# 63 2 UNION OF INDIA v. ORIENT ENGG. & COMMERCIAL CO. LTD. & ANR

- **Citation:** [1978] 1 S.C.R. 632
- **Court:** Supreme Court of India
- **Decided:** 1977-10-07
- **Bench:** V. R. Krishna Iyer, Jaswant Singh, D. A. Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/63-2-union-of-india-v-orient-engg-commercial-co-ltd-anr-7304
- **Pages:** 3

## Headnote

1'Vitne.~s-Suntn1oni11g of a witness-Arbitrator or other quasi-judicial authority, whether covered by s. 121 of the Evidence Act-Duty of the Cou1t before
issuing sum1nons under Order XLVI Rule 3, C.P.C. read with s. 121
of the
Evidence Act when parties present a list of witnesses to be sun11no11ed.
Respondent Nd. 1 filed, under Order XVI Rules 1 and 2 read \Vith s. 151,
C.P.C., a list of witnesses to be summoned includirig the Arbitrator \Vho made
an a-w·ard in a matter betwee_n the appellant and the respondent No. 1.
The
Registrar of the High Court in the routine course granted sumn1ons '~'ithout
satis'fying himself as to the sufficiency of cause to summon the arbitrator as
required under Order XVI Rule 3, C.P.C. An objection petition u/s. 151, C.P.C.
filed before the learned Judge of the High Court against the orders of the
Registrar was dismissed.
Allowing the appeal, the Court,
HELD : ( 1) It is not right that every one who is included in the witness
list is automatically summoned, but the true rule is that if grounds are made
out for su1nmoning a witness, he will be called. The court must realise that
its process should be used sparingly and after careful deliberation if the arbitrator
should be brought into the witness box. If a party has a case of 1nala {ides
and makes out prin1a facie that it is not a frivolous charge or has other reasonably relevant matters to be brought out, the court may, in given circumstances,
exercise its power to summon even an arbitrator because nobody is beyond the
reach of truth or trial by court. [634 A-B, C-DJ
(2) Courts should bear in mind the reason behind s. 121 of the Evidence
Act when invited to issue summons to an arQitrator. It will be very embarrassing and in many cases objectionable if every quasi-judicial authority or tribunal
were put to the necessity of getting into the witness box and testify as to what
¥.'eighed in his mind in reaching his verdict. The slightest attempt to get to
the materials of his decision, to get back to his mind and to examine him
as to why and how he arrived at a particular decision should be immediately
and ruthlessly excluded as unreasonable. When an arbitrator has given
an
award, if grounds justifying his·1 being ca11ed as a witness are affirmatively made
out, the court may exercise its powers--0therwise not.
In the instant case the court has not approached· the question from
the
proper ~rspective and on the materials on record, there is no justification for
the examination of the arbitrator. [633 C-D, HJ
Khub Lal v. Bisluunbhar Sa'1ai A.I.R. 1925 Allahabad 103, approved.
[The Court left open to the High Court to issue necessary proce$$ on
a
fresh application stating why he wants to examine the arbitrator, if and when
"°'
rnade by the respondent.1

## Text

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63 2
UNION OF INDIA
v.
ORIENT ENGG. & COMMERCIAL CO. LTD. & ANR.
1
October 7, 1977
[V. R. KRISHNA IYER, JASWANT SINGH AND D. A. DESAI, JJ.]
1'Vitne.~s-Suntn1oni11g of a witness-Arbitrator or other quasi-judicial authority, whether covered by s. 121 of the Evidence Act-Duty of the Cou1t before
issuing sum1nons under Order XLVI Rule 3, C.P.C. read with s. 121
of the
Evidence Act when parties present a list of witnesses to be sun11no11ed.
Respondent Nd. 1 filed, under Order XVI Rules 1 and 2 read \Vith s. 151,
C.P.C., a list of witnesses to be summoned includirig the Arbitrator \Vho made
an a-w·ard in a matter betwee_n the appellant and the respondent No. 1.
The
Registrar of the High Court in the routine course granted sumn1ons '~'ithout
satis'fying himself as to the sufficiency of cause to summon the arbitrator as
required under Order XVI Rule 3, C.P.C. An objection petition u/s. 151, C.P.C.
filed before the learned Judge of the High Court against the orders of the
Registrar was dismissed.
Allowing the appeal, the Court,
HELD : ( 1) It is not right that every one who is included in the witness
list is automatically summoned, but the true rule is that if grounds are made
out for su1nmoning a witness, he will be called. The court must realise that
its process should be used sparingly and after careful deliberation if the arbitrator
should be brought into the witness box. If a party has a case of 1nala {ides
and makes out prin1a facie that it is not a frivolous charge or has other reasonably relevant matters to be brought out, the court may, in given circumstances,
exercise its power to summon even an arbitrator because nobody is beyond the
reach of truth or trial by court. [634 A-B, C-DJ
(2) Courts should bear in mind the reason behind s. 121 of the Evidence
Act when invited to issue summons to an arQitrator. It will be very embarrassing and in many cases objectionable if every quasi-judicial authority or tribunal
were put to the necessity of getting into the witness box and testify as to what
¥.'eighed in his mind in reaching his verdict. The slightest attempt to get to
the materials of his decision, to get back to his mind and to examine him
as to why and how he arrived at a particular decision should be immediately
and ruthlessly excluded as unreasonable. When an arbitrator has given
an
award, if grounds justifying his·1 being ca11ed as a witness are affirmatively made
out, the court may exercise its powers--0therwise not.
In the instant case the court has not approached· the question from
the
proper ~rspective and on the materials on record, there is no justification for
the examination of the arbitrator. [633 C-D, HJ
Khub Lal v. Bisluunbhar Sa'1ai A.I.R. 1925 Allahabad 103, approved.
[The Court left open to the High Court to issue necessary proce$$ on
a
fresh application stating why he wants to examine the arbitrator, if and when
"°'
rnade by the respondent.1
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 1296 ilf 1977.
,,
Appeal by Special Leave from the Judgment and Order _,, dated
25-1-77 of the High Ci;iurt of Delhi at New Delhi in T. No. 2253 of 1976
in Suit No. 459-A of 1974.
r1
Soli J. Sorabji, Addi. Solicitor General E. C. Agarwala anq G11'ish
Chandra for the Appellant.
(
UNION v. ORIENT ENGG. & COMMERCIAL co. (Krishna Tyer, /.) 633
Bakshi Shivcharan Singh and H. S. Marwah for Respondent No. 1
The Order of the Court was delivered by
KRJ'SHNA IYER, J.-We live and learn from counsel's arguments each
day and in this case we were asked to unlearn.
Counsel for the appellant has objected, in this appeal, to the examination, as a witness, of an arbitrator who has ·given his award on a dispute
between the appellant and the .!st respondent.
His contention is that,
on broad principle and public policy, it is highly obnoxious to summon an
arbitrator or other adjudicating body to give evidence in vindication of
his award.
This is a wholesome principle as is evident from s. 121
of the Indian. Evidence Act.
That provision states that no Judge or
Magistrate shall, except upon the special order of some court to which
he is subordinate be compelled to answer any questions as to his own
conduct in court as such Judge or Magistrate or as anything which came
to his knowledge in court as such Judge or Magistrate, but he may be
examined as to other matters which occurred in his presence whilst he
was so acting.
Of course, this section does not apply proprio vigore
to the situation present here.
But it is certainly proper for the court
to bear in mind the reason behind this rule when invited to issue summons to an arbitrator.
Indeed, it will be a very embarrassing and, in
many cases, objectionable if every quasi-judicial authority or tribunal
were put to the necessity of geeting into the witness box and testify as
to what weighed in his mind in reaching his verdict.
We agree with
the observations of Walsh, A.C.J. in Khub Lal v. Bishambhar Sahai(')
where the learned Judge has pointed out that the slightest attempt to get
to the materials of his decision,, to get back to his mind and to examine
him as to why and how he arrived at a particular decision should be im-·
mediately and ruthlessly excluded as undesirable.
In this case, a list of witnesses was furnished by the !st respondent
and the Registrar of the High Court, in the rou'ine course, granted summons, perhaps not adverting as to why the arbitrator himself was being
summoned.
That was more or less mechanical is evident from the fact
that the reason given for citing the arbitrator is the omnibus purpose of
proving the case of the party-not the specific ground to be made out.
We should expect applica,!i_on of the mind of the Registrar to the particular facts to be established by a witness before the coercive process
of
the court is used.
It is seen that the learned Judge IYefore whom objection was taken under s. 151 C.P.C. to the summons to the arbitrator
dismissed the petition on the score that he saw no ground to refuse to
summon the arbitrator Ma witness.
The approach should have been
the other way round.
When an arbitrator has given an award, if grounds
justifying his being called as a witness are affirmatively made out, the
coort may exercise its power, otherwise not.
It is not right that every
one who is included in the witness list is automatically summoned; but
the true rule is that, if grounds are made out for summoning a witness
he will be called; not if the demand is belated, vexatious or
frivolous.
Thus the court also has not approached the question from the proper
•
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(l) A.l.R. 1925 All. 103.
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634
SUPREME COURT REPORTS
[1978] 1 s.c.R.
perspective.
If arbitrators are summoned mindlessly whenever applications for setting aside the award are enquired into, there will be few to
undertake the job.
The same principle holds good even if the prayer
is for modification or for remission of the award.
The short point is
that the court must realise that its process should be used sparingly and
after careful deliberation, if the arbitrator should be brought iuto the
witness box.
In no case can he be summoned merely to show how he
arrived at the conclusions he did.
In the present case, we have been
told that the arbitrator had gone wrong in his calculation and this had to
be extracted from his mouth by being examined or cross-examined. We
do not think that every Munsif and every Judge, every Commissioner and
every arbitrator has to undergo a cross-examination before his judgment
or award can be upheld by the appellate court.
How vicious such an
approach would be is apparent on the slightest reflection.
Of course, if a party has a case of 11U1/a {ides and makes out prima
jacie that it is not a frivolous charge or has other reasonably relevant
matters to be brought out the court may,, in given circumstances, exercise
its power to summon even an arbitrator, because nobody is beyond the
reach of truth or trial by Court. In the present case, after having heard
counsel on both sides, we are not satisfied that on the present material
there is justification for the exantination of the arbitrator.
We therefore
set aside the order.
However, we make it clear that if the court is convinced, after
hearing the respondent on a fresh application stating why he want to
examine the arbitrator, it is still open to it to issue the necessary
process.
Such a step must be a deliberate step and not a routine
E
summons.
With these observations, we allow the appeal.
Th()re ·will.
be no order as to costs.
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Appeal allowed.
\