dated 20.11.2015 was passed
appointing Sri Justice M. Jagannadha Rao, retired Judge of the
Supreme Court, as the sole arbitrator.  Thereafter Arbitration
Application No.1451 of 2015 was filed by the applicant bringing it
to the notice of this Court that, in terms of the Clause 22-A of the
Agreement dated 25.04.2013, the earlier order dated 20.11.2015
was required to be modified as the Arbitration Agreement required
each party to the agreement to appoint an arbitrator, and the two
appointed Arbitrators to appoint a third arbitrator to act as the
Presiding Arbitrator; the applicant had appointed Sri Justice R.
Balasubrahmanian, Retired Judge of the Madras High Court, as
their nominee, and this Court should appoint an arbitrator on
behalf of the respondent.
      The earlier order dated 20.11.2015 was modified in
Application No.1451 of 2015 in Arbitration Application No.55 of
2015 dated 11.12.2015, and Sri Justice T.Ch.Surya Rao, a retired
Judge of this High Court, was appointed as an Arbitrator on behalf
of the respondent.  Both the arbitrators were requested to appoint
a third arbitrator to act as the Presiding Arbitrator, and the then
Acting Chief Justice left it open to them to consider Sri Justice M.
Jagannadha Rao, retired Judge of the Supreme Court, as the third
arbitrator.  Sri Justice T.Ch. Surya Rao passed away on
01.02.2016 before the first hearing scheduled to be held on
20.02.2016.
      The Applicant submits that, in view of the demise of the
Co-Arbitrator, it has become necessary for them to approach this
Court for appointment of a Co-Arbitrator to be a member of the
Arbitral Tribunal; and this Court should appoint a co-arbitrator in
the place of late Sri Justice T.Ch. Surya Rao by modifying the
order dated 11.12.2015 passed in Application No.1451 of 2015 in
Arbitration Application No.55 of 2015.  In the counter-affidavit,
filed on behalf of the respondent, it is stated that, on the demise of
late Sri Justice T.Ch. Surya Rao, the answering respondent had
the right to suggest/nominate its arbitrator to make up the
vacancy which had occurred due to his death; they had already
exercised such a right by communicating, to Justice M.
Jagannadha Rao, the Presiding Officer of the Tribunal through e-
mail dated 26.02.2016, that they had approached Sri Justice C.V.
Ramulu as their arbitrator; and, as the agreed procedure
prescribed under the contract had been followed, there was no
cause of action for maintaining the present application under
Section 11 of the Act.
        Sri B. Chandrasen Reddy, Learned counsel for the applicant,
would submit that the present application, filed under  Section
11(6) of the Act, is maintainable as the earlier appointment of Late
Sri Justice T.Ch. Surya Rao was  made  by this  Court  under
Section 11(6)  of the  Act; under  Section 15(2)  of the  Act, once
the  mandate  of the arbitrator  terminates, substitution   of the
arbitrator   shall  be  made    according   to  the  rules  that were
applicable  to  the appointment   of the arbitrator  being  replaced;
the rules, that are  applicable  to an arbitrator  being replaced,
should  be read as the rules that  were  applicable  at the  time of
appointment   of the earlier  arbitrator; the earlier arbitrator  was
appointed   by this Court  under  the  Act, and  the  same  rules
are  applicable, the  substitute  Arbitrator  should also be
appointed   by this Court  in the  same  manner; the intention  of
the  legislature, in using the expression, that  the substitute  Arbitrator
should  be  appointed    according  to  the  rules that  were   applicable  for
appointment of the arbitrator being  replaced,  should  be given  due
regard; the legislature has not  used the expression that the
substitute arbitrator  shall be   appointed  "in   accordance    with   the
procedure    laid   down    in  the arbitrator agreement"   executed  between
the  parties; there  is a clear distinction  between   the  two
propositions;   and  only  this Court  has jurisdiction  to  appoint
the  substitute  Arbitrator.
        On the other hand Sri Vedula Venkataramana, Learned 
Senior counsel appearing on behalf of the respondent, would
submit that, since Arbitration Application No.55 of 2015 filed
under Section 11 (5) and (6) of the Act has already been disposed
of, the present petition, filed under Section 151 CPC, is not
maintainable; the power  of the High Court to appoint an arbitrator
would  arise  only when there is a default by either of the parties to
appoint their respective  arbitrators; this is evident from the
language of Section 11 (3) and (4) of  the 1996 Act;  except for
Section 11(6),  this  Court  lacks jurisdiction  to appoint  or supply
a vacancy  in the office  of an  arbitrator; there is no default on the
part of the respondent in suggesting/appointing its arbitrator; it
has  already   appointed  Justice C.V.  Ramulu, as its nominee,
after  the  death  of Justice T. Ch. Surya Rao; Section  15 (2) of the
Act provides  for the substitution of an arbitrator as per the
original rules; the Rules would  mean the arbitral clause also; the
respondent would be disentitled to appoint an arbitrator on its
behalf, in terms of the arbitration clause of the agreement, only
during the lifetime of the arbitrator  appointed  by the court; when
once the arbitrator, appointed  by the Court, ceases to hold office
either due to resignation  or death, the situation reverts back to
the original stage enabling a party to the agreement to suggest/
appoint its arbitrator in accordance with the arbitration
agreement; failure to appoint an arbitrator  at an earlier point of
time, cannot result in a permanent  disqualification; Section  15 (2)
of the Act would revive the lost opportunity, and enable the
respondent  to nominate/appoint  its arbitrator on the demise of
the earlier arbitrators, appointed on its behalf, by this Court; any
other construction placed on Section  15(2) of the Act would  result
in anomaly  and injustice; it is only if the respondent  had not
appointed  its arbitrator,  within 30 days from the date of the death
of late Sri Justice T.Ch. Surya Rao, would the Applicant be entitled
to seek appointment  of a substitute arbitrator under Section 11 (6)
of the Act; and since there is no vacancy requiring   the Court to
appoint an arbitrator, for the reason that the  respondent has
already appointed Justice C.V. Ramulu as its arbitrator, this
petition, filed under Section 11(6) of the Act, is not maintainable in
law.
        Before considering the rival submissions, it is useful to refer,
albeit briefly, to the Statement of Objects and Reasons, and the
relevant provisions of the Act.  The Statement of Objects and
Reasons for enacting the Arbitration and Conciliation Act, 1996
(for short, the Act) lists the main objects of the Bill which, among
others, is to make provision for an arbitral procedure which is fair,
efficient and capable of meeting the needs of the specific
arbitration; and to minimise the supervisory role of Courts in the
arbitral process.  Section 5 prescribes the extent of judicial
intervention and provides that, notwithstanding anything
contained in any other law for the time being in force, in matters
governed by Part  I of the Act (Section 2 to 43), no judicial
authority shall intervene except where so provided in Part  I of the
Act.  Section 7(1) of the Act defines an arbitration agreement to
mean an agreement by the parties to submit to arbitration all or
certain disputes which have arisen, or which may arise between
them, in respect of a defined legal relationship, whether
contractual or not.
      Chapter III of the Act relates to the composition of the
Arbitral Tribunal, and Section 10(1) gives the parties the freedom
to determine the number of arbitrators, provided that such
number shall not be an even number.   Section 11 relates to the
appointment of arbitrators.  Section 11(1) stipulates that a person
of any nationality may be an arbitrator, unless otherwise agreed by
the parties.  Section 11(2) provides that, subject to sub-section (6),
the parties are free to agree on a procedure for appointing the
arbitrator or arbitrators.  Section 11(3) stipulates that failing any
agreement referred to in sub-section (2), in an arbitration with
three arbitrators, each party shall appoint one arbitrator, and the
two appointed arbitrators shall appoint the third arbitrator who
shall act as the presiding arbitrator.  Section 11(4) stipulates that,
if the appointment procedure in sub-section (3) applies, and (a) a
party fails to appoint an arbitrator within thirty days from the
receipt of a request to do so from the other party or (b) the two
appointed arbitrators fail to agree on the third arbitrator within
thirty days from the date of their appointment, the appointment
shall be made, upon the request of a party, by the High Court.
Section 11(6) stipulates that where, under an appointment
procedure agreed upon by the parties, (a) a party fails to act as
required under that procedure; or (b) the parties, or the two
appointed arbitrators, fail to reach an agreement expected of them
under that procedure; or (c) a person, including an institution, fails
to perform any function entrusted to him or it under that
procedure, a party may request the High Court to take necessary
measures, unless the agreement, or the appointment procedure,
provides other means for securing the appointment. Section
11(6A), as inserted by Act 3 of 2016 with effect from 23.10.2015,
stipulates that the High Court, while considering any application
under sub-sections (4) or (5) or (6), shall, notwithstanding any
judgment, decree or order of any Court, confine to the examination
of the existence of an arbitration agreement.
      While Sub-section (5) of Section 11, as it stood prior to its
amendment by Act 3 of 2016 with effect from 23.10.2015, enabled
a party to the arbitration agreement to request the Chief Justice,
or his designate, to appoint an arbitrator, Sub-section (6) enabled
the party to request that "the necessary measure" be taken. The
distinction between the words "the necessary measure" in Sub-section
(6) of Section 11 of the Act, and the word "appointment" in Sub-
section (5), is significant. In the absence of an appointment
procedure being prescribed, in the arbitration agreement, a request
could be made to the Chief Justice or his designate (now the High
Court) to appoint an arbitrator. Where, however, a procedure to
secure the appointment of an arbitrator is prescribed in the
arbitration agreement, then the Chief Justice or his designate can
only be requested to "take the necessary measure". If the legislature
intended to confer power on the High Court to appoint an
arbitrator it would have used the same language in sub-section (6)
as it had employed in sub-section (5) of Section 11. The power of
the High Court under sub-section (6) is to take "the necessary
measure" for securing the appointment of an arbitrator and,
ordinarily, not to take upon itself the task of appointing an
arbitrator merely because one of the parties to the arbitration
agreement had requested it to do so. If the parties have agreed on a
procedure for appointing the arbitrator, as contemplated by
Section 11(2), then the appointment must be in accordance with
the said procedure and recourse to the High Court cannot be taken
straightaway. (The Iron and Steel Company Ltd. v. Tiwari Road
Lines ).  Section 11(6) has application only when a party has failed
to act in terms of the arbitration agreement. (National Highways
Authority of India v. Bumihiway DDB Ltd ; Yashwitha
Constructions (P) Ltd. v. Simplex Concrete Piles India Ltd. rep
by its Managing Director ).
        Section 14(1)(a) of the Act stipulates that the mandate of an
arbitrator shall terminate, and he shall be substituted by another
arbitrator if he becomes de jure or de facto unable to perform his
functions.  Section 15 relates to the termination of mandate and
substitution of arbitrator. Section 15(1)(a) provides that, in
addition to the circumstances referred to in Section 13 or 14, the
mandate of an arbitrator shall terminate where he withdraws from
office for any reason.  Section 15(2) stipulates that, where the
mandate of an arbitrator terminates, a substitute arbitrator shall
be appointed according to the rules that were applicable to the
appointment of the arbitrator being replaced.  Section 15(3)
stipulates that unless otherwise agreed by the parties, where an
arbitrator was replaced under sub-section (2), any hearings
previously held may be repeated at the discretion of the arbitral
tribunal.
      Clause 22A of the agreement dated 04.05.2011, entered into
between the applicant and the respondent,  reads thus:
   22A. ARBITRATION  
(i)     If any disagreement arises out of or in connection with the
validity, application or interpretation of this agreement (the
Dispute), the parties shall endeavour in good faith to resolve
the dispute through negotiation within 30 (thirty) days of a
written notice setting out the nature of such dispute.
(ii)    In the event that any dispute is unable to be resolved between
the parties pursuant to Clause 22A(1) within 30 (thirty) days of
receipt of the notice under Clause 22A(1), then such dispute
shall be referred to arbitration.
(iii)   The arbitration will be conducted as per the Arbitration and
Conciliation Act, 1996 under the rules of the Singapore
International Arbitration Centre.  The arbitral tribunal shall
comprise of 3 (three) arbitrators.  Each party shall appoint one
arbitrator, and the two arbitrators so appointed shall appoint
the third arbitrator.  The place of arbitration for any disputes
shall be Bangalore.  The language to be used in the arbitral
proceedings shall be English.
(iv)    Responsibility of payment for all costs of arbitration, excepting
counsel fees, shall be as per the arbitration award.
(v)     While any dispute under this agreement is pending and except
where this agreement has been terminated in accordance with 
the terms of this agreement and/or any of the project
agreements, the parties shall continue to perform all of their
respective obligations under this agreement without prejudice
to the final determination in accordance with the provisions
under this Clause 22A.

      In terms of sub-clause (iii) of Clause 22-A of the aforesaid
agreement, the arbitral tribunal is to comprise of three arbitrators,
each party to appoint one arbitrator, and the two arbitrators to
appoint the third arbitrator.  As the respondent had earlier failed
to appoint an arbitrator on their behalf, the jurisdiction of the
Chief Justice was invoked by the applicant, under Section 11(4)
and (6) of the Act, complaining that, while they had appointed
Justice R. Balasubramannian, (Retd. Judge of the Madras High
Court), the respondent had failed to appoint an arbitrator on their
behalf.  The then Acting Chief Justice had appointed Sri Justice
T.Ch. Surya Rao as an arbitrator on behalf of the respondent.  On
the demise of Justice T.Ch. Surya Rao, a substitute arbitrator was
required to be appointed in his place.  While the aforesaid
arbitration clause does not specifically provide for appointment of a
substitute arbitrator, Section 15(2) of the 1996 Act requires a
substitute arbitrator to be appointed in accordance with the rules
applicable to the appointment of the arbitrator being replaced.
      The question which arises for consideration is what do the
words, rules that are applicable to the appointment of the arbitrator being
replaced, used in Section 15(2) of the Act, mean?  A party, who has
entered into an arbitration agreement with another, should not be
permitted to resile therefrom. When the mandate of the arbitrator
stands terminated, appointment of an arbitrator should,
necessarily. be made in accordance with the arbitration clause of
the agreement. (National Highways Authority of India2;
Yashwitha Constructions (P) Ltd.3).  Where the mandate of the
arbitrator stands terminated for any reason, it falls within the
purview of Section 15(1)(a) of the Act, and attracts Section 15(2) of
the Act.  (National Highways Authority of India2).
      Unless the arbitration agreement between the parties
categorically prohibits or debars resolution of a dispute or
difference between the parties by a substitute arbitrator, in the
case of death of the named arbitrator or non-availability of the said
arbitrator, the power to appoint a substitute arbitrator is given by
Section 15(2) of the Act which should be given liberal
interpretation so as to apply to all possible circumstances under
which the mandate of the earlier arbitrator may have been
terminated. (SBP and Co. v. Patel Engg. Ltd. ).  Even if there is
no specific provision in the arbitration agreement authorizing
appointment of a substitute arbitrator on the termination of the
original appointment, or when the originally appointed arbitrator
withdraws from arbitration or is no more, this omission in the
arbitration agreement is made up by the specific provision
in Section 15(2) of the Act. (Yashwitha Constructions (P) Ltd.3).
      Section 15(2), when it refers to the applicable rules, does not
confine appointment of a substitute arbitrator to a statutory rule,
or a rule framed under the Act, or under the scheme. It refers to
the provision for appointment contained in the arbitration
agreement, or any rules of any institution under which the
disputes are to be referred to arbitration.  Section 15(2) requires a
substitute arbitrator to be appointed according to the original
agreement or provision applicable to the appointment of the
arbitrator at the initial stage. (Shailesh Dhairyawan v. Mohan
Balkrishna Lulla ; Yashwitha Constructions (P) Ltd.3).
      As the rules referred to in Section 15(2) is the arbitration
agreement, the procedure prescribed, for appointment of
arbitrators, in the arbitration agreement are the rules which are
applicable to the appointment of a substitute arbitrator also.  Since
the arbitration agreement (i.e., Clause 22-A(iii)) of the agreement
requires each party to nominate an arbitrator, the requirement of
the rules, referred to in Section 15(2) of the Act, is for the
respondent to nominate its arbitrator on the death of the previous
arbitrator appointed on their behalf.  The procedure, to be followed
in the appointment of a substitute arbitrator, is the same as the
procedure relating to the initial appointment of the arbitrator, i.e.,
in terms of Clause 22-A(iii) of the agreement dated 04.05.2011.
Consequently it is only if the respondent had failed to adhere to
the procedure, prescribed in Clause 22-A(iii) of the agreement, in
appointing an arbitrator (be it the original or the substitute
arbitrator), could the applicant have invoked the jurisdiction of the
High Court under Section 11(6) of the Act requesting it to take the
necessary measure. 
      Primacy is given to the procedure agreed upon by the
parties, to appoint an arbitrator, failing which alone does the Act
permit judicial interference. In exercising its jurisdiction
under Section 11(6) to take "the necessary measure", the High Court
should, as far as possible, act in such a manner as to effectuate
the arbitration agreement entered into between the parties.
(Yashwitha Constructions (P) Ltd.3).  When parties have entered
into a contract, and have settled on a procedure, due importance
should be given by the High Court to such a procedure.  The
parties are, normally, bound by the arbitration clause, and are
obliged to comply with the procedure laid down therein. (Datar
Switchgears Ltd. v. Tata Finance Ltd. ). Since Section
15(2) requires a substitute arbitrator to be appointed in
accordance with the arbitration agreement, the High Court, while
taking "the necessary measure" under Section 11(6), cannot usurp the
powers conferred by the agreement on the respondent to appoint a
substitute arbitrator. On a harmonious construction of Sections
11(6) and 15(2) it must be held that on the mandate of an
arbitrator being terminated and only if the respondent, in
accordance with the arbitration agreement, fails to appoint a
substitute arbitrator, can the jurisdiction of the High Court be
invoked under Section 11(6) of the Act. (Yashwitha Constructions
(P) Ltd.3).
      In the present case, soon after the demise of late Sri Justice
T.Ch. Surya Rao, and even before the applicant could make a
request, the respondent had appointed Sri Justice C.V. Ramulu as
an arbitrator on their behalf.  The jurisdiction of the High Court,
under Section 11(6)(a) of the Act to take the necessary measure,
can be invoked by a party only where the other party fails to
appoint an arbitrator in terms of the appointment procedure
prescribed under the agreement.  It is only if, on the termination of
the mandate of the earlier arbitrator, the respondent had failed to
appoint a substitute arbitrator in accordance with Clause 22A(iii)
of the agreement, despite a specific request in this regard by the
applicant, could the applicant have invoked the jurisdiction of the
High Court under Section 11(4(a) seeking appointment of an
arbitrator on behalf of the respondent, or for necessary measures
to be taken under Section 11(6)(a) of the Act. As the respondent
has acted in accordance with the appointment procedure
prescribed under Clause 22-A(iii) of the arbitration agreement, and
has appointed Sri Justice C.V. Ramulu as their arbitrator, Section
11(4)(a) and Section 11(6)(a) are not attracted. Neither Section
11(4)(a) nor Section 11(6)(a) of the Act confer jurisdiction on the
High Court to appoint a substitute arbitrator, when the respondent
has, in terms of the arbitration agreement, appointed a substitute
arbitrator in the place of the arbitrator whose mandate stood
terminated.  Consequently, the applicant was not entitled to invoke
the jurisdiction of the High Court to take the necessary measure,
to appoint an arbitrator in the place of late Sri Justice T.Ch. Surya
Rao.
      Is a different procedure required to be adopted in cases
where failure of one of the parties to the arbitration agreement to
nominate its arbitrator earlier, had resulted in an arbitrator being
appointed on its behalf by the High Court under Sections 11(4) and
(6) of the Act?  The answer can only be in the negative.  Firstly,
because Sections 11(4) and (6) are statutory provisions, and are
not the rules applicable to the appointment of the arbitrator being
replaced. It is the arbitration agreement which constitutes the
rules applicable to the appointment of the arbitrator being
replaced.  Secondly, the very purpose of the Act, as is evident from
the Statement of Objects and Reasons, is to minimise the
supervisory role of Courts in the arbitral process, which would
mean from the commencement of arbitral proceedings under 
Section 21 of the Act.  The present application, whereby a request
is made for appointment of a substitute arbitrator, (in the place of
Sri Justice T.Ch. Surya Rao the earlier arbitrator), under Section
11(6) of the Act is on the erroneous premise that since the
respondent had failed to appoint an arbitrator on their behalf
earlier, which resulted in the then Acting Chief Justice appointing
an Arbitrator on their behalf, the respondent had forfeited their
right to appoint an arbitrator, on their behalf, for all times to come,
and a substitute arbitrator could, therefore, only be appointed by
the High Court under Section 11(6) of the Act.  This premise is
flawed for the reasons that (i) the Act gives primacy to the intention
of the parties as is reflected in the arbitration clause of the
agreement; (ii) Section 5 of the Act prohibits judicial intervention
except where explicitly provided under the Act, and there is no
specific provision in the Act which requires the High Court to
appoint a substitute arbitrator if it had earlier appointed the
arbitrator whose mandate stood terminated; and (iii) the rules,
referred to in Section 15(2), is the arbitrator agreement, and not
the provisions of the Act or the rules made thereunder.
      Further, parties to the arbitration agreement have been
statutorily conferred (by Section 11(2) of the Act) the freedom to
nominate an arbitrator of their choice.  While a party, which had
failed to exercise its right earlier to appoint an arbitrator in terms
of the agreement, resulting in an arbitrator being appointed by the
High Court, under Section 11(4) and (6) of the Act, would not be
entitled to seek substitution of such an arbitrator except on
grounds specified in Sections 13, 14 and 15(1), and following the
procedure prescribed in Section 15(2) of the Act, termination of the
mandate of the arbitrator, appointed either by the parties to the
agreement or by the High Court, would result in the situation
reverting back to the original position, and thereafter the
procedure prescribed under the agreement, for appointment of the
original arbitrator, would apply in the appointment of the
substitute arbitrator.  Consequently, it is only if, on a request
made by the other party, the party which is required to nominate
the substitute arbitrator fails to do so, would the party making the
request then be entitled to invoke the jurisdiction of the High
Court, under Section 11(4) and (6) of the Act, seeking appointment
of an arbitrator on behalf of the other.  If, on the other hand, the
party to the agreement has exercised its right to appoint a
substitute arbitrator, and the vacancy caused, as a result of the
mandate of the earlier arbitrator being terminated, has been filled
up, the High Court cannot be called upon to fill up a non-existent
vacancy.  The mere fact that they had failed to nominate an
arbitrator earlier, in terms of the arbitration agreement, would not
disable them, for all times to come, from exercising their right,
under the arbitration agreement, to nominate their arbitrator in
the place of the arbitrator whose mandate stood terminated under
Sections 13, 14 and 15 of the Act (in the present case on the death
of the earlier arbitrator).
      It is only if the respondent had failed to exercise their right
to appoint a substitute arbitrator, could the High Court have
assumed jurisdiction under Section 11(6) of the Act. (National
Highways Authority of India2; Yashwitha Constructions (P)
Ltd.3).  Section 11(6) of the Act has application only when a party,
or the person concerned, has failed to act in terms of the
arbitration agreement. (Shailesh Dhairyawan5; Yashwitha
Constructions (P) Ltd.3).   In the present case, the agreement
specifically prescribes a procedure for appointment of an
arbitrator, which rules also apply for appointment of a substitute
arbitrator. (Yashwitha Constructions (P) Ltd.3).
      In the light of the aforesaid observations, let us now examine
the judgments relied on by Learned Counsel on either side.  In
Datar Switchgears Ltd.6, the respondent appointed an arbitrator
beyond 30 days of the request, but before the appellant had filed
the application under Section 11 of the Act.  The question, which
arose for the consideration of the Supreme Court, was whether, in
a case falling under Section 11(6), the opposite party was disabled
from appointing an arbitrator after expiry of 30 days from the date
of demand.  It is in this context that the Supreme Court held that
an application, under Section 11(6), can be filed when there is a
failure of the procedure for appointment of Arbitrator; this failure
of procedure can arise under different circumstances; it can be a
case where a party who is bound to appoint an Arbitrator refuses
to appoint the Arbitrator or where two appointed Arbitrators fail to
appoint the third Arbitrator; the aggrieved party can then approach
the Chief Justice for appointment of Arbitrator; no time limit has
been prescribed under Section 11(6) of the Act, whereas a period of
30 days has been prescribed under Sections 11(4) and (5) of the
Act; so far as Section 11(6) is concerned, if one party demands the
opposite party to appoint an arbitrator, and the opposite party
does not make an appointment within 30 days of the demand, the
right to appointment does not get automatically forfeited after
expiry of 30 days; if the opposite party makes an appointment even
after 30 days of the demand, but before the first party has moved
the Court under Section 11(6), that would be sufficient; but an
appointment has to be made before an application is filed
under Section 11(6) seeking appointment of an arbitrator; and
thereafter the right of the party, to appoint an arbitrator, ceases.
      The law declared in Datar Switchgears Ltd.6 is that, failure
of one of the parties to the agreement to appoint an arbitrator on
being so requested by the other party, resulting in the latter
invoking the jurisdiction of the High Court under Section 11(6) of
the 1996 Act, would disable the party, who failed to appoint an
arbitrator, from doing so thereafter, and it is only the High Court
which can then appoint an arbitrator.  In Datar Switchgears Ltd.6
neither was the scope of Section 15(2) examined, nor the question
whether, consequent upon the earlier arbitrator having been
appointed by the High Court under Section 11(6) of the Act, the
substitute arbitrator should also be appointed only by the High
Court, and not by the party on whom the right to appoint an
arbitrator is conferred by the arbitration agreement.
      In M/s. Yashwith Constructions (P) Ltd. v. M/s. Simplex
Concrete Piles India Ltd. , on a dispute having arisen, the
Managing Director of the respondent company appointed an
arbitrator in terms of the arbitration clause; the arbitrator
resigned; thereupon the Managing Director of the respondent
company, in view of the mandate in the arbitration agreement,
promptly appointed another arbitrator; at that stage, the petitioner
approached the Chief Justice of the High Court under Section
11(6) read with Section 15(2) of the Act  praying that the Chief
Justice may appoint a substitute arbitrator to resolve the disputes
between the parties; and the Chief Justice held that no occasion
arose for him to appoint an arbitrator under Section 11(6) of the
Act in the case.
      It is in this context that the Supreme Court observed that
there was no specific provision in the arbitration agreement
authorizing the Managing Director to appoint a substitute
arbitrator if the original appointment terminated or if the originally
appointed arbitrator withdrew from arbitration; this so called
omission in the arbitration agreement was made up by the specific
provision contained in Section 15(2) of the Act; withdrawal of an
arbitrator from office for any reason was within the purview
of Section 15(1)(a) of the Act; therefore Section 15(2) would be
attracted, and a substitute arbitrator had to be appointed
according to the rules that were applicable for the appointment of
the arbitrator to be replaced; what Section 15(2) contemplated was
appointment of a substitute arbitrator, or the replacement of the
arbitrator by another, according to the rules that were applicable
to the appointment of the original arbitrator who was being
replaced; the term "rules", in Section 15(2), obviously referred to
the provision for appointment contained in the arbitration
agreement, or any Rules of any Institution under which the
disputes were referred to arbitration; when Section 15(2) said that
a substitute arbitrator can be appointed, according to the rules
that were applicable for the appointment of the arbitrator
originally, it was not confined to an appointment under any
statutory rule or rule framed under the Act or under the Scheme; it
only meant that appointment of a substitute arbitrator must be
done according to the original agreement, or provision applicable to
the appointment of the arbitrator at the initial stage; and they were
not in a position to agree with the contrary view taken by some of
the High Courts. The law declared in M/s. Yashwith
Constructions (P) Ltd.7 is that the rules governing appointment
of a substitute arbitrator, (as is referred to in Section 15(2) of the
Act), is not confined to any statutory rules or rules made under the
Act or under a Scheme framed under the Act, but only means that
a substitute arbitrator should be appointed in accordance with the
arbitration agreement.
      In National Highways Authority of India2, after
appointment of the presiding arbitrator, the arbitrator, appointed
by the appellant, resigned; the new arbitrator, nominated by the
appellant, did not accept the appointment; thereafter on the
vacancy created by the resignation of the presiding arbitrator, the
process of appointment of the presiding arbitrator started afresh in
accordance with the agreed terms of the contract; the appellant
appointed its arbitrator, and the process of discussion, between
the two nominated arbitrators, was reinitiated as per the agreed
contractual terms, and in accordance with Section 15(2) of the Act;
the two arbitrators failed to arrive at a consensus and therefore,
after 30 days, the appellant referred the issue of appointment of
the presiding arbitrator to the IRC; however, the process which had
been reinitiated by the two nominated arbitrators was restrained
by the High Court.
      It was contended, on behalf of the appellant, that Sections
15(1) and 15(2) were complete and wholesome, and contradistinct
to Section 11(6); the resignation of the presiding arbitrator brought
the matter back from the vestiges of Section 11(6), (though in the
first place in law there were none), and brought the matter
squarely within Section 15(2); any decision given under Section
11(6) would tantamount to putting the Act upside down; and the
scope of Section 15(2) was no longer res integra as per the dictum
in M/s. Yashwith Constructions (P) Ltd.7.  On the other hand, it
was contended on behalf of the respondent, that there had been a
judicial determination by the High Court which was based on the
reasoning that, hierarchically, a judicial arbitrator must sit with
another Judge only.
      It is in this context that the Supreme Court held that the
situation which existed prior to the resignation of the presiding
arbitrator, and those which came about subsequent thereto, only
affirmed that the vacancy created by the resignation of the
presiding arbitrator was accepted by the parties to be filled up in
accordance with the original rules of appointment, which was
wholly in consonance with Section 15(2) of the Act; the
appointment, made by the High Court, was against the express
provisions of the contract as held in You One Engg. &
Construction Co. Ltd. v. National Highways Authority of
India , reaffirming that, once the arbitration agreement clearly
envisages appointment of the presiding arbitrator by the IRC, there
was no qualification that the arbitrator had to be a different person
depending on the nature of the dispute; if the parties had entered
into such an agreement with open eyes, it was not open to ignore it
and invoke the powers under Section 11(6); in the present case, by
making a reference to the High Court under Section 11(6) and
alleging that one of the arbitrators was a retired judicial person,
the respondent has only admitted to rewrite the contract between
the parties, which is against the law of the land; the respondent
had wrongly invoked the jurisdiction of the High Court, without
first following the procedure agreed to between the parties; no
cause of action had arisen in the facts of the case to seek
appointment from the High Court under Section 11(6) of the Act,
and the said petition was premature; there did not exist any such
provision in law which required that, if one of the arbitrators was a
retired Judge, the presiding arbitrator also had to be a retired
Judge; the parties had entered into a contract after fully
understanding the import of the terms so agreed upon, from which
there could not be any deviation; and the parties were required to
comply with the procedure of appointment as agreed to.
      In Magma Leasing Limited v. Tonganagaon Tea Co Pvt.
Ltd.  the Calcutta High Court held that, under Section 15(2) of the
Act, where the mandate of the Arbitrator is terminated, a
substitute Arbitrator should be appointed according to the rules
that were applicable to the appointment of the Arbitrator being re-
placed; the named Arbitrator had refused to act and, on an
application under Section 11 of the Act, the Chief Justice had
appointed Mr. P.K. Banerjee, retired Chief Justice of the Rajasthan
High Court, as the learned Arbitrator; and when the mandate of
the learned Arbitrator had been terminated, the petitioner had
rightly approached the Court for appointment of the Arbitrator by
the Chief Justice in the place of the outgoing learned Arbitrator.  In
Magma Leasing Limited9, while appointment of a substitute
arbitrator by the Chief Justice of the Calcutta High Court was held
valid, the said judgment does not indicate why, on the mandate of
the earlier arbitrator being terminated, the party, on whom the
arbitration agreement confers a right to appoint an arbitrator,
cannot do so.
      In Ramjee Power Construction Ltd. v. Damodar Valley
Corporation , the question which arose for consideration in the
Arbitration Application was whether, upon the death, resignation
or termination of the mandate of an Arbitrator appointed by the
Chief Justice under Section 11(6) of the Act, a substitute Arbitrator
was required to be appointed only by the Chief Justice and/or his
designate, or whether such appointment should be made in
accordance with the arbitration agreement.   The dispute had
arisen in connection with a contract which, inter alia, contained an
arbitration clause which read thus:-
       "ARBITRATION:  Except where otherwise provided in the contract
all question and disputes relating to the meaning of specifications,
designs, drawings and instructions herein contained and as to the
quality of the workmanship or materials used on the work or as to any
other question claim, right, matter or thing whatsoever in any way
arising out of or relating to the contract, designs, drawings,
specifications, estimates, instructions, orders or these conditions or
otherwise concerning the works or the execution or failure to execute the
same whether arising during the progress of the work or after the
completion or abandonment therefore shall be referred to the sole
arbitration of a person appointed by the DVC who may or may not be a
DVC Officer.

       Such appointment shall not be objected on the ground that the
arbitrator so appointed is a DVC Official or that he had to deal with
matters to which the agreement rules and in the course of his duties as
DVC official he had expressed views on all or any of the matter in
disputes or difference. The award of the arbitrator so appointed shall be
final, conclusive and binding on all parties to the contract."

      The Calcutta High Court held that the language and tenor
of Section 15(2) was significant; the Legislature had, in its wisdom,
carefully used the expression "the substitute arbitrator shall be appointed
according to the rules that were applicable to the appointment of the arbitrator
being replaced", instead of using the expression "the substitute
arbitrator shall be appointed in accordance with the procedure for appointment
laid down in the arbitration agreement executed between the parties; if the
legislative intent was that a substitute arbitrator should always be
appointed in accordance with the procedure agreed upon by the
parties, irrespective of whether the arbitrator being replaced was
appointed by the Chief Justice or his designate, the legislature
would perhaps have not used the expression in accordance with the
rules that were applicable to the appointment of the arbitrator being replaced;
in this case, the erstwhile arbitrator was appointed in accordance
with Section 11(6) of the Act, read with the Rules framed by the
Court, and the Rules that have evolved with practice; an arbitrator
must be appointed in accordance with the procedure agreed
between the parties; if however the party, required in terms of the
agreement to appoint or to agree to an arbitrator, fails to do so
within the time stipulated in the agreement and/or in Section 11 of
the Act, the other party may request the Chief Justice or his
designate to appoint an arbitrator under Section 11; once an
application under Section 11 is made, the right of the other party
to appoint an arbitrator, in accordance with the agreement, gets
extinguished; the right under the agreement, of a party, to appoint
an arbitrator, which stands extinguished once an application
under Section 11(6) is made, does not revive, if the arbitrator
appointed by the Chief Justice resigns and/or his mandate is
terminated; the expression "rules that were applicable to the appointment
of the arbitrator being replaced" in Section 15 have been chosen
carefully; if the arbitrator being replaced was appointed by the
Chief Justice and/ or his designate, in accordance with Section
11 of the Act read with the applicable rules, the substitute
arbitrator should also be appointed by the Chief Justice and/or his
designate in the same manner; it is immaterial that the respondent
has appointed an arbitrator in the meanwhile; and appointment of
the arbitrator by the respondent, after filing of this application, is
of no consequence.
      The Calcutta High Court in Ramjee Power Construction
Ltd10, held that if the arbitrator being replaced was appointed by
the Chief Justice and/or his designate, in accordance with Section
11 of the Act read with the applicable rules, the substitute
arbitrator must also be appointed by the Chief Justice and/or his
designate in the same manner.  The premise, on which this
conclusion is based, is that the words rules that are applicable to the
appointment of the arbitrator being replaced in Section 15(2) of the Act
refers to Section  11 of the Act and the applicable rules, for it is
only then can it be said that a party to the agreement loses his
right to appoint a substitute arbitrator, if he had failed to exercise
his right earlier to appoint the original arbitrator and his failure to
do so had resulted in the jurisdiction of the High Court, under
Section 11(6) of the Act, being invoked.  As noted hereinabove, the
Supreme Court, in M/s. Yashwith Constructions Pvt Ltd7, has
held that the rules, referred to in Section 15(2), are the rules
applicable to the appointment of the original arbitrator (the
arbitration agreement), and not to any statutory rules or rules
made under the Act or a Scheme framed under the Act. 
      In Ignatius Tony Pereira v. Mr.Pifran Sanjivan
Fernandes , the Bombay High Court, following the judgment of
the Calcutta High Court in Ramjee Power Construction Ltd.10,
held that an arbitrator must be appointed in accordance with the
procedure agreed between the parties; if, however, the party
required, in terms of the agreement, to appoint or to agree to an
arbitrator failed to do so within the time stipulated in the
agreement, and/or in Section 11 of the Act, the other party may
request the Chief Justice or his designate to appoint an arbitrator
under Section 11; once an application under Section 11 is made,
the right of the other party to appoint an arbitrator, in accordance
with the agreement, gets extinguished; the right of a party to
appoint an arbitrator under the agreement, which stands
extinguished once an application under Section 11 (6) is made,
does not revive, if the arbitrator appointed by the Chief Justice
resigns and/or his mandate is terminated; the expression "rules
that were applicable to the appointment of the arbitrator being replaced" in
Section 15, have been carefully chosen; if the arbitrator being
replaced was appointed by the Chief Justice and/ or his designate,
in accordance with Section 11 of the Act read with the applicable
rules, the substitute arbitrator would also have to be appointed by
the Chief Justice and/or his designate in the same manner; it was
immaterial that the respondent had appointed an arbitrator in the
meanwhile; and appointment of the arbitrator by the respondent,
after filing of the application, was of no consequence.
      I find it difficult to concur with the opinion of the Bombay
High Court in Ignatius Tony Pereira11, and the Calcutta High
Court in Ramjee Power Construction Ltd10, wherein it has been
held that, once an arbitrator is appointed by the Chief Justice of
the High Court under Section 11, the right of the other party to
appoint a substitute arbitrator, in accordance with the agreement,
gets extinguished forever.  My inability to agree is, firstly, because
the rules referred to in Section 15(2), (as held by the Supreme
Court in M/s. Yashwith Constructions (P) Ltd7), is the arbitration
agreement; secondly, because Section 5 of the Act permits judicial
intervention only when specifically provided under Part-I of the
Act; and there is no specific provision in Part-I of the Act, much
less in Section 15 thereof, stipulating that, if the earlier arbitrator
is appointed by the High Court under Section 11(4) & (6) of the Act,
the substitute arbitrator must also be appointed only by the High
Court and not by the party to the agreement.  Since the very object
of the Act is to minimise the supervisory role of Courts in the
arbitral process, and to give primacy to the agreement between the
parties, there is no justifiable reason why a party to the arbitration
agreement should, forever, be denied his right to appoint a
substitute arbitrator, on the mandate of the earlier arbitrator being
terminated, merely because he had failed to exercise his right, to
appoint an arbitrator, earlier.
      The respondent is entitled, in terms of Clause 22-A(iii) of the
agreement, to appoint a substitute arbitrator even if they had failed
to appoint an arbitrator earlier.  On their exercising their right to
appoint a substitute arbitrator, no other person can be appointed
as an arbitrator, in substitution, by the High Court.  It is only if
they had failed to appoint a substitute arbitrator, despite being
requested to do so by the applicant, would the applicant then have
been entitled to invoke the jurisdiction of the High Court, under
Section 11(6) of the Act, requesting it to take the necessary measure.
As the respondent has appointed Justice C.V. Ramulu as their
substitute arbitrator, even before they were called upon by the
applicant to do so, the applicant is not entitled to invoke the
jurisdiction of the High Court, under Section 11(6) of the Act,
seeking appointment of a substitute arbitrator.  The application, as
filed, is therefore not maintainable.
      The arbitration application is, accordingly dismissed.  The
miscellaneous petitions pending, if any, shall stand closed.  No
costs.
________________________________   
RAMESH RANGANATHAN, ACJ       
Date:27.12.2017.

set aside exparte decree - when ? = The Defendant when he comes to know of the suit or the decree passed therein may in such a case approach the Court for relief under Order 9, Rule 13, Code of Civil Procedure (CPC), and point out that he has not been 'duly served - whether he really avoided service or whether as a matter of fact he came to know of the suit otherwise. These facts will have to be determined by the Court to which application is made to set aside an ex parte decree.- the Court below did not adhere to the mandatory provisions of Order V CPC. On this ground also the impugned judgment is liable to be set aside. - In the result, the Appeal Suit is allowed, setting aside the judgment and decree - remanded to the Court below for fresh enquiry and for rendering judgment, in accordance with law, after giving opportunity to all the stakeholders.

HONBLE SRI JUSTICE A.V. SESHA SAI     

APPEAL SUIT No.437 OF 2007   

18.12.2017

1. G.Hari Babu, W/o late G.Raghavaiah,   Aged 47 years, Occ: Business.  2. Smt.G.Venkata Lakshmi, W/o G.Hari Babu,Aged 41 ye   

K.Javaram Reddy, S/o K.Balreddy,   Aged 49 years, Occ: Business & 2 others.   All are residents of  Plot No.40, Jalavayu Vih

Counsel for Appellants: Sri B.Venkata Ramarao.

Counsel for respondents: Sri V.N.R.Prashanth

<GIST:

>HEAD NOTE:   

? Cases referred
1.(1999) 8 SCC 396
2.AIR 1974 AP Pg.1 (FB)
3.AIR 1957 AP Pg.1 (FB)

THE HONBLE SRI JUSTICE A.V.SESHA SAI     

APPEAL SUIT No.437 of 2007 

JUDGMENT: 

        The defendants, in O.S.No.125 of 2003 on the file of the II
Additional District Judge, Ranga Reddy District at L.B.Nagar,
Hyderabad, are the appellants in the present Appeal Suit, preferred
under Section 96 of the Code of Civil Procedure (for brevity, CPC).

        Heard Sri B.Venkat Rama Rao, learned counsel for the
appellants, and Sri V.N.R.Prashanth, learned counsel for the
respondents, apart from perusing the material available before this
Court.

        This Appeal Suit challenges the judgment and decree, dated
22.11.2004, passed by the learned II Additional District Judge,
Ranga Reddy District at L.B.Nagar, Hyderabad in O.S.No.125 of
2003, instituted by the respondents herein, praying for cancellation
of two sale deeds, in respect of the suit schedule property, bearing
document Nos.9208/02 and 9209/02, dated 26.10.2002, and for a 
direction to the defendants to execute the deed of cancellation
before the Sub-Registrar, Medchel.
       
        During the course of trial, on behalf of the plaintiffs, the first
plaintiff was examined as P.W.1 and Exs.A1 to A3 were marked. 
The defendants-appellants herein remained ex parte.
       
        The learned II Additional District Judge decreed the suit
ex parte on 22.11.2004. The present Appeal Suit, filed under
Section 96 CPC by the defendants in the suit, challenges the
validity and the legal sustainability of the said judgment and
decree.

        It is contended by the learned counsel for the defendants-
appellants herein that the judgment rendered by the learned II
Additional District Judge is erroneous, contrary to law, weight of
evidence and probabilities of the case and also not in conformity
with the provisions of Order XX Rule 4 CPC; that the learned Judge
grossly erred in decreeing the suit ex parte contrary to the
provisions of Order V CPC. In order to bolster his submissions and
contentions, the learned counsel placed reliance on the following
judgments:
1.      (1999) 8 SCC 396
2.      AIR 1974 AP Pg.1 (FB) 
3.      AIR 1957 AP Pg.1 (FB) 

        On the contrary, it is vehemently contended by the learned
counsel for the plaintiffs-respondents herein that the learned II
Additional District Judge rendered the judgment strictly in
accordance with law, as such, the same does not warrant any
interference of this Court under Section 96 CPC.        It is the further
submission of the learned counsel that, only after effecting service
of notice on the defendants, by way of publication in a daily
newspaper, under the provisions of Order V Rule 20 CPC, the
learned Judge decreed the suit. It is further submitted by the
learned counsel that since the defendants-appellants herein did not
contest the matter before the Court below, they cannot maintain
the present Appeal Suit under Section 96 CPC.
        In the above background, now the points that arise for
consideration of this Court, in the present Appeal Suit, are as
under:
1.      Whether the judgment rendered by the Court
below is in accordance with the provisions of
Order XX Rule 4 CPC? 
2.      Whether the Court below adhered to the
other provisions of Order V CPC before
ordering substitute service under the
provisions of Order V Rule 20 CPC?
3.      Whether the judgment and decree rendered 
by the learned Additional District Judge are
sustainable and tenable?
Point No.1:
        In order to examine the issue as to whether the judgment
rendered by the learned II Additional District Judge is in conformity
with the provisions of Order XX Rule 4 CPC, it would be
appropriate and apposite to refer to the said provision of law.

        Order XX CPC deals with the judgment and decree. Sub-Rule 
(1) of Rule 4 of Order XX CPC deals with the judgment of the Small
Causes Courts and sub-rule (2) of the said rule deals with the
judgments of other Courts. Sub-rule (2) of Rule 4 of Order XX CPC
reads as under:
        judgments other than in Small Cause Suits
shall contain a concise statement of the case,
the points for determination, the decision
thereon, and the reasons for such decision.

        In the instant case, the complaint of the defendants-
appellants is that the judgment rendered by the learned II
Additional District Judge is not in consonance with the above
referred provisions of law. In this context, it may be appropriate to
extract the judgment rendered by the Court below which reads as
under:
        Heard the counsel for the petitioners.
Perused the contents of sworn affidavit of P.W.1
and the documents which are marked as Exs.A1 
to A3 on behalf of the plaintiffs. Suit filed by the
plaintiff is hereby decreed as prayed for with
costs and the sale deed bearing No.9208/02 and
9209/02 dated 26.10.2002 which are marked as 
Exs.A1 and A2 respectively are hereby cancelled.
        Written and pronounced by me in open Court
on this the 22nd day of Nov.2004.

        In this context, it may be apt to refer to the judgment cited by
the learned counsel for the defendants-appellants in BALARAJ
TANEJA & ANOTHER v. SUNIL MADAN & ANOTHER ,  wherein         
the Honourable Apex Court, while dealing with the provisions of
Section 2 (9) and Order XX Rule 4 (2) CPC, held, at paragraph
Nos.42 and 45, as under:
42.     Judgment" as defined in Section 2(9)
of the Code of Civil Procedure means the
statement given by the Judge of the grounds for
a decree or order. What a judgment should
contain is indicated in Order 20, Rule 4 (2)
which says that a judgment:
"shall contain a concise statement of the case,
the points for determination, the decision
thereon and the reasons for such decision."
45.     Learned counsel for respondent No. 1
contended that the provisions of Order 20, Rule
1 (2) would apply only to contested cases as it is
only in those cases that "the points for
determination" as mentioned in this Rule will
have to be indicated, and not in a case in which
the written statement has not been filed by the
defendants and the facts set out in the plaint are
deemed to have been admitted. We do not agree. 
Whether it is a case which is contested by the
defendants by filing a written statement, or a
case which proceeds ex-parte and is ultimately
decided as an ex-parte case, or is a case in
which the written statement is not filed and the
case is decided under Order 8 Rule 10, the
Court has to write a judgment which must be in
conformity with the provisions of the Code or at
least set out the reasoning by which the
controversy is resolved.

        In AZIZ AHMED KHAN v. I.A.PATEL , a Full Bench of this 
Court, while dealing with an identical situation, at paragraph Nos.8
& 9, held as under:
8.       The irregularities committed by the trial
court do not stop at that. The judgment that it
has given does not conform to the provisions of
Rule 4 (2) of Order XX CPC at all. Whereas a
judgment shall contain a concise statement of
the case, the points for determination, and the
decision thereon, we search in vain for any of
these essentials in the impugned judgment. It is
no judgment at all. The provisions of Rule 4 (2)
have a set purpose. The form is designed to
ensure that while pronouncing the orders or
judgments. They should apply their minds to the
facts of the case and the points at issue and give
a reasoned judgment thereon so that not only
their own conscience may be satisfied but also
the litigants should have satisfaction that all
their evidence has been evaluated and their
contentions and arguments duly considered.
This is of vital importance inasmuch as the
whole edifice of confidence of the litigants in
Courts is built upon the quality of judgments.
The Courts, therefore, have to necessarily take
care that their judgments conform to the
provisions of law and are products of sound
reasoning. In the instant case the judgment of
the trial Court which we have extracted above is
no judgment at all. The appeal must be allowed
on that basis also.
9. Then again the so-called judgment of the
Court suffers from a further defect. It is based
upon material which is inadmissible in evidence.
In fact that is the main grievance of the
defendants and the case has before this Full
Bench for a pronouncement thereon as well. It is
no doubt true that the proceedings against the
defendant were set ex parte under Order IX,
Rule 6 CPC after issues were framed in the case.
But that does not mean that the defendant
should suffer decree by mere reason of his
absence. The fact that Rule 6 of Order IX CPC
permits the proceedings to be set ex parte does
not dispense with the proof of the case. The
meaning of "ex parte" being "in the absence of" ,
all that follows from the order setting
proceedings ex parte is that the proceedings
which had to continue otherwise in the presence
of the party may now be continued in his
absence.
        The absence of the defendants thus does not
dispense with the responsibility of the plaintiff to
prove his case to the satisfaction of the Court.
He has to discharge his onus in the same way as
he should have done in the presence of the
defendant. He has to prove his case with the
help of the material which is legal evidence. His
burdan is in no way lightened by the absence of
the defendant. In fact the responsibility of the
Court also has increased as it has to reach its
conclusions without the assistance of the
defendant who, if present, would have raised all
questions with regard to admissibility of
evidence and cross-examined the witnesses and 
advanced arguments in his favour. The Court
cannot pass a judgment in favour of the plaintiff
unless the suit is maintainable, the claim as set
up is established by the material on record and
the reliefs claimed can be lawfully granted.
       
        In the case on hand, the learned II Additional District Judge,
in the impugned judgment, except saying that he perused the
contents of the sworn affidavit of P.W.1 and also the documents
marked, did not make any endeavour to render the judgment in
accordance with the provisions of Order XX Rule 4 CPC. The mode
and manner  adopted by the learned Judge, for decreeing the suit,
is obviously not in conformity with the said provision of law but it is
also contrary to the law laid down by the Honourable Apex Court
and this Court in the above referred judgments. Therefore, the
impugned judgment and decree are liable to be set aside on the
said ground. Accordingly, point No.1 is answered in favour of the
defendants-appellants herein and against the plaintiffs.

Point No.2:
        It is the submission of the learned counsel for the defendants-
appellants herein that the learned Additional District Judge passed
the impugned judgment without being preceded by proper
compliance of the provisions of Order V Rules 19 & 20 CPC.

        In elaboration, it is further maintained by the learned counsel
for the defendants-appellants herein that, without making any
endeavour for due adherence to the provisions of Rules 19 &
20 CPC, the learned Judge decreed the suit ex parte. In the
direction of fortifying the said contention, the learned counsel has
placed on record the docket proceedings in O.S.No.125 of 2003.
The suit was admittedly presented on 01.09.2003. From
03.11.2003, awaiting service of summons on the defendants, the
Court adjourned the suit till 17.06.2004 and on 01.07.2004 the
Court recorded that the defendants 1 and 2 were called absent and
posted the case for steps on 02.07.2004. It is further evident from
the said docket proceedings that on 02.07.2004 the Court allowed
the substitute service petition by permitting the plaintiffs to publish
the notice in Prajasakthi daily newspaper of Hyderabad edition on
06.08.2004. Thereafter, on 06.08.2004, plaintiffs filed the
publication before the Court and the matter was adjourned to
13.08.2004 and on 13.08.2004 the defendants 1 and 2 were set
ex parte. Thereafter, the Court adjourned the matter from
25.08.2004 to 31.08.2004 and from 31.08.2004 to 26.10.2004 and
from 28.10.2004 to 17.11.2004 and, eventually, on 22.11.2004 the
Court heard the learned counsel for the plaintiffs and rendered the
impugned judgment and decree. 

        Rule 17 of Order V CPC deals with the procedure when the
defendant refuses to accept service or cannot be found. According
to the said rule, where the defendant or his agent or such other
person as aforesaid refuses to sign the acknowledgement, or where
the serving officer, after using all due and reasonable diligence,
cannot find the defendant [who is absent from his residence at the
time when service is sought to be effected on him at his residence
and there is no likelihood of his being found at the residence within
a reasonable time], and there is no agent empowered to accept
service of the summons on his behalf, or any other person on
whom service can be made, the serving officer shall affix a copy of
the summons on the outer door or some other conspicuous part of
the house in which the defendant ordinarily resides or carries on
business or personally works for gain, and shall then return the
original to the Court from which it was issued, with a report
endorsed thereon or annexed thereto stating that he has so affixed
the copy, the circumstances under which he did so, and the name
and address of the person (if any) by whom the house was
identified and in whose presence the copy was affixed.
       
        Rule 19 of Order V CPC deals with examination of the serving
officer which stipulates that where summons is returned under
Rule 17 CPC, the Court shall,  if the return under that rule has not
been verified by the affidavit of the serving officer, and may, if it has
been so verified, examine the serving officer on oath, or cause him
to be so examined by another Court, touching his proceedings, and
may make such further enquiry in the matter as it thinks fit; and
shall either declare that the summons has been duly served or
order such service as it thinks fit.

        Rule 20 of Order V CPC, which is crucial  for adjudication of
the issue in the present Appeal Suit, in clear and vivid terms,
stipulates that where the Court is satisfied that there is reason to
believe that the defendant is keeping out of the way for the purpose
of avoiding service, or that for any other reason the summons
cannot be served in the ordinary way, the Court shall order the
summons to be served by affixing a copy thereof in some
conspicuous place in the Court-house, and also upon some
conspicuous part of the house (if any) in which the defendant is
known to have last resided or carried on business or personally
worked for gain, or in such other manner as the Court thinks fit.
Rule 20 (1A) of Order V CPC also mandates that such publication
shall be made in a daily which has circulation in the relevant place.

        In the instant case, as correctly pointed out by the learned
counsel for the appellants and as evident from the docket
proceedings, the Court below did not make any exercise or
endeavour to adhere to the above mandatory requirements of law.
In this context, it may be appropriate to refer to the judgment of a
Full Bench of this Court in G.SHANMUKHI v. UTAKUR VENKATA-     
SRAMI REDDY AND ANOTHER  , wherein this Court, at paragraph     
No.8, held as under:
        Order 5 deals with the issue of summons to
the defendant in order to apprise him of the
institution of the suit against him so that he
might appear and answer the claim. Rule 9 of
that order prescribes direct service on the
defendant or upon an agent empowered to
accept service on his behalf. Sub-rule (3) thereof
provides alternatively for service by registered
post prepaid for acknowledgment. Rule 12
directs that wherever it is practicable, service
shall be made on the defendant in person,
unless he has an agent empowered to accept 
service, in which case service on such agent
would be sufficient.
        Rules 13 and 14 enact that summons may be 
served on a manager or agent of the Defendant
who carries on any business or work for him, if
the suit relates to such business or work, or an
agent of the Defendant in charge of any
immovable property, if the suit seeks a relief
respecting it. In a case where, the Defendant is
absent and has no agent empowered to accept 
service, service may also be made on any adult
male member of the family of the Defendant who
is residing with him, as provided by Rule 15.

        The summons is either to be delivered or
tendered to the Defendant, his agent or an adult
member of his family. Where they refuse to sign
an acknowledgment of service, the procedure to
be followed is prescribed by Rule 17, while
Rule 18 describes the procedure to be adopted
when the summons has been actually served on 
any one of them. Then follows Rule 20 which
provides for substituted service in these terms:

(1). Where the Court is satisfied that there is
reason to believe that the Defendant is keeping
out of the way for the purpose of avoiding
service, or that for any other reason the
summons cannot be served in the ordinary way,
the Court shall order the summons to be served
by affixing a copy thereof in some conspicuous
place in the court-house, and also upon some
conspicuous part of the house (if any) in which
the Defendant is known to have last resided or
carried on business or personally worked for
gain, or in such other manner as the Court
thinks fit.

(2). Service substituted by order of the Court
shall be as effectual as if it had been made on
the Defendant personally.
It is manifest that these several modes of service
attempt to reconcile the need for bringing home
to the Defendant knowledge of the suit with the
practical necessity of proceeding as early as
possible with its trial. Where these rules of
service are observed, there would generally be
good reason for supposing that the Defendant
became aware of the institution of the suit,
though it does not necessarily follow that he
actually did.

It is possible that even in a case of personal
service or service upon an agent, etc., there may
be mistaken identity, and the person served may
not be the Defendant or his agent. The
Defendant when he comes to know of the suit or
the decree passed therein may in such a case 
approach the Court for relief under Order 9,
Rule 13, Code of Civil Procedure (CPC), and
point out that he has not been 'duly served.

It is seen that in the case of substituted service,
there are two conditions prescribed before it can
be resorted to, viz., that the Court must be
satisfied either (1) that there is reason to believe
that the Defendant is keeping out of the way for
the purpose of avoiding service, or (2) that for
any other reason the summons cannot be served 
in the ordinary way. The satisfaction of the
Court in each of these cases is brought about by
representations of the Plaintiff usually made by
an affidavit. If, of course, the Defendant has
been deliberately keeping out of the way and
substituted service is ordered in such a case, it
certainly would be 'due' service.

A party cannot close his eyes and complain that
he is unable to see. But, if on the other hand the
Defendant is not really keeping out of the way at
all and the Court is only induced to believe that
he is, by the one-sided representation of the
Plaintiff, it is clear that the service that is then
substituted cannot be regarded as "due" service.
Therefore when the question arises as to
whether in a particular case, substituted service
obtained from the Court is or is not "due"
service, it will have to be determined by
ascertaining whether the representations made
to the Court by the Plaintiff were not true, that
is to say, whether the Defendant could be
presumed in the circumstances, to have or had
actual knowledge.

Of course, substituted service will not be
directed unless the Court is satisfied as to the
existence of one or the other conditions specified
In the rule. But a mere note upon the record to
that effect is not conclusive against the
Defendant though in the absence of any other
practicable alternative the Court must proceed
upon the looting, for the time being, that the
service is as effectual as personal service.

This effectuality is only for the purpose of
enabling the Court to go on with the suit. But,
its-effectuality against the Defendant depends
solely on whether he really avoided service or
whether as a matter of fact he came to know of
the suit otherwise. These facts will have to be
determined by the Court to which application is
made to Bet aside an ex parte decree.

        The material available on record, in clear and vivid terms,
reveals that the Court below did not adhere to the mandatory
provisions of Order V CPC. On this ground also the impugned
judgment is liable to be set aside. Accordingly, point No.2 is also
answered in favour of the defendants-appellants herein.
Point No.3:
        In the result, the Appeal Suit is allowed, setting aside the
judgment and decree, dated 22.11.2004, in O.S.No.125 of 2003, 
passed by the learned II Additional District Judge, Ranga Reddy
District at L.B.Nagar, Hyderabad and the said suit-O.S.No.125 of
2003 is remanded to the Court below for fresh enquiry and for
rendering judgment, in accordance with law, after giving
opportunity to all the stakeholders.

      As a sequel thereto, miscellaneous Petitions pending, if any,
in this Appeal Suit, shall stand closed. There shall be no order as to
costs.
__________________ 
 A.V.SESHA SAI,J 
18th December, 2017

divorce petition with custody petition, = Even custody remained with the mother, right of the father to see the children at the intervals cannot be ignored and as per the Halsburys law of England referred supra the father and mother got equal right to shower their love and affection to the children and as held in Rosy Jacob supra the Court dealing with custody and guardianship matters and the disputes between the father and mother in relation to the custody of the children is expected to strike a just and proper balance on the rights, requirements and sentiments.- the order of the lower Court in allowing the petition to the extent of permitting the father of the children to see and interact with the children on every Sunday between 10 AM and 12 Noon before the Secretary, District Legal Services Authority, City Civil Court, Hyderabad, no way requires interference, but for to cooperate even by the mother of the child to implement the order instead of driving the Family Court to implement with legal coercion by invoking the provisions of Sections 25, 26 and 40 to 45 of Guardians and Wards Act.

HONBLE DR. JUSTICE B. SIVA SANKARA RAO       

CIVIL REVISION PETITION No.6852 of 2017   

21-12-2017

D.N. Manimanjari Petitioner 

S. Virupaksheswara Rao .Respondent   

Counsel for the petitioner:Smt. S. Vani
               
Counsel for the respondent:Ms. G. Sri Devi

<GIST:
       
>HEAD NOTE:   

? Cases referred
1.1996 (3) ALD-816 (DB)
2.(1973)1 SCC 840
3.(2001)8 SCC 5
4.(2001)4 SCC 71
5.(2000)6 SCC 598


HONBLE DR. JUSTICE B. SIVA SANKARA RAO       

CIVIL REVISION PETITION No.6852 of 2017   

ORDER: 
      The revision petitioner is no other the wife of the revision
respondent.  The O.P.No.1084 of 2013 was filed by the revision
petitioner by name Smt. D.N. Manimanjari, advocate as per the
revision cause title, against her husband by name
S.Virupakshewara Rao, for divorce under Section 13 of Hindu
Marriage Act and therein she also sought for permanent custody
of the minor children i.e., Master S. Pradyumna born on
03.09.2003 and baby S.Pravalika born on 22.05.2006 and also
sought for permanent alimony of Rs.25,00,000/- and Rs.50,000/-
per month towards maintenance and education expenses of the 2 
minor children and for costs.
      The said divorce petition with custody petition, permanent
alimony and maintenance reliefs was filed on 07.08.2013 and the
same is under contest.  She also filed it appears DVC.No.58 of
2014.  In the pending DVC, Crl.M.P.No.1605 of 2014 filed by her
husband under Section 21 of PWDV Act seeking visitation rights
of the 2 children.  On contest by order dated 24.03.2016, the
learned IV Metropolitan Magistrate, Hyderabad, dismissed the
petition while saying relationship not in dispute and the 2
children are staying with mother who are away to the petitioner
and the 2 children were when interviewed as to willing to meet
their father, they stated they are not interested and thereby they
cannot be compelled to meet their father to consider his request
for visitation rights, but for to decide in a custody petition in
considering the interest of the children and thereby without
consent of children he cannot direct the children to visit their
father.  Leave about the correctness of the order and any appeal
filed under Section 29 of PWDV Act against it or not, even from
the very order that is not the be all and end all in considering any
entitlement to custody and visitation rights or not.  That order in
DVC case was dated 24.03.2016.  The father of the children filed
in the main divorce-cum-custody-cum-permanent alimony and 
maintenance petition supra, I.A.No.534 of 2014 seeking visitation
of rights of children on every Saturday and Sunday.  It is in
saying the mother of the children who is his wife not allowing him
to see the children for the last one year which swindles the love
and affection of the children towards him and vice versa and he is
liking the children a lot and he is curious of seeing them a lot.
      The counter filed in opposing by mother of the children with
whom the children are is with the contest that he never tried to
reach the children nor expressed love and affection and was
arrogantly behaving with the children and even beating cruelly
and threatening them with dire consequences and the son got
disturbed and went in depression and was treated by psychiatrist
and the children are very much afraid of the behaviour of the
father and are reluctant to interact with their father on account of
previous experience hence to dismiss the petition.  From that
contest by impugned order dated 06.10.2017, the learned Judge
Family Court, Hyderabad, permitted the father of the children to
see and interact on every Sunday between 10 AM and 12 Noon 
before the Secretary, District Legal Services Authority, City Civil
Court, Hyderabad and with observations in support of that order
that the main petition O.P.No.1084 of 2013 is under contest and
evidence is in progress since coming for respondents evidence
after petitioners evidence recorded and it may consume some
more time for its disposal.  The children are in the care and
custody of the mother and the petitioner being the father of the
children apart from natural guardian is also entitled to see and
interact with the children to share love and affection and such
interaction and sharing of love and affection would go long way
for healthy growth and nourishment of children and it gives
encouragement and motivation to the children besides acquire
knowledge by sharing the love and affection of their father equally
which is like the affection they are sharing with the mother and
thereby entitled to that limited visiting rights.  It is impugning the
same, present CMA is filed by mother of the children with the
contentions that the impugned order of the lower Court is
unsustainable, contrary to law, even doctor advice the father of
the children not to confront the child until get back to normalcy
since in disturbed condition, it was not considered by the lower
Court and the son is studying 9th class and daughter is studying
7th class.  The father of the children never felt any responsibility
in up bringing the 2 children and not even paid a single pie for
the past 3 years and already in DVC case for the visitation rights
sought, it was ended in dismissal.  There was an order in DVC
case exparte for payment of interim maintenance and it is under
execution and with great difficulty paid some time and stopped
for past 3 months and when the visitation rights of the children
application in I.A.No.534 of 2014 pending before the Court since
past 2 years all of a sudden in allowing the same when the matter
is in progress of trial is also contended as unsustainable that too
even children are expressing their unwillingness as can be seen
from the order in DVC case and the learned Judge of the Family
Court did not even examined the children of their views before
ordering the visitation rights and thereby the order is liable to be
set aside.
      The learned counsel for the revision petitioner, mother of
the children, in support of the grounds urged in the revision
reiterated the same impugning the order of the lower Court.
Whereas the learned counsel for the revision respondent/father of
the children supported the order of the lower Court in saying, but
for no separate appeal, the lower Court itself should have been
granted more time for spending with the children in providing the
visitation rights and thereby there is nothing to interfere with the
order of the lower Court and the CMA is liable to be dismissed.
      Heard both sides and perused the material on record.
      Before coming to the facts, it is necessary to mention on the
scope of law that custody is different from guardianship though
custody can be continued with the guardian generally as held by
a Division Bench of this Court in Mohd.Shaharyarkhan V.
Hussain Khan .  In fact, the Apex Court in Rosy Jacob V. Jacob
A.Chakramakkal  at page 855 Para 15 observed as follows:
15. .  The children are not mere chattels: nor are
they mere playthings for their parents.  Absolute
right of parents over the destinies and the lives of
their children has, in the modern changed social
conditions, yielded to the considerations of their
welfare as human beings; so that they may grow up
in a normal balanced manner to be useful members
of the society and the guardian court in case of a
dispute between the mother and the father, is
expected to strike a just and proper balance between
the requirements of welfare of the minor children and
the rights of their respective parents over them.
      In Halsburys Laws of England the law pertaining to the
custody of children has been stated at Para No.809 that
Wherein any proceedings before any Court, the
custody or upbringing of a minor is in question, the
Court, in deciding that question, must regard the
welfare of the minor as the first and paramount
consideration, and must not take into consideration
whether from any other point of view the claim of the
father in respect of such custody or upbringing is
superior to that of the mother, or the claim of the
mother is superior to that of the father.  In relation to
the custody or upbringing of a minor, a mother has the
same rights and authority as the law allows to a father,
and the rights and authority of mother and father are
equal and are exercisable by either without the other.
      It is true in Bimlenda Kumar Chatterjee V. Dipa
Chatterjee  the apex Court held that humanitarian approach is
necessary for solving the disputes regarding custody and
guardianship and it was held that even custody retained with
mother, the right of father to see the child at intervals cannot be
ignored.
      In R.V.Srinath Prasad V. Nandamuri Jaya Krishna  it
was also held that since custody matters are sensitive issues
involving emotions of parties concerned, the Courts have to strike
a balance between the emotions and the welfare of minor, which
is a matter of greater importance as held in Jai Prakash
Khadria V. Shyam Sunder Agarwalla . 
      The fact that in the pending DVC case, the visiting rights of
the children sought by the father dismissed is not be all and end
all for such an order is even prone to an appeal under Section 29
of DVC Act before the Court of Sessions and from the observation
therein as referred supra of such visitation matter to be decided
in the custody petition pending in the matrimonial lis and for the
present children expressed unwillingness to go to the father not
chosen to give visitation rights.  Apart from even coming to the
counter contentions in this petition before the lower Court of the
son got disturbed and went in depression and needs treatment of
Psychiatrist or children afraid of the so called psychic behaviour
of the father and reluctant to interact from the alleged previous
experience concerned, there is basically but for the averments
including in the main divorce petition no any record of the father
of the children is a psycho or sadist much less to appreciate any
argument in this revision in this regard.  It is also the duty of the
mother to convince the children who are with her for a little while
for few hours once in a week or so to go and spend with the father
of the children as what is provided even from the order of the
lower Court is to spend few hours before the Legal Services
Authority and not even of taking away the children by the father
to somewhere.  Even from the grounds of the revision urged about
the boy underwent treatment under Psychiatrist Dr. Lakshmi
Pingali and counseled by Dr. Jayanthi at Roshini Counselling
centre and that is not a ground to refuse once in a week few
hours by the father to spend with the children to shower the love
and affection.  In fact the Apex Court in Bimlendra Kumar
Chatterjee supra held that the Court has to adopt humanitarian
approach necessary for solving the disputes regarding custody
and guardianship.  Even custody remained with the mother, right
of the father to see the children at the intervals cannot be ignored
and as per the Halsburys law of England referred supra the
father and mother got equal right to shower their love and
affection to the children and as held in Rosy Jacob supra the
Court dealing with custody and guardianship matters and the
disputes between the father and mother in relation to the custody
of the children is expected to strike a just and proper balance on
the rights, requirements and sentiments.
      Having regard to the above, the order of the lower Court in
allowing the petition to the extent of permitting the father of the
children to see and interact with the children on every Sunday
between 10 AM and 12 Noon before the Secretary, District Legal
Services Authority, City Civil Court, Hyderabad, no way requires
interference, but for to cooperate even by the mother of the child
to implement the order instead of driving the Family Court to
implement with legal coercion by invoking the provisions of
Sections 25, 26 and 40 to 45 of Guardians and Wards Act. 
      Accordingly and in the result, the Civil Revision Petition is
dismissed.
      Consequently, miscellaneous petitions, if any shall stand
closed.  No costs.
_____________________________________     
JUSTICE Dr. B.SIVA SANKARA RAO     
Date: 21.12.2017