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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: ORIENT ENGG. & COMMERCIAL CO.  LTD. & ANR.

DATE OF JUDGMENT07/10/1977

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SINGH, JASWANT DESAI, D.A.

CITATION:  1977 AIR 2445            1978 SCR  (1) 622  1978 SCC  (1)  10

ACT: Witness-Summoning  of a witness-Arbitrator or  other  quasi- judicial  authority,  whether  covered  by  s.  121  of  the Evidence Act-Duty of the Court before issuing summons  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 summoned.

HEADNOTE: Respondent  No. 1 filed, under Order XVI Rules 1 and 2  read with  s.  151, C.P.C., a list of witnesses  to  be  summoned including  the  Arbitrator  who made an award  in  a  matter between  the  appellant  and  the  respondent  No.  1.   The Registrar  of the High Court in the routine  course  granted summons without satisfying 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  summoning  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 mala fides and  makes out  prima  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-D] (2)Courts should bear in mind the reason behind s. 121  of the  Evidence  Act  when  invited to  issue  summons  to  an arbitrator.  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 weighed 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

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an arbitrator has given an award, if grounds justifying  his being  called as a witness are affirmatively made  out,  the court may exercise its powers-otherwise not. In  the  instant  case  the court  has  not  approached  the question from the proper perspective and on the materials on record, there is no justification for the examination of the arbitrator. [633 C-D, H] Khub  Lal  v. Bishambhar Sahai A.I.R.  1925  Allahabad  103, approved. [The  Court left open to the High Court  to  issue-necessary Process  on  a  fresh application stating why  he  wants  to examine the arbitrator, if and when made by the respondent.]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1296 of1977. Appeal by Special Leave from the Judgment and Orderdated 25-1-77  of the High Court of Delhi at New Delhi in  T.  No. 2253of 1976 in Suit No. 459-A of 1974. Soli J. Sorabji, Addl.  Solicitor General E. C. Agarwala and Girish Chandra for the Appellant.  633 Bakshi Shivcharan Singh and H. S. Marwah for Respondent  No. 1 The Order of the Court was delivered by KRISHNA 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 1st 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 toother   matters which  occurred in his presence whilst he was so acting.  Of course,  this--section does not apply proprio vigore to  the situationpresent here.  But it is certainly proper for  the court to bear in mindthe  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 greeting 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(1) 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 immediately and ruthlessly excluded as undesirable. In  this case, a list of witnesses was furnished by the  1st respondent  :and  the Registrar of the High  Court,  in  the routine 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 application of  the

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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  before 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  as  a 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 court 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  be will  be called; not if the demand is belated, vexatious  or frivolous.   Thus  the  court also has  not  approached  the question from the proper (1)A.I.R. 1925 All. 103. 634 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 into 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 mala fides and makes out prima  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.  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 examination  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  summons.   With  these observations,  we allow the appeal.  There will be no  order as to costs. Appeal allowed., 635