1. This revision is directed against the order dated February 19, 1990, of the Subordinate Judge 1st Class, Jagadhri.
2. Facts relevant for the decision of the revision petition may be briefly stated as under:
Murti Mari Guga Pir Mandir instituted a suit for permanent injunction through Lal Chand Mohtamim restraining the defendants Shri Badir and others from interfering in the actual and physical possession of the plaintiffs property, comprising temple of the Murti in Khasra No. 181 min(l Kanal 19 Marlas) in the area of, Chhachhrauli, in any manner whatsoever. The suit was instituted on November 19, 1985. The written statement was filed on January 7, 1986 and issues were framed on February 28, 1986. During the pendency of the suit, both the parties made an application to the Court on April 22, 1989, that the dispute may be referred to the arbitrators and that their decision would be final and binding on both the parties. Two arbitrators were named by the plaintiffs and an equal number by the defendants. The decision of the majority was to be the final decision of the arbitrators. The plaintiff named S/Shri Mohan Lal and Faqir Chand as the arbitrators, while the defendants named S/Shri Ved Parkash and Brij Mohan. Both the arbitrators named by the plaintiff made an application to the Court refusing to act as arbitrators. Their statements were recorded by the Court and the following short order was passed:
"Defendants file reply to the application. Case is adjourned for plaintiffs evidence to 1-6-1990 and argument on application for disobedience."
Defendant No. 4 Pritam Chand has filed this revision against the said order.
3. Learned counsel for the respondent took a preliminary objection that the revision is not competent. The contention is that the order in question supersedes an arbitration and it is an appealable order under S. 39(1)(i) of the Arbitration Act, 1940. It was further submitted by the learned counsel that the present revision cannot be considered as an appeal, firstly, because the period of limitation for filing the appeal was only 30 days, and, secondly, the appeal under Section 39 from the instant order lay to the Court of the District Judge and not to the High Court. Reference was made by the learned counsel to Gulab Singh Johri Mal v. M/s. Dharampal Dalip Singh, AIR 1936 Lahore 538 and M.H. Tejani v. Mrs. Kulsumbai M. Jetha, AIR 1967 Bombay 300, for the proposition that the order superseding the award is an appealable order under Section 39(1)(i) of the Arbitration Act and no revision lies therefrom. He also referred to Rajiv Kumar Sharma v. Smt. Bimla Rani Aggarwal etc., 1984 Rev LR 350, to show that a revision cannot be treated as an appeal because doing so would render the provisions of sub-section (2) of Section 115 of the Code of Civil Procedure nugatory. I do not find any force in the preliminary objection. Under Section 39(1)(i) appeal lies against an order 'superseding an arbitration'. The order passed in the instant case has been reproduced above. In my view, the order does not amount to an order superseding the arbitration. Reasons follow.
4. Faced with this difficulty, learned counsel for the respondent contended that the learned trial Court had fixed the case for plaintiffs evidence, issues having already been framed. The only inference by necessary implication was that the arbitration had been superseded. No doubt, an order superseding the arbitration can be passed expressly as well as by necessary implication, in the facts of the present case, I do not find that the Court passed an order superseding the arbitration. Elaborate provisions have been made in Sections 8(1)(b). 9 and 12 to fill the vacancy where the arbitrator or arbitrators refuse to act as such. No such steps were taken nor was it indicated in the order that it was not possible to have the difference decided through the instrumentality of arbitration as agreed to by the parties. No doubt, the proviso to Section 25 vests a discretion in the Court to supersede the arbitration instead of filling up the vacancies in accordance with Sections 8, 9 and 12 etc. I am unable to read in the impugned order that the trial Court exercised that discretion against filling up the vacancies in accordance with law. The preliminary objection is, therefore, repelled.
5. The next contention of the learned counsel for the respondent is that there was no illegality committed by the Court and, therefore, there was no case for interference in revision. There is no force in this contention. The learned trial Court has clearly fallen into a grave error in fixing the case for plaintiffs evidence without passing the requisite order superseding the arbitration as also without giving any indication whatsoever that it was not either possible or expedient to fill up the vacancies. No doubt, the proviso to Section 25 vests a wide discretion in the Court to supersede arbitration, the power is required to be exercised with caution and circumspection. In the impugned order, however, I fail to find that the Court purported to supersede the arbitration.
6. For the foregoing reasons, the revision is allowed and the order in question is set aside. It is directed that the Court shall pass necessary order in the light of the observations made herein above and proceed further according to law. Parties through their learned counsel are directed to appear in the trial Court on August 26, 1991, for further proceedings.
7. Revision allowed.