# Kamta Prasad v. Union of India & Ors

- **Citation:** (2025) 5 ILRA 1705
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-02
- **Case number:** Matters Under Article 227 No. 4101 of 2025
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamta-prasad-v-union-of-india-ors-53331
- **Pages:** 5

## Headnote

Civil Law-The Constitution of India,
1950-Article 227 - The Code of Civil
Procedure, 1908-Order XLI Rule 27 -
The Arbitration and Conciliation Act,
1996-Section 34--- The court below had
wrongly interpreted the provisions of Order
XLI Rule 27 as it is applicable in the case of
an appeal where the party to an appeal
makes an application for production of
additional evidence at appellate stage.
Section 34 is summary proceeding and is
not an appeal as court below has held. The
invocation of provisions of Order XLI Rule
27
by
court
below
in
rejecting
the
application
of
petitioner
is
wholly
misconceived.
It
seems
that
court
concerned does not know the scope of
Order XLI Rule 27 CPC as well as Section 34
of the Act of 1996--- The court below on
the wrong assumption has proceeded to
reject the application on the basis of Order
XLI Rule 27 CPC--- matter is remitted back
to court below to consider the application of
petitioner afresh. (E-15)

List of the cases referred-:
1706 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

5 All. Kamta Prasad Vs. Union of India & Ors.
1705

Conclusion

123. Thus, to sum up, I find that court
below
had
not
committed
any
error,
irregularity or illegality in granting leave to
institute the suit before the expiry of period of
notice under Section 80(2) CPC, as it was
never objected by the Government or its
officials defendant nos. 1 to 5 and revisionist/
defendant no. 6 being a private person is not
covered under the canopy of Section 80.

124. Further, the act of allowing
application under Order XXVI Rule 9 for local
investigation
and
appointing
Advocate
Commission has not caused any prejudice to
the revisionist as he has right to question the
same at the stage of Order XXVI Rule 10(2)
CPC before the report is confirmed and
admitted as an evidence and made part of the
record. Only one Commission had taken place
whose survey started on 19.11.2024 and
completed on 24.11.2024 at 11:00 a.m.

125. Lastly, in view of the finding
recorded above, present suit is not prima
facie barred by provisions of the Act of
1991, in fact, it has been filed seeking right
to access to property in dispute under
Section 18 of the Act of 1958 being a
protected monument.

126.
Considering
the
facts
and
circumstances of the case, I find that no
interference is required in the order dated
19.11.2024 passed by court below allowing
application Paper No. 3C granting leave to
institute suit and application 8C for
appointment of Commission for local
investigation.

127. Revision fails and is hereby
dismissed. Interim order stands vacated.
Suit to proceed. No order as to cost.
----------
(2025) 5 ILRA 1705
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2025

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Matters Under Article 227 No. 4101 of 2025
(CIVIL)

Kamta Prasad ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Keshav Hari Dixit

Counsel for the Respondents:
A.S.G.I., C.S.C., Sri Rajesh Kumar Jaiswal,
Ms. Sushmita Mukherjee, Sri Swetashwa
Agarwal

Civil Law-The Constitution of India,
1950-Article 227 - The Code of Civil
Procedure, 1908-Order XLI Rule 27 -
The Arbitration and Conciliation Act,
1996-Section 34--- The court below had
wrongly interpreted the provisions of Order
XLI Rule 27 as it is applicable in the case of
an appeal where the party to an appeal
makes an application for production of
additional evidence at appellate stage.
Section 34 is summary proceeding and is
not an appeal as court below has held. The
invocation of provisions of Order XLI Rule
27
by
court
below
in
rejecting
the
application
of
petitioner
is
wholly
misconceived.
It
seems
that
court
concerned does not know the scope of
Order XLI Rule 27 CPC as well as Section 34
of the Act of 1996--- The court below on
the wrong assumption has proceeded to
reject the application on the basis of Order
XLI Rule 27 CPC--- matter is remitted back
to court below to consider the application of
petitioner afresh. (E-15)

List of the cases referred-:
1706 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Emkay Global Financial Services Ltd. Vs
Girdhar Sondhi, AIR 2018 SC 3894

2. Alpine Housing Development Corp. Pvt. Ltd.
Vs Ashok S. Dhariwal & ors., AIR 2023 SC 558

3. Fiza Developers and Inter-Trade Pvt. Ltd.Vs
AMCI India Pvt. Ltd., (2009) 17 SCC 796

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. The land of petitioner was acquired
for road widening by National Highways
Authority of India (NHAI) invoking
Section 3A of National Highways Act,
1956 (hereinafter called as "the Act of
1956") in the year 2017. The competent
authority/Additional
District
Magistrate
made an award on 29.05.2018. An
objection was filed by petitioner against the
said
award
which
was
rejected
on
15.12.2021 and the award dated 29.05.2018
was confirmed.

2. Petitioner filed application under
Section
34
of
the
Arbitration
and
Conciliation Act, 1996 (hereinafter called
as "the Act of 1996") for setting aside the
arbitral award dated 29.05.2018 and
15.12.2021. During the pendency of the
said application, petitioner moved an
application for filing of certain documents
which were kept in some box and came to
his knowledge on 20.10.2024, which led to
filing of an application on 22.10.2024. The
court below by order impugned dated
09.12.2024 considering the said application
to be under Order XLI Rule 27 CPC has
rejected the same. Hence, the present writ
petition.

3. Learned counsel for the petitioner
submits that court below had wrongly
rejected the application holding it to be an
application under Order XLI Rule 27 CPC
as it was not filed during appellate
proceedings. Further, as the award was
made on 29.05.2018, the unamended
provision of Section 34(2)(a) would apply
and the party making the application may
file documents in support of his claim. He
has relied upon the decision of Apex Court
rendered in case of Emkay Global
Financial Services Limited vs. Girdhar
Sondhi, AIR 2018 SC 3894; MMTC Ltd.
vs. Vedanta Ltd., AIR 2019 SC 1168 and
Alpine
Housing
Development
Corporation Pvt. Ltd. vs. Ashok S.
Dhariwal and others, AIR 2023 SC 558.

4. Learned counsel appearing for
NHAI submitted that application moved for
additional evidence was not maintainable
and application has to be decided on the
basis of the record which was present
before the Arbitrator. Reliance has been
placed upon the decision of Apex Court in
case of Alpine Housing Development
Corporation Pvt. Ltd. (supra).

5. I have heard respective counsel for
the parties and perused the material on
record.

6.

The
short
controversy
for
consideration before this Court is as to
whether the court below had rightly
proceeded to reject the application filed by
petitioner holding it to be an application
under Order XLI Rule 27 CPC or not, and
also as to whether the provisions of
unamended Act of Section 34(2)(a) would
be applicable or not in the instant dispute.

7. Section 34 of the Act of 1996
provides for recourse against arbitral
award. By the amending Act 33 of 2019,
the words "furnishes proof that" were
deleted from sub-section (2)(a) of Section
34 and the words "establishes on the basis
5 All. Kamta Prasad Vs. Union of India & Ors.
1707
of the record of Arbitral Tribunal that"
were added w.e.f. 30.08.2019.

8. Prior to amendment of 2019, the
party making an application for setting
aside the arbitral award could have
maintained an application for bringing on
record documents relevant to determination
of issues arising under Section 34 by way
of affidavit, but post amendment the
arbitral award can only be set aside by
party making the application on the basis of
records of Arbitral Tribunal and no fresh
material can be brought on record. The
Hon'ble Apex Court in Emkay Global
Financial Services Limited (supra) while
dealing with pre amendment stage held as
under:-

"21. It will thus be seen that
speedy resolution of arbitral disputes has
been the reason for enacting the 1996 Act,
and continues to be the reason for adding
amendments to the said Act to strengthen
the aforesaid object. Quite obviously, if
issues are to be framed and oral evidence
taken in a summary proceeding under
Section 34, this object will be defeated. It is
also on the cards that if Bill No. 100 of
2018 is passed, then evidence at the stage
of a Section 34 application will be
dispensed with altogether. Given the
current state of the law, we are of the view
that the two early Delhi High Court
judgments [Sandeep Kumar v. Ashok Hans,
2004 SCC OnLine Del 106 : (2004) 3 Arb
LR 306] , [Sial Bioenergie v. SBEC
Systems, 2004 SCC OnLine Del 863 : AIR
2005 Del 95] , cited by us hereinabove,
correctly reflect the position in law as to
furnishing proof under Section 34(2)(a). So
does the Calcutta High Court judgment
[WEB Techniques & Net Solutions (P) Ltd.
v. Gati Ltd., 2012 SCC OnLine Cal 4271] .
We may hasten to add that if the procedure
followed by the Punjab and Haryana High
Court judgment [Punjab SIDC Ltd. v. Sunil
K. Kansal, 2012 SCC OnLine P&H 19641]
is to be adhered to, the time-limit of one
year would only be observed in most cases
in the breach. We therefore overrule the
said decision. We are constrained to
observe
that
Fiza
Developers
[Fiza
Developers & Inter-Trade (P) Ltd. v. AMCI
(India) (P) Ltd., (2009) 17 SCC 796 :
(2011) 2 SCC (Civ) 637] was a step in the
right direction as its ultimate ratio is that
issues need not be struck at the stage of
hearing a Section 34 application, which is
a summary procedure. However, this
judgment must now be read in the light of
the amendment made in Sections 34(5) and
34(6). So read, we clarify the legal position
by stating that an application for setting
aside an arbitral award will not ordinarily
require anything beyond the record that
was before the arbitrator. However, if there
are matters not contained in such record,
and are relevant to the determination of
issues arising under Section 34(2)(a), they
may be brought to the notice of the Court
by way of affidavits filed by both parties.
Cross-examination of persons swearing to
the affidavits should not be allowed unless
absolutely necessary, as the truth will
emerge on a reading of the affidavits filed
by both parties. We, therefore, set aside the
judgment [Girdhar Sondhi v. Emkay
Global Financial Services Ltd., 2017 SCC
OnLine Del 12758] of the Delhi High
Court and reinstate that of the learned
Additional District Judge dated 22-9-2016.
The appeal is accordingly allowed with no
order as to costs."

9. In Alpine Housing Development
Corporation Pvt. Ltd. (supra), the Apex
Court
was
also
considering
a
pre
amendment case and taking note of the
earlier
judgment
of
Emkay
Global
1708 INDIAN LAW REPORTS ALLAHABAD SERIES
Financial Services Limited (supra) and
Fiza Developers and Inter-Trade Private
Limited
vs.
AMCI
(India)
Private
Limited, (2009) 17 SCC 796 held that
prior to amendment of Section 34(2)(a), an
arbitral award could be set aside by court if
party making an application furnishes proof
and grounds set out in Section 34(2)(a) and
34(2)(b) are satisfied. However, subsequent
to amendment of Section 34(2)(a), the
words
"furnishes
proof"
have
been
substituted by the words "establishes on the
basis of record of the Arbitral Tribunal".
The Court further held that application
under Section 34 of the Act are summary
proceedings and an award can be set aside
only the grounds set out in Section 34(2)(a)
and 34(2)(b). As the object and reason of
enactment of the 1996 Act was speedy
resolution
of
arbitral
disputes,
the
amendment made in the Act was to
strengthen the aforesaid object. Thus, there
is no requirement under Section 34 for
framing of issues. If the issues are framed
and oral evidences are taken in summary
proceedings, the object will be defeated.
According to the Court, an application for
setting aside the arbitral award will not
ordinarily require anything beyond the
record that was before Arbitrator, however,
if there are matters not containing such
records and the relevant determination to
the issues arising under Section 34(2)(a),
they may be brought to the notice of the
Court by way of affidavits filed by both the
parties. The cross-examination of the
persons swearing in to the affidavits should
not be allowed unless absolutely necessary
as the truth will emerge from reading of
affidavits filed by both the parties. The
Court opined that in an exceptional case
being made out and if it is brought to the
notice of the Court on the matters not
containing the record of Arbitrator that
certain
things
are
relevant
to
the
determination of the issues arising under
Section 34(2)(a), then the party who has
assailed the award on the grounds set out in
Section 34(2)(a) can be permitted to file
affidavit in the form of evidence. Relevant
para 24 is extracted hereasunder:-

"24. The ratio of the aforesaid
three decisions on the scope and ambit of
section 34(2)(a) pre-amendment would be
that applications under sections 34 of the
Act are summary proceedings; an award
can be set aside only on the grounds set out
in section 34(2)(a) and section 34(2)(b);
speedy resolution of the arbitral disputes
has been the reason for enactment of 1996
Act and continues to be a reason for adding
amendments to the said Act to strengthen
the aforesaid object; therefore in the
proceedings under section 34 of the
Arbitration Act, the issues are not required
to be framed, otherwise if the issues are to
be framed and oral evidence is taken in a
summary proceedings, the said object will
be defeated; an application for setting
aside the arbitral award will not ordinarily
require anything beyond the record that
was before the arbitrator, however, if there
are matters not containing such records
and the relevant determination to the issues
arising under section 34(2)(a), they may be
brought to the notice of the Court by way of
affidavits filed by both the parties' the
cross-examination of the persons swearing
in to the affidavits should not be allowed
unless absolutely necessary as the truth
will emerge on the reading of the affidavits
filed by both the parties. Therefore, in an
exceptional case being made out and if it is
brought to the court on the matters not
containing the record of the arbitrator that
certain
things
are
relevant
to
the
determination of the issues arising under
section 34(2)(a), then the party who has
assailed the award on the grounds set out
5 All. Sukhdev Singh Majithiya & Ors. Vs. Bhavnesh Kumar Jindal & Ors.
1709
in section 34(2)(a) can be permitted to file
affidavit in the form of evidence. However,
the same shall be allowed unless absolutely
necessary."

10. In the instant case, it is an
admitted position to both the parties that
award was made on 29.05.2018 i.e. prior to
the amendment made in Section 34(2)(a)
which came into effect from 30.08.2019.
The application moved on 22.10.2024 by
petitioner reveals that documents which are
being tried to be placed on record by
petitioner was discovered on 20.10.2024.
Apart from this fact, no other compelling
reason has been given for admitting the list
of documents appended with the said
application.

11. However, the court below has
wrongly treated the application to be an
application under Order XLI Rule 27 CPC.

12. This Court finds that the court
below had wrongly interpreted the provisions
of Order XLI Rule 27 as it is applicable in the
case of an appeal where the party to an appeal
makes an application for production of
additional evidence at appellate stage. Section
34 is summary proceeding and is not an
appeal as court below has held. The
invocation of provisions of Order XLI Rule
27 by court below in rejecting the application
of petitioner is wholly misconceived. It seems
that court concerned does not know the scope
of Order XLI Rule 27 CPC as well as Section
34 of the Act of 1996.

13. The court below on the wrong
assumption has proceeded to reject the
application on the basis of Order XLI Rule
27 CPC.

14. Considering the facts and
circumstances of the case, the order
09.12.2024 is hereby set aside. The writ
petition stands partly allowed.

15. The matter is remitted back to
court below to consider the application of
petitioner afresh in the light of the decision
of Apex Court in case of Alpine Housing
Development Corporation (supra) &
Emkay
Global
Financial
Services
Limited (supra), within a period of two
months from the date of production of
certified copy of this order, strictly in
accordance with law.
----------
(2025) 5 ILRA 1709
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2025

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Matters Under Article 227 No. 11867 of 2024
(CIVIL)
With
Other Connected Cases

Sukhdev Singh Majithiya & Ors.
 ...Petitioners
Versus
Bhavnesh Kumar Jindal & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Adya Prasad Tewari, Sri Shubham
Dwivedi

Counsel for the Respondents:
Sri R.S. Dubey, Ms. Savita Dubey

Civil Law-The Constitution of India, 1950Article 227 - The Registration Act,1908Sections 17(1), 23 & 32 - The Code of Civil
Procedure, 1908-Order XII, Rule 6---
"Whether the judgment and decree of the year
1988 needs registration under Section 17(1) of
the Act of 1908 being the compromise decree or
otherwise?"---
Compromise
decree
dated