whether any case under Section 20(4) read with its proviso was made out by the parties or not? = we concur with the reasoning and the conclusion arrived at by the Courts below and accordingly hold that the tenant, having rightly suffered a decree for eviction on the ground contained under Section 20(2)(a), is not entitled to take the benefit of sub-section(4) of Section 20 because his case falls under the proviso to sub-section(4) by virtue of the fact that his son, who is member of family being a male lineal descendants as specified under Section 3(g)(ii) of the Act, has built his residential house in the same city and he is in its possession. The tenant can, therefore, shift in the said house once he is asked to vacate pursuant to eviction decree passed against him.

 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5903 OF 2012
Smt. Sudama Devi & Ors. ….Appellant(s)
VERSUS
Vijay Nath Gupta & Anr. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is filed by the legal representatives
of the defendant(tenant) against the final judgment
and order dated 14.03.2011 passed by the High
Court of Judicature at Allahabad in Civil Misc.Writ
Petition No.17758 of 1998 whereby the High Court
dismissed the petition filed by the defendant and
upheld the order dated 22.04.1998 passed by the
Additional District Judge-XI, Gorakhpur in Civil
Revision No.15 of 1997 by which he dismissed the
1
revision filed by the defendant and confirmed the
order dated 02.08.1997 passed by the Small Causes
Court in Small Cause Case No.42 of 1986.
2. In order to appreciate the issue involved in the
appeal, few relevant facts need to be mentioned
infra.
3. The appellants are the legal representatives of
original defendant - Chandrabhan Singh - who died
during the pendency of the civil suit whereas the
respondents are legal representatives of Parasnath
Gupta, Manager of the plaintiff-Shri Ramchander Ji,
owner of the suit house.
4. The plaintiff claiming to be the landlord of the
suit house filed a civil suit through his Manager
against the defendant-Chandrabhan Singh for his
eviction from the suit house. The plaintiff, inter alia,
alleged that Chandrabhan Singh was his monthly
tenant living in the suit house. It was alleged that
the defendant has all along been in arrears of rent
2
inasmuch as he failed to pay the monthly rent from
January 1977 onwards to the plaintiff.
5. It was further alleged that the defendant paid
a sum of Rs.656.25 to the plaintiff, which the
plaintiff adjusted against part of the arrears up to
May 1980. It was alleged that despite the
adjustment being made, the arrears still remained
unpaid and default in payment of monthly rent
continued to persist and hence notice for eviction
and demand of arrears of rent was given by the
plaintiff to the defendant followed by filing of the
civil suit claiming a decree for eviction of the
defendant from the suit house and arrears of rent
against the defendant. The plaintiff sought a decree
for the defendant's eviction from the suit house on
the ground of non-payment of arrears of rent as
specified under Section 20(2)(a) of the Uttar Pradesh
Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (hereinafter referred to as “the
Act”).
3
6. The defendant denied the averments made in
the plaint and joined issues. One of the grounds
raised by the defendant was that the provisions of
the Act do not apply to the suit house because the
suit house is the property of the Charitable Trust.
7. Issues were framed. Parties adduced their
evidence. The Trial Court by its judgment/order
dated 02.08.1997 passed the decree for eviction and
arrears of rent. It was held that the suit is
maintainable, that the provisions of the Act are
applicable, that the defendant was a defaulter in
payment of monthly rent and its arrears, and that a
ground under Section 20(2)(a) of the Act is made out
against the defendant for his eviction from the suit
house. Accordingly, the decree for defendant’s
eviction from the suit house was passed.
8. The defendant felt aggrieved and filed a civil
revision before the Additional District Judge,
Gorakhpur. By order dated 22.04.1998, the
Additional District Judge dismissed the revision and
4
confirmed the judgment and decree of the Trial
Court.
9. It may be mentioned here that one question
was also raised by the parties in the case, namely,
whether any case under Section 20(4) read with its
proviso was made out by the parties or not?
10. It was the case of the plaintiff (landlord) that
the defendant is not entitled to take any benefit of
Section 20(4) of the Act to avoid the decree of
eviction passed against him under Section 20(2)(a)
of the Act because his son, who is a member of the
tenant’s family, as defined under Section 3(g) of the
Act, has built his own house in the same city and
hence the defendant’s case would fall under proviso
to Section 20(4) of the Act which would make
Section 20(4) inapplicable to the tenant. The
defendant opposed this contention on facts stating
that his son lives separately from him and hence
proviso will not apply. The contention of the
plaintiff was upheld by the Revisional Court (ADJ)
5
and accordingly the eviction decree passed under
Section 20(2)(a) of the Act against the defendant was
confirmed by denying the defendant the benefit of
Section 20(4) of the Act.
11. The defendant felt aggrieved and filed writ
petition under Article 227 of the Constitution of
India before the High Court. By impugned order,
the Single Judge of the High Court dismissed the
writ petition and upheld the order of the Revisional
Court (ADJ) and also affirmed all the findings of fact
recorded by the Trial Court, giving rise to filing of
this appeal by the defendant (tenant) by way of
special leave in this Court.
12. Heard Mr. Nagendra Rai, learned senior
counsel for the appellants and Mr. Bhuvan Mishra,
learned counsel for the respondents.
13. Learned senior counsel for the appellants while
assailing the legality and correctness of the
impugned order argued only one point.
6
14. Learned counsel, by referring to Sections 20(2)
(a) and 20(4) of the Act, submitted that eviction
decree passed under Section 20(2)(a) of the Act is
always subject to ensuring compliance of Section
20(4) of the Act. Learned counsel contended that the
defendant/tenant was able to prove that he is
entitled to claim benefit of Section 20(4) of the Act
whereas the plaintiff has failed to prove that the
defendant’s case fell under proviso to Section 20(4)
so as to deprive the defendant from taking benefit of
sub-Section (4) of Section 20 and avoid the decree
for eviction passed against him under Section 20(2)
(a) of the Act.
15. Learned counsel further urged that since the
defendant/tenant did not construct his own house
though his son constructed the house in the same
city but since his son was living separately from
him, the proviso to Section 20(4) of the Act had no
application to the case. It was his submission that
the defendant was, therefore, entitled to claim the
7
benefit of Section 20(4) of the Act and the eviction
decree passed against him under Section 20(2)(a)of
the Act is liable to be set aside.
16. In reply, learned counsel for the respondents
supported the impugned order and contended that
it does not call for any interference.
17. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no merit in the appeal.
18. Section 3(g), Section 20(2)(a) and Section 20(4)
of the Act which are relevant for this case read as
under :
“ Section 3(g)
 “family” in relation to a landlord or tenant of
a building, means, his or her(i)
spouse;
(ii) male lineal descendants
(iii) such parents, grandparents and
any unmarried or widowed or
divorced or judicially separated
daughter or daughter of a male
lineal descendant, as may have
been normally residing with him
or her, and includes, in relation to
a landlord, any female having a
8
legal right of residence in that
building
Section 20(2)(a)
(a) That the tenant is in arrears of rent for
not less than four months, and has failed to
pay the same to the landlord within one
month from the date of service upon him of a
notice of demand:
Provided that in relation to a tenant
who is a member of the armed forces of the
Union and in whose favour the Prescribed
Authority under the Indian Soldiers
(Litigation) Act, 1925 (Act No. IV of 1925),
has issued a certificate that he is serving
under special conditions within the meaning
of Section 3 of that Act or where he has died
by enemy action while so serving, then in
relation to his heirs, the words “four months”
in this clause shall be deemed to have been
substituted by the words “one year”.
Section 20(4)
In any suit for eviction on the ground
mentioned in clause (a) of sub-section (2), if
at the first hearing of the suit the tenant
unconditionally pays or tenders to the
landlord or deposits in court the entire
amount of rent and damages for use and
occupation of the building due from him
(such damages for use and occupation being
calculated at the same rate as rent) together
with interest thereon at the rate of nine per
cent per annum and the landlord’s costs of
the suit in respect thereof, after deducting
therefrom any amount already deposited by
the tenant under sub-section (1) of Section
30, the Court may, in lieu of passing a decree
for eviction on that ground, pass an order
relieving the tenant against his liability for
eviction on that ground:
9
Provided that nothing in this
sub-section, shall apply in relation to a
tenant who or any member of whose family
has built or has otherwise acquired in a
vacant state, or has got vacated after
acquisition, any residential building in the
same city, municipality, notified area or town
area.”
19. Reading of Section 20(4) of the Act would go to
show that when a landlord files a suit against his
tenant seeking his eviction from the tenanted
premises on the ground of arrears of rent as
specified under Section 20(2)(a) of the Act, the Court
has a discretion to pass a decree for eviction against
the tenant, in case the Court finds that the tenant
has ensured compliance of the requirements of
Section 20(4) of the Act by depositing the rent, its
arrears and damages together with interest as
specified therein.
20. In other words, if the Court finds that the
tenant has ensured compliance of conditions
specified in sub-section (4) of Section 20 of the Act
at the first hearing of the suit filed by his landlord
10
for his eviction on the ground of arrears of rent
under Section 20(2) of the Act, it is the discretion of
the Court to either pass a decree for eviction against
the tenant or relieve him from the rigor of the
eviction decree.
21. The proviso, however, provides that
sub-section(4) of Section 20 of the Act will not
apply, if it is proved that a tenant or any member of
his family, has either built or otherwise acquired the
house in a vacant state, or has got vacated after
acquisition, any residential building in the same
city, municipality, notified area or town area.
22. In our opinion, in order to attract the proviso,
three facts need to be proved. First, the tenant or
any member of his family, as specified under
Section 3(g), has either built or otherwise acquired
any residential building; Second, such residential
building is in a vacant state; and third, such vacant
residential building is situated in the same city,
11
municipality, notified area or town area where the
suit tenanted premises is situated.
23. Once these three facts are proved, the proviso
would apply against the tenant disentitling him to
claim the benefit of sub-section (4) of Section 20 to
avoid decree for his eviction passed against him
under Section 20(2)(a) of the Act.
24. The main reason behind enacting such proviso
is that the tenant, in such circumstances, would
not suffer any hardship, if he is asked to vacate the
tenanted premises pursuant to eviction decree
passed against him on the ground of arrears of rent
under Section 20(2)(a) of the Act because he or any
member of his family has built house or acquired it
and got its vacant possession situated in the same
city. Such tenant can, therefore, shift in the house
of member of the family.
25. The submission of learned counsel for the
defendant (tenant) was that in cases where the
tenant's son is living separately from his
12
father(tenant) in his own house then such tenant
cannot be made to suffer the eviction decree once he
complies with the requirements of sub-section(4) of
Section 20.
26. In other words, the submission was that it is
only when any member of tenant's family is living
with the tenant in the tenanted premises and if he
owns any vacant residential building in the same
city, the tenant can be deprived of the benefit of
sub-section(4) of Section 20 but not otherwise. We
find no merit in this submission.
27. In our view, the language of proviso being plain
and simple leaving no ambiguity therein, we cannot
read the words of the proviso, the way learned
counsel for the appellant wants us to read therein to
accept his submission. In our view, if such was the
intention of the legislature, then the proviso would
have been worded accordingly. Such is, however,
not the case here.
13
28. In the light of the foregoing discussion, we
concur with the reasoning and the conclusion
arrived at by the Courts below and accordingly hold
that the tenant, having rightly suffered a decree for
eviction on the ground contained under Section
20(2)(a), is not entitled to take the benefit of
sub-section(4) of Section 20 because his case falls
under the proviso to sub-section(4) by virtue of the
fact that his son, who is member of family being a
male lineal descendants as specified under Section
3(g)(ii) of the Act, has built his residential house in
the same city and he is in its possession. The
tenant can, therefore, shift in the said house once
he is asked to vacate pursuant to eviction decree
passed against him.
29. The appeal thus fails and is accordingly
dismissed. The appellants are, however, granted
three months’ time to vacate the suit house
provided they deposit the entire arrears of rent till
date, if they have not so far deposited or paid to the
14
respondents and also to deposit three months’ rent
by way of damages for use and occupation within
two weeks from the date of order in the Court below.
Failure to make deposit and submit an undertaking
by the appellants to this Court within two weeks to
vacate the suit premises within three months will
entitle the respondents to execute the decree
forthwith on the expiry of two weeks.

………...................................J.
 [R. K. AGRAWAL]

…...……..................................J.
 [ABHAY MANOHAR SAPRE]
New Delhi;
April 17, 2018
15

mere perusal of the order of the Family Court and the High Court quoted supra, would go to show that both the Courts failed to apply their judicial mind to the factual and legal controversy insofar as award of permanent alimony to the respondent(wife) is concerned. Both the Courts did 6 not even mention the factual narration of the case set up by the parties on the question of award of permanent alimony and without there being any discussion, appreciation, reasoning and categorical findings on the material issues such as, financial earning capacity of husband to pay the alimony and also the financial earning capacity of wife, a direction to pay Rs.15,00,000/- by way of permanent alimony to the wife was given. In our opinion, such direction is wholly unsustainable in law.

 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3876 OF 2018
[Arising out of SLP (C) No.9691 of 2015]
Jalendra Padhiary .. Appellant(s)
Versus
Pragati Chhotray .. Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal arises from the final judgment and
order dated 03.11.2014 passed by the High Court of
Orissa at Cuttack in M.A.T.A. No.113 of 2014
whereby the Division Bench of the High Court
1
dismissed the appeal filed by the appellant herein in
limine at the stage of admission, in consequence,
upheld the order dated 17.09.2014 passed by the
Family Court, Bhubaneswar in Civil Proceeding
No.24 of 2011.
3. The facts of the case lie in a narrow compass
and it would be clear from the facts stated
hereinbelow.
4. The appellant is the plaintiff whereas the
respondent is the defendant in the civil suit out of
which this appeal arises. The dispute is between the
husband and wife and it relates to award of
permanent alimony payable to wife.
5. The appellant-husband filed a petition against
the respondent-wife under Section 13 of the Hindu
Marriage Act, 1954 (hereinafter referred to as “the
Act”) before the Judge, Family Court, Bhubaneswar
seeking decree for dissolution of marriage on the
2
grounds of desertion and cruelty. The respondent
filed her written statement and denied the material
averments of the appellant’s claim. On the basis of
the pleadings and the evidence adduced by the
parties, the Family Judge, by order dated
17.09.2014, allowed the petition and passed a decree
of divorce by dissolving the marriage. The Family
Judge also directed the appellant(husband) to pay
permanent alimony of Rs.15,00,000/- and litigation
expenses of Rs.10,000/- to the respondent(wife).
6. The appellant(husband), felt aggrieved by that
part of the order of the Family Court by which the
appellant was directed to pay permanent alimony of
Rs.15,00,000/- to the respondent(wife), filed appeal
before the Division Bench of the High Court. By
judgment/decree dated 03.11.2014, the Division
Bench of the High Court dismissed the appellant’s
appeal and affirmed the order of the Family Court.
3
7. Against the order of the Division Bench of the
High Court, the appellant(husband) has filed this
appeal by way of special leave in this Court.
8. The short question, which arises for
consideration in this appeal, is whether the Division
Bench of the High Court was justified in dismissing
the appellant’s appeal in limine and thereby
upholding the order of the Family Judge insofar as it
related to awarding permanent alimony of
Rs.15,00,000/- to the wife(respondent).
9. Heard Mr. Kumar Gaurav, learned counsel for
the appellant and Mr. Radha Shyam Jena, learned
counsel for the respondent.
10. Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
constrained to allow the appeal, set aside the
impugned order as also the order of the Family Court
to the extent it fixes the award of permanent alimony
4
and remand the case to the Family Court for deciding
the question of grant of permanent alimony payable to
wife afresh on merits in accordance with law.
11. The operative portion of the order of the Family
Court reads as under:
“The petition of the petitioner is allowed on
contest in favour of the petitioner. A decree
of divorce is passed and the marriage
between the petitioner and the respondent is
hereby declared dissolved with effect from
the date of decree. The petitioner is directed
to pay permanent alimony of Rs.15,00,000/-
and litigation expenses of Rs.10,000/- to the
respondent.”
(emphasis supplied)
12. The order of the Division Bench of the High Court
reads as under:
“After looking into the allegations made and
pleadings taken by the parties, as recorded in
the impugned judgment, which during the
course of argument could not be snipped, we
do not find any reason to interfere with the
amount of Rs.15,00,000/- awarded as
permanent alimony to the wife by the learned
Judge, Family Court. In the present time,
the said amount is wholly insufficient for the
wife to maintain her entire life.
5
Since we do not find any merit in the
appeal, we dismiss the same in limine at the
very stage of admission.”
13. The only question involved in the appeal before
the High Court, which was carried to this Court in this
appeal by the appellant (husband), was whether the
award of permanent alimony of Rs.15,00,000/- by the
Family Court to the respondent(wife) was legally and
factually sustainable.
14. Insofar as the grant of decree of divorce in favour
of the husband is concerned, it was not challenged by
the respondent (wife) in appeal before the High Court
and hence it attained finality.
16. In our view, mere perusal of the order of the
Family Court and the High Court quoted supra, would
go to show that both the Courts failed to apply their
judicial mind to the factual and legal controversy
insofar as award of permanent alimony to the
respondent(wife) is concerned. Both the Courts did
6
not even mention the factual narration of the case set
up by the parties on the question of award of
permanent alimony and without there being any
discussion, appreciation, reasoning and categorical
findings on the material issues such as, financial
earning capacity of husband to pay the alimony and
also the financial earning capacity of wife, a direction
to pay Rs.15,00,000/- by way of permanent alimony to
the wife was given. In our opinion, such direction is
wholly unsustainable in law.
16. Time and again, this Court has emphasized on
the Courts the need to pass reasoned order in every
case, which must contain the narration of the bare
facts of the case of the parties to the lis, the issues
arising in the case, the submissions urged by the
parties, the legal principles applicable to the issues
involved and the reasons in support of the findings
7
recorded based on appreciation of evidence on all the
material issues arising in the case.
17. It is really unfortunate that neither the Family
Court nor the High Court kept in mind these legal
principles and passed cryptic and unreasoned orders.
Such orders undoubtedly cause prejudice to the
parties and in this case, it caused prejudice to the
appellant(husband) because the orders of the High
Court and Family Court deprived him to know the
reasons for fixing the permanent alimony amount of
Rs.15,00,000/- payable to his wife.
18. We cannot countenance the manner in which
both the Courts passed the order which has compelled
us to remand the matter to the Family Court for
deciding the issue afresh on merits.
19. In the light of the foregoing discussion, we allow
the appeal, set aside the impugned order of the High
Court and the order of the Family Court insofar as it
8
relates to fixing of Rs.15,00,000/- towards payment of
permanent alimony to the respondent(wife) by the
appellant(husband) and remand the case to the Family
Court to decide the quantum of payment of permanent
alimony afresh in accordance with law keeping in view
our observations made supra.
20. We, however, make it clear that we have
refrained ourselves from making any observation on
merits of the controversy while forming an opinion to
remand the case to the Family Court for the reasons
mentioned above. The Family Court would, therefore,
decide the issue, uninfluenced by any of our
observations, strictly in accordance with law. If
necessary, the Family Court would also grant liberty to
the parties to amend the pleadings and adduce
evidence on the question of quantum of payment of
permanent alimony.
9
21. The appeal is accordingly allowed. Impugned
order of the High Court and the order of the Family
Court insofar as it relates to fixation of permanent
alimony of Rs.15,00,000/- are set aside with the
aforesaid directions for compliance.
22. We direct the Family Court to decide the case
within six months as an outer limit.
23. Till the disposal of the case, the
appellant(husband) will continue to pay monthly
maintenance amount, which was fixed by the Family
Court, to the respondent regularly. Needless to say,
the payment of monthly maintenance will be subject
to the final determination made by the Family Court.
………………………………..J
(R.K. AGRAWAL)
 …..………………………………J.
 (ABHAY MANOHAR SAPRE)
New Delhi,
April 17, 2018
10

Anti-Suit Injunctions are meant to restrain a party to a suit/proceeding from instituting or prosecuting a case in another court, including a foreign court. Simply put, an anti-suit injunction is a judicial order restraining one party from prosecuting a case in another court outside its jurisdiction. The principles governing grant of injunction are common to that of granting anti-suit injunction. The cases of injunction are basically governed by the doctrine of equity.

REPORTABLE
 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3878 2018
( Arising out of Special Leave Petition (Civil) No. 10078 of 2018)
@ CC No.22197/2016
Dinesh Singh Thakur ...…...Appellant(s)
Versus
Sonal Thakur ….…Respondent(s)
J U D G M E N T
R.K.Agrawal, J.
1) Leave granted.
2) The present appeal has been filed against the impugned
judgment and order dated 03.11.2016 passed by the High Court
of Punjab & Haryana at Chandigarh in CR No. 7190 of 2016
whereby learned single Judge of the High Court dismissed the
revision filed by the appellant-husband against the order dated
18.10.2016 passed by the District Judge, Family Court, Gurgaon
in Civil Suit No. 15 of 2016 whereby ad-interim injunction
granted against the respondent-wife, vide order dated 26.09.2016
has been vacated.
1
Brief facts:-
3) Having regard to the nature and circumstances of the case,
we do not intend to discuss all the facts in detail at this stage.
Hence, the facts are stated in a summarized way only to
appreciate the issue involved in this instant appeal.
(a) The marriage between Dinesh Singh Thakur-the
appellant-husband and Sonal Thakur - respondent-wife was
solemnized on 20.02.1995 as per Hindu rites and two children
were born out of the said wedlock. The appellant-husband was
working in United States of America (USA) at the time of marriage
and he took the respondent-wife to USA on Dependent Visa.
Both the parties got the citizenship of USA in May, 2003. They
obtained “PIO” status (Person of India Origin) in June 2003 and
“OCI” status (Overseas Citizens of India) in July 2006.
(b) The appellant-husband filed a petition being H.M.A. No. 601
of 2016 under Sections 13 and 26 of the Hindu Marriage Act,
1955 (in short ‘the Act’) against the respondent-wife at the Family
Court, Gurgaon which is pending adjudication before the Court.
Subsequently, the respondent-wife filed a petition being Case No.
2016-008918-FD in the Circuit Court of the Sixth Judicial
2
Circuit in and for Pinellas County, Florida, USA for divorce on the
ground of irretrievable breakdown of marriage and other reliefs.
Thereafter, the appellant-husband filed Civil Suit No. 15 of 2016
before the District Judge, Family Court, Gurgaon, under Section
7 of the Act for permanent injunction and declaration inter alia to
restrain the respondent-wife from pursuing the petition for
divorce before the Court in USA.
(c) Learned District Judge, vide order dated 26.09.2016,
granted ex parte ad interim injunction to the appellant-husband.
Being aggrieved, the respondent-wife filed an application for
vacation and modification of the order dated 26.09.2016. Learned
District Judge, vide order dated 18.10.2016, vacated the
injunction granted vide order dated 26.09.2016.
(d) Aggrieved by the order vacating injunction, the
appellant-husband preferred CR No. 7190 of 2016 before the
High Court. Learned single Judge of the High Court, vide order
dated 03.11.2016 dismissed the petition filed by the
appellant-husband.
3
(e) Aggrieved by the judgment and order dated 03.11.2016, the
appellant-husband has filed this appeal by way of special leave
before this Court.
4) Heard Ms. Indu Malhotra, learned senior counsel for the
appellant-husband and Mr. V. Giri, learned senior counsel for the
respondent-wife and perused the record.
Point(s) for consideration:-
5) The only point for consideration before this Court is whether
in the present facts and circumstances of the case, the
appellant-husband is entitled to the decree of anti-suit injunction
against the respondent-wife?
Rival submissions:-
6) Learned senior counsel for the appellant-husband
contended that as the appellant herein had already filed a
petition seeking dissolution of marriage of the parties in which
the respondent-wife was served on 04.08.2016 and she had
caused appearance on 16.09.2016, the proceedings initiated by
the respondent-wife seeking a decree of divorce in a Foreign
Court on the ground of irretrievable breakdown of marriage
which is not a ground for divorce under the Act are liable to be
4
stayed. Further, the respondent-wife, along with her minor
children is residing in India since 2003 and filing of petition for
divorce in the Court at USA, after receipt of notice in the divorce
petition filed by the appellant-husband in India, is an abuse of
process of law and amounts to multiplicity of proceedings.
7) Learned senior counsel further contended that the
respondent-wife is admittedly residing at Gurgaon, therefore, the
court at Gurgaon would be the forum convenient to both the
parties. She further contended that the trial Court has only
considered the provisions of Section 41(b) of the Specific Relief
Act, 1963 (in short ‘the SR Act’) and the decision in the case of
Rakesh Kumar vs. Ms. Ashima Kumar – AIR 2007 P&H 63 but
did not take into consideration the provisions of Section 41(a) of
the SR Act, relevant in the present context. Learned senior
counsel for the appellant-husband finally contended that the
High Court was not right in upholding the order of the court
below on vacating the ad-interim injunction and interference in
this regard is sought for by this Court.
8) Learned senior counsel for the respondent-wife while
refuting the claims made by learned senior counsel for the
appellant-husband submitted that the petition that has been
5
filed before the Court at Florida is not only for dissolution of
marriage of the parties but also for claiming various other reliefs
such as equitable distribution of marital assets, child support,
alimony, partition and other reliefs that are not available under
the Indian Law. Learned senior counsel further submitted that
the irreparable loss or injury shall be caused to the
respondent-wife and to the children in case the petition pending
in the Court at Florida is stayed.
Discussion
9) Anti-Suit Injunctions are meant to restrain a party to a
suit/proceeding from instituting or prosecuting a case in another
court, including a foreign court. Simply put, an anti-suit
injunction is a judicial order restraining one party from
prosecuting a case in another court outside its jurisdiction. The
principles governing grant of injunction are common to that of
granting anti-suit injunction. The cases of injunction are
basically governed by the doctrine of equity.
10) It is a well-settled law that the courts in India have power
to issue anti-suit injunction to a party over whom it has personal
jurisdiction, in an appropriate case. However, before passing the
6
order of anti-suit injunction, courts should be very cautious and
careful, and it should be granted sparingly and not as a matter of
routine as such orders involve a court impinging on the
jurisdiction of another court, which is not entertained very easily
specially when the it restrains the parties from instituting or
continuing a case in a foreign court.
11) In this backdrop, it is worthwhile to quote Section 41 of the
SR Act which provides for various instances and circumstances
under which injunction cannot be granted.
“41. Injunction when refused.—An injunction cannot be
granted—
(a) to restrain any person from prosecuting a judicial proceeding
pending at the institution of the suit in which the injunction is
sought, unless such restraint is necessary to prevent a
multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any
proceeding in a court not subordinate to that from which the
injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any
proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which
would not be specifically enforced;
(f) to prevent, on the ground of nuisance, an act of which it is
not reasonably clear that it will be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has
acquiesced;
(h) when equally efficacious relief can certainly be obtained by
any other usual mode of proceeding except in case of breach of
trust;
7
(i) when the conduct of the plaintiff or his agents has been such
as to disentitle him to the assistance of the court;
(j) when the plaintiff has no personal interest in the matter.”
12) The appellant – husband argued that Section 41(b) is not
applicable to the instant case rather it is applicable only to those
cases where question is regarding the injunction for proceedings
in the Indian court. In support of this argument, learned senior
counsel placed reliance on Oil and Natural Gas Commission
vs. Western Company of North America (1987) 1 SCC 496,
wherein this Court, while interpreting the provision of Section
41(b) of the Specific Relief Act, 1963 has held as follows:-
“18….This provision, in our opinion, will be attracted only in a
fact-situation where an injunction is sought to restrain a party from
instituting or prosecuting any action in a court in India which is
either of coordinate jurisdiction or is higher to the court from which
the injunction is sought in the hierarchy of Courts in India…..”
13) Learned senior counsel for the appellant-husband further
placed reliance on Modi Entertainment Network and Another
vs. WSG Cricket PTE Ltd. 2003 (4) SCC 341, wherein this Court
while dealing with the matter laid down certain principles
required to be taken into consideration by any court while
granting an anti-suit injunction. These principles are as under:-
8
 The defendant, against whom injunction is sought, is
amenable to the personal jurisdiction of the court.
 If the injunction is declined, the ends of justice will be
defeated and injustice will be perpetuated and;
 The principle of comity-respect for the court in which the
commencement or continuation of action/proceeding is
sought to be restrained-must be borne in mind.
14) In Modi Entertainment Networks (supra), this Court has
reiterated this position by holding that the courts in India like
Court in England are courts of law and equity. The principles
governing the grant of anti-suit injunction being essentially an
equitable relief; the courts in India have the powers to issue
anti-suit injunction to a party over whom it has personal
jurisdiction in an appropriate case; this is because the courts of
equity exercise jurisdiction in personam; this power has to be
exercised sparingly where such an injunction is sought and if not
granted, it would amount to the defeat of ends of justice and
injustice would be perpetuated.
15) In Vivek Rai Gupta vs. Niyati Gupta, Civil Appeal No.
1123 of 2006, decided on February 10, 2016, this Court has held
as under:-
9
“If the execution proceedings are filed by the respondent-wife
for executing the aforesaid decree dated 18.09.2012 passed
by the Court of Common Pleas, Cuyahoga Country, Ohio,
USA against any other movable/immovable property in India
it would be open to the appellant-husband to resist the said
execution petition on any grounds available to him in law
taking the position that such a decree is not executable.”
16) Further, in Harmeeta Singh vs. Rajat Taneja 2003 (67)
DRJ 58, the Delhi High Court considering the fact that the
parties have lived together for a very short time in the United
States of America had granted anti suit injunction.
17) Y. Narasimha Rao & Others vs. Y. Venkata Lakshmi
and Another (1991) 3 SCC 451, this Court has held as under:-
“20. From the aforesaid discussion the following rule can be
deduced for recognising a foreign matrimonial judgment in
this country. The jurisdiction assumed by the foreign court
as well as the grounds on which the relief is granted must be
in accordance with the matrimonial law under which the
parties are married. The exceptions to this rule may be as
follows: (i) where the matrimonial action is filed in the forum
where the respondent is domiciled or habitually and
permanently resides and the relief is granted on a ground
available in the matrimonial law under which the parties are
married; (ii) where the respondent voluntarily and effectively
submits to the jurisdiction of the forum as discussed above
and contests the claim which is based on a ground available
under the matrimonial law under which the parties are
married; (iii) where the respondent consents to the grant of
the relief although the jurisdiction of the forum is not in
accordance with the provisions of the matrimonial law of the
parties.”
18) Further, during the course of hearing, various documents
such as pan card, Aadhar card of the respondent-wife, lease
10
deed which was executed by her in 2015 etc., which are also
placed on record, are sufficient to show that respondent-wife is
ordinarily living in India. Further, as it appears from the
proceedings recorded before the US court that the respondent
herself has admitted that the Family Court Gurgaon has
jurisdiction in the given case. The evidence placed on record is
sufficient enough to show that the respondent is amenable to
the personal jurisdiction of Gurugram Family Court. Though
the respondent-wife is amenable to the jurisdiction of Family
Court, Gurgaon, there is nothing on record to hold that the other
party will suffer grave injustice if the injunction is not granted.
There is no dispute to the fact that both the parties are
permanent citizens of U.S. Undisputedly, the Circuit Court,
Florida, USA is also having the concurrent jurisdiction in the
given case. The contention that the appellant-husband will
suffer grave injustice if the proceedings are allowed to be
continued in the Circuit Court, Florida USA doesn’t stand to the
ground as the appellant himself has been residing there after
2007 and the proceedings for grant of anti-suit injunction were
initiated by him in India through another person by empowering
him through a power of attorney to file and pursue the disputed
11
litigation on his behalf. Further, there is nothing brought on
record to show how the appellant-husband would suffer grave
injustice if the injunction restraining the respondent-wife from
pursuing the divorce petition in Florida, is not granted. Still
further, even if the injunction is declined, it cannot be said that
the ends of justice will be defeated and injustice will be
perpetuated.
19) The contention that the respondent-wife has filed the
petition for divorce in the court at USA on the ground of
irretrievable breakdown of marriage which is not the ground
provided for divorce under the Act requires consideration. The
mere fact that the respondent-wife has filed the case on the
ground which is not available to her under the Act, doesn’t
means that there are likelihood of her being succeeding in
getting a decree for divorce. Specifically, in view of the fact that
the appellant has raised this contention before the Circuit Court,
Florida and both the parties will produce evidence with regard to
the question whether their marriage is governed by the Act or
any other law.
20) Foreign court cannot be presumed to be exercising its
jurisdiction wrongly even after the appellant being able to prove
12
that the parties in the present case are continued to be
governed by the law governing Hindus in India in the matter of
dispute between them.
21) In view of above discussion and after having regard to the
nature of case and other peculiar facts, we do not deem it
appropriate to interfere with the decision rendered by the High
Court. We are of the opinion that the proceedings in the Foreign
Court cannot be said to be oppressive or vexatious. The appeal
is accordingly dismissed with no order as to costs.
……………………………………J.
 (R.K. AGRAWAL)
…………………………………….J.
 (R. BANUMATHI)
NEW DELHI
APRIL 17, 2018
13

“Paramparya Vaidyas’ - Conclusion: 19) In our country, the numbers of qualified medical practitioners have been much less than the required number of such persons. The scarcity of qualified medical practitioner was previously quite large since there were very few institutions imparting teaching and training to Doctors, Vaidyas, Hakims etc. The position has now changed and there are quite a good number of medical colleges imparting 25 education in various streams of medicine. No doubt, now there are a good numbers of such institutions training qualified medical practitioners at number of places. The persons having no recognized and approved qualifications, having little knowledge about the indigenous medicines, are becoming medical practitioners and playing with the lives of thousands and millions of people. Some time such quacks commit blunders and precious lives are lost. 20) The government had been vigilant all along to stop such quackery. A number of unqualified, untrained quacks are posing a great risk to the entire society and playing with the lives of people without having the requisite training and education in the science from approved institutions. The Travancore-Cochin Medical Practitioners Act, 1953 as well as the Indian Medicine Central Council Act, 1970 were also enacted on the similar lines. Every practitioner shall be deemed to be a practitioner registered under the Act if at the commencement of this Act, his name stands entered in the appropriate register maintained under the said Act and every certificate of registration issued to every such practitioner 26 shall be deemed to be a certificate of registration issued under this Act. But in the present case, the appellants herein have failed to show that they possessed requisite recognized qualification for registration entitling them to practice Indian system of medicines or their names have been entered in the appropriate registers after the commencement of this Act. 21) In view of the above discussion, we are of the considered opinion that the High Court was right in dismissing the petitions filed by the appellants herein. Consequently, the appeals fail and are accordingly dismissed. Interlocutory applications, if any, are disposed of accordingly. However, the parties are left to bear their own costs.

1
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO. 897 OF 2009
Kerala Ayurveda Paramparya Vaidya Forum .... Appellant(s)
Versus
State of Kerala and Others .... Respondent(s)
 WITH
 CIVIL APPEAL NO. 898 OF 2009
 CIVIL APPEAL NO. 899-900 OF 2009
 CIVIL APPEAL NO. 901 OF 2009
 CIVIL APPEAL NO. 902 OF 2009
 CIVIL APPEAL NO. 903 OF 2009
 CIVIL APPEAL NO. 904 OF 2009
 CIVIL APPEAL NO. 905 OF 2009
 J U D G M E N T
R.K. Agrawal, J.
1) The above appeals have been filed against the judgment
and order dated 08.01.2003 passed by the Division Bench of
the High Court of Kerala at Ernakulam in O.P. No. 24109 of
2
2001 and connected matters whereby the High Court had
dismissed the petitions filed by the appellants herein.
2) Brief facts:
(a) In the State of Kerala, a number of persons are practicing
in Sidha/Unani/Ayurveda system of medicine called as
“Paramparya Vaidyas’ and passing their knowledge and
experience to their descendants by way of training and
practice. Normally, almost all the descendants in the family
get training in the same field and adopt this as a profession
and means of livelihood.
(b) Kerala Ayurveda Paramparya Vaidya Forum (in short ‘the
Forum’) – the appellant herein is an association of
‘Paramparya Vaidyas’ in Travancore-Cochin, registered under
the Travancore-Cochin Literary, Scientific and Charitable
Societies Registration Act, 1955. The main objective of the
Forum is the welfare of its members and to render assistance
for practice in indigenous medicines.
(c) Pursuant to the enactment of the Travancore-Cochin
Medical Practitioners Act, 1953 (in short ‘the Act’), the
3
‘Paramparya Vaidyas’ were debarred from practicing
modern/homoeopathic/ayurvedic/siddha/unani-tibbi
medicines unless registered under the Act. Subsequently,
three Central Acts, viz., The Indian Medical Council Act, 1956,
The Indian Medicine Central Council Act, 1970 and the
Homoeopathy Central Council Act, 1973 with regard to
modern medicine, indigenous medicine and homoeopathic
medicine respectively came into force.
(d) Being aggrieved by the enactment of the Act, Akhila
Kerala Parambarya Vaidya Federation as well as the persons
practicing as ‘Paramparya Vaidyas’ filed a number of petitions
before the High Court. Learned single Judge of the High
Court, taking note of an affidavit filed by the State Government
stating that the question of granting registration to practice
medicines to the ‘Paramparya Vaidyas’ can be considered at
the time of enactment of Kerala Medical Practitioners Bill, by
order dated 17.06.1997 in O.P. No. 118 of 1991 and other set
of petitions, disposed of the original petitions while directing
the State Government to have a serious consideration of the
circumstances expeditiously.
4
(e) Several petitions were filed before the High Court by the
‘Paramparya Vaidyas’ claiming that the methods had been in
vogue for a considerable long period of time. The Division
Bench of the High Court, vide order dated 08.01.2003
dismissed the petitions filed by the appellants herein.
(f) Aggrieved by the order dated 08.01.2003, the appellants
have preferred these appeals by way of special leave.
3) Heard the arguments advanced by learned senior counsel
for the parties and perused the records. Since a common
question of law and facts arise in these appeals, they are being
disposed of by this common judgment.
Point(s) for consideration:-
4) The sole point for consideration before this Court is as to
whether the persons who do not fulfill the prescribed
qualification and are not duly registered under the relevant
Statute, be permitted to practice as ‘Paramparya Vaidyas’?
Rival Submissions:
5) Learned senior counsel for the appellants contended
before this Court that in the State of Kerala, a large number of
5
persons are practicing in Sidha/Unani/Ayurveda system of
medicines known as ‘Paramparya Vaidyas’, which are in vogue
for a long time. They have acquired knowledge and experience
from their gurus and parents and by continued practice over a
long period of time they have acquired the requisite expertise.
After the enactment of the Act, Section 38 empowered the
State Government to regulate the qualifications and to provide
for the registration of practitioners of modern medicine. It
took within its ambit the homeopathic and indigenous systems
of medicine as well. Learned senior counsel further contended
that due to the promulgation of the Act, the appellants, who
were not registered under the Act, were prevented from
practicing as ‘Paramparya Vaidyas’. Learned senior counsel
further contended that unlike modern systems, medicines for
each patient is being prepared after diagnosing the patient
according to his requirement considering his age, place, etc.
and there is no side effect in the treatment by these systems of
medicines. Finally, it was stressed upon by learned senior
counsel for the appellants that it is the custom that was
developed in the community that the ‘Vaidyas’ practicing in
6
these systems must pass their knowledge and heredity to
another in the family. So as a custom of the community, the
existing vaidyas have to preserve their old and indigenous
systems to retain their heredity and custom. It was also
contended that so many vaidyas practicing Ayurveda, Siddha,
Unani Tibbi had applied to the government for licence in
compliance of the provisions of the Act but the State
Government did not take any positive steps with regard to the
same instead the police and other authorities have been
harassing them for practicing in respective system of
medicines without obtaining licence or exemption as per the
provision to Section 38 of the Act.
6) He further contended that the High Court, therefore,
erred in approaching the issue on the basis that after the
coming into force of the Act only those persons who were
possessing recognized qualification have the right to practice
medicine. He further contended that it is settled law that any
mandatory prohibition has to be in express or unambiguous
terms and the alleged prohibition under Section 38 is to be
understood in the context of Section 32 of the Act.
7
7) Per contra, learned counsel for the State contended that
there are several persons in the State of Kerala practicing
Indian System of Medicine without any qualification or
registration which is in flagrant violation of Section 38 of the
Act and Section 17 of the Indian Medicine Central Council Act,
1970 (in short ‘the IMCC Act’). It was further stressed upon
that this unauthorized practice is a great threat to the health
and life of the people of the State as the practitioners are
producing alcoholic preparations and such preparations are
being misused without any licence or registration in the guise
of prescribing Indian System of Medicines. Learned counsel
further submitted that the IMCC Act does not take into
account the traditional practitioners or paramparya vaidyas.
The concept and practice of medicine by tradition was not
recognized by the Parliament at the time of the enactment of
the IMCC Act. It was further submitted that the Parliament
did not give any option to any person to commence practice
and continue to practice Indian System of Medicines without
proper qualification and registration as provided under the
IMCC Act and the only exemption is under Section 17(3)(c) of
8
the said Act which provides that a person who had been
practicing Indian System of Medicine for five (5) years at the
commencement of the IMCC Act could continue to practice
provided there has been no State Register maintained in that
State.
8) Learned counsel further submitted that the modus
operandi of such practitioners in the State is to register an
Association under the Societies Registration Act or the
Travancore-Cochin Literary, Scientific and Charitable Societies
Registration Act, with an object to enroll members and to issue
certificates in order to enable them to practice Indian System
of Medicine in the guise of ‘Paramparya Vaidyas’. Learned
counsel for the State further contended that in most of these
cases, there is no tradition or paramparayam for any of the
members of such registered Association and most of them
continue in the field of practice with bogus certificates, degrees
and diplomas. Learned counsel finally contended that the
bogus practitioners, without having requisite qualification and
registration, should not be allowed to play with the lives of the
9
people and to practice the Indian System of Medicine in the
State of Kerala.
Discussion:
9) Traditional or indigenous systems of medicine like
Ayurveda/Sidhha/Unani-Tibbi have largely evolved out of
sporadic and random processes of research and discovery
attributable to various self styled practitioners of these
systems of medicines. With a view to bring about an organized
development of these systems and standardize the mode of
treatment by the practitioners of these systems, legislations
have been framed by both the State Governments as well as
the Central Government. The legislative field for framing
legislation on these aspects is relatable to Entry 26, List III of
the Seventh Schedule of the Constitution of India. On these
lines, the Travancore-Cochin Medical Practitioners Act, 1953
was enacted with an object to regulate the qualifications and
provide for the registration of practitioners of modern medicine
10
and to enact a law relating to medical practitioners generally
in the State of Travancore-Cochin.
10) With this background, it is relevant to reproduce Section
17 of the IMCC Act as well as Sections 23 and 38 of the Act
which are as under:-
The Indian Medical Central Council Act, 1970
17. Rights of persons possessing qualifications included
in Second, Third and Fourth Schedules to be enrolled. –
(1) Subject to the other provisions contained in this Act, any
medical qualification included in the Second, Third or
Fourth Schedule shall be sufficient qualification for
enrolment on any State Register of Indian Medicine.
(2) Save as provided in section 28, no person other than a
practitioner of Indian medicine who possesses a recognized
medical qualification and is enrolled on a State Register or
the Central Register of Indian Medicine,-
(a) shall hold office as Vaid, Siddha, Hakim or [physician or
Amchi or] any other office (by whatever designation called) in
Government or in any institution maintained by a local or
other authority;
(b) shall practice Indian medicine in any State;
(c) shall be entitled to sign or authenticate a medical or
fitness certificate or any other certificate required by any law
to be signed or authenticated by a duly qualified medical
practitioner;
(d) shall be entitled to give evidence at any inquest or in any
court of law as an expert under section 45 of the Indian
Evidence Act, 1872 (1 of 1872), on any matter relating to
Indian Medicine.
(3) Nothing contained in sub-section (2) shall affect,-
(a) the right of a practitioner of Indian medicine enrolled on a
State Register of Indian Medicine to practise Indian medicine
in any State merely on the ground that, on the
commencement of this Act, he does not possess a recognized
medical qualification;
11
(b) the privileges (including the right to practice any system
of medicine) conferred by or under any law relating to
registration of practitioners of Indian medicine for the time
being in force in any State on a practitioner of Indian
medicine enrolled on a State Register of Indian Medicine;
(c) the right of a person to practise Indian medicine in a
State in which, on the commencement of this Act, a State
Register of Indian Medicine is not maintained if, on such
commencement, he has been practicing Indian medicine for
not less than five years;
(d) the rights conferred by or under the Indian Medical
Council Act, 1956 (102 of 1956)[including the right to
practice medicine as defined in clause (f) of section 2 of the
said Act], on persons possessing any qualifications included
in the Schedules to the said Act.
(4) Any person who acts in contravention of any provision of
sub-section (2) shall be punished with imprisonment for a
term which may extend to one year, or with fine which may
extend to one thousand rupees, or with both.
 Travancore-Cochin Medical Practitioners Act, 1953
23. Eligibility for registration.-
(1) Subject to the provisions of sub-sections(2) and (5).-
(i) every holder of a recognised qualification and
every practitioner holding appointment under
the Government at the commencement of this
Act, and
(ii) every person who, within the period of one year
or such other longer period as may be fixed by
the Government from the date on which this Act
come into force, proves to the satisfaction of the
appropriate council that he has been in regular
practice as a practitioner for a period of not less
than five years preceding the first day of April,
1953.
shall be eligible for registration under this Act:
Provided however that no practitioner
shall be registered under clause (ii) after the
expiration of one year, or such other longer
period as may be fixed by the Government, from
the date on which this Act come into force.
(2) Applicants for registration under clause (ii) of
sub-section (1) shall produce a certificate in Form I as
12
set forth in the schedule. The certificate shall be from
an officer of the Revenue Department not below the
rank of a Tahsildar or any other person authorized by
the Government in this behalf.
(3) The Government may, after consulting the appropriate
council, permit the registration of any person who
shall furnish to such council proof that he is
possessed of a medication degree, diploma or
certificate of any University, medical school or college
approved by such council other than those mentioned
in the Schedule.
(4) The Government shall have power to direct the
registration of any practitioner who, at the time of
registration under this section, is employed in a
hospital, asylum, infirmary, clinic surgery, lying in
hospital, sanatorium, nursing home, dispensary,
vaidyasala or dharmasala managed by any corporate
body:
Provided however that no such practitioner shall
be registered under this sub-section after the
expiration of one year, or such other longer period as
may be fixed by the Government, from the date on
which this Act comes into force.
(5) No person shall be eligible for registration under
sub-section (1), sub-section (3), or sub-section (4) if he
is subject to any of the disqualifications mentioned in
clause (a) to (e) of Section 7.
38. Persons not registered under this Act, etc., not to
practice.- No person other than (i) a registered practitioner
or (ii) a practitioner whose name is entered in the list of
practitioners published under Section 30 or (iii) a
practitioner whose name is entered in the list mentioned in
Section 25 shall practice or hold himself out, whether
directly or by implication, as practising modern medicine,
homoeopathic medicine or ayurvedic medicine, siddha
medicine or unani tibbi and no person who is not a
registered practitioner of any such medicine shall practise
any other medicine unless he is also a registered practitioner
of that medicine:
Provided that the Government may, by notification in the
Gazette, direct that this section shall not apply to any person
or class or persons or to any specified area in the State
13
where none of the three classes of practitioners mentioned
above carries on medical practice:
Provided further that this section shall not apply to a
practitioner eligible for registration under this Act who, after
having filed the application for registration, is awaiting the
decision of the appropriate council or of the Government in
case of appeal:
Provided also that this section shall not apply to a
practitioner eligible for registration under this Act until the
period prescribed for application under Section 23 expires.
11) As per the statement of objects and reasons of the IMCC
Act, the Central Council was to evolve uniform standards of
education and registration of practitioners of the indigenous
systems of medicine and for that purpose a Register was to be
maintained under the IMCC Act in order to ensure that
medicine is not to be practiced by those who are not qualified.
The IMCC Act does not contemplate any exemption from the
provisions in the Act regarding qualification or registration of
practitioners in the various branches of indigenous medicine,
viz., ayurveda, siddha, unani etc. However, Section 17(3)(c) of
the IMCC Act has a provision for protecting persons who had
been practicing Indian system of Medicine for at least five
years as on the date of commencement of the Act. Such
persons could continue their practice provided there had been
14
no State Register maintained in the State on the
commencement of the IMCC Act.
12) In Dr. Mukhtiar Chand and Others vs. State of
Punjab and Others (1998) 7 SCC 579, this Court has held as
under:-
“17. Before adverting to these questions, it would be useful
to notice various systems of medicine in vogue in India and
the statutes regulating them:
The systems of medicines generally prevalent in India
are Ayurveda, Siddha, Unani, Allopathic and
Homoeopathic. In the Ayurveda, Siddha and Unani
systems, the treatment is based on the harmony of the
four humours, whereas in the Allopathic system of
medicine, treatment of disease is given by the use of a
drug which produces a reaction that itself neutralizes
the disease. In Homoeopathy, treatment is provided by
the like.
18. Of the medical systems that are in vogue in India,
Ayurveda had its origin in 5000 BC and is being practised
throughout India but Siddha is practised in the
Tamil-speaking areas of South India. These systems differ
very little both in theory and practice. The Unani system
dates back to 460-370 BC but that had come to be practised
in India in the 10th century AD (Park: Textbook of Preventive
and Social Medicine, 15th Edn., pp. 1 & 2). Allopathic
medicine is comparatively recent and had its origin in the
19th century.
42. Here it may be necessary to refer to the development of
law with regard to Indian medicine. In the pre-constitutional
era, each province of India was having its own enactment
regulating the registration and practice in Indian medicines
like the United Provinces Indian Medicine Act, 1939, the
Punjab Ayurvedic and Unani Practitioners Act, 1949, etc.
After the coming into force of the Constitution, many State
legislations were enacted to regulate the practise of Indian
medicine, Ayurvedic and Unani like the Punjab Ayurvedic
15
and Unani Practitioners Act, 1963, etc. However, on the
model of the 1956 Act, Parliament enacted the Indian
Medicine Central Council Act, 1970 (for short “the 1970
Act”). The schemes and provisions of the 1970 Act and the
1956 Act are analogous. “Indian medicine” is defined in
Section 2(e) of the Act to mean the system of Indian medicine
commonly known as Ashtang Ayurveda, Siddha or Unani
Tibb whether supplemented or not by such modern advances
as the Central Council may declare by notification from time
to time. In Section 2(j), the expression “State Register of
Indian Medicine” is defined to mean a register or registers
maintained under any law for the time being in force in any
State regulating the registration of practitioners of Indian
medicine. The Act contemplates having separate committees
for Ayurvedic, Siddha and Unani medicines. Section 17
enables, inter alia, the persons who possess medical
qualifications mentioned in the Second, Third or Fourth
Schedule to be enrolled on any State Register of Indian
Medicine. A perusal of the Second, Third and Fourth
Schedules shows that they contain both integrated medicine
as well as other qualifications. So a holder of a degree in
integrated medicine is entitled to be enrolled under Section
17 of the 1970 Act. Section 22 authorises the Central
Council to prescribe the minimum standards of education in
Indian medicine required for granting recognized medical
qualifications by universities, Boards or medical institutions
in India. The Central Council is enjoined to maintain the
Central Register of Indian Medicine containing the
particulars mentioned therein and Section 25 lays down the
procedure for registration in the Central Register of Indian
Medicine. The counterpart of Section 15 of the 1956 Act is
Section 17 of the 1970 Act. We shall quote it here:
“17. (1) Subject to the other provisions contained in
this Act, any medical qualification included in the
Second, Third or Fourth Schedule shall be sufficient
qualification for enrolment on any State Register of
Indian Medicine.
(2) Save as provided in Section 28, no person other than a
practitioner of Indian medicine who possesses a recognised
medical qualification and is enrolled on a State Register or
the Central Register of Indian Medicine,—
(a) shall hold office as vaid, siddha, hakim or physician or
any other office (by whatever designation called) in
Government or in any institution maintained by a local
or other authority;
16
(b) shall practise Indian medicine in any State;
(c) shall be entitled to sign or authenticate a medical or
fitness certificate or any other certificate required by
any law to be signed or authenticated by a duly
qualified medical practitioner;
(d) shall be entitled to give evidence at any inquest or in
any court of law as an expert under Section 45 of the
Indian Evidence Act, 1872, on any matter relating to
Indian medicine.
(3) Nothing contained in sub-section (2) shall affect,—
(a) the right of a practitioner of Indian medicine enrolled
on a State Register of Indian Medicine to practise
Indian medicine in any State merely on the ground
that on the commencement of this Act, he does not
possess a recognised medical qualification;
(b) the privileges (including the right to practise any
system of medicine) conferred by or under any law
relating to registration of practitioners of Indian
medicine for the time being in force in any State on a
practitioner of Indian medicine enrolled on a State
Register of Indian Medicine;
(c) the right of a person to practise Indian medicine in a
State in which, on the commencement of this Act, a
State Register of Indian Medicine is not maintained if,
on such commencement, he has been practising
Indian medicine for not less than five years;
(d) the rights conferred by or under the Indian Medical
Council Act, 1956 [including the right to practise
medicine as defined in clause (f) of Section 2 of the
said Act], on persons possessing any qualifications
included in the Schedules to the said Act.
(4) Any person who acts in contravention of any provision of
sub-section (2) shall be punished with imprisonment for a
term which may extend to one year, or with fine which may
extend to one thousand rupees, or with both.”
A perusal of the provisions extracted above shows that
sub-section (1) prescribes qualifications considered sufficient
for enrolment on any State Register of Indian Medicine.
Sub-section (2) ordains that all persons except those who
possess a recognised medical qualification and are enrolled
on a State Register or the Central Register of Indian
Medicine, are prohibited from doing any of the acts
mentioned in clauses (a) to (d) of that sub-section.
17
Sub-section (3), however, carves out an exception to the
prohibition contained in sub-section (2). Clause (a) thereof
saves the right to practice of any medical practitioner of
Indian medicine who was not having recognised medical
qualification on the date of the commencement of the 1970
Act but who was enrolled on a State Register to practise that
system of medicine; clause (b) protects the privileges which
include the right to practise any system of medicine which
was conferred by or under any law relating to registration of
practitioners of Indian medicine for the time being in force in
any State on a practitioner of Indian medicine who was
enrolled on a State Register of Indian Medicine; clause (c)
saves the right of a person to practise Indian medicine in a
State in which no State Register of Indian Medicine was
maintained at the commencement of that Act provided he
has been practising in Indian medicine for not less than five
years before the commencement of the Act and clause (d)
protects the rights conferred by or under the 1956 Act
including the right to practise modern medicine possessing
any qualification included in that Act. In other words, under
clause (d) the right to practise modern scientific medicine in
all its branches is confined to only such persons who
possess any qualification included in the Schedules to the
1956 Act. In view of this conclusion, it matters little if the
practitioners registered under the 1970 Act are being
involved in various programmes or given postings in
hospitals of allopathic medicine and the like.
43. It will be appropriate to notice that the 1970 Act also
maintains a similar distinction between a State Register of
Indian Medicine and the Central Register of Indian Medicine.
Whereas the State Register of Indian Medicine is maintained
under any law for the time being in force in any State
regulating the registration of practitioners of Indian
medicine, the Central Register of Indian Medicine has to be
maintained by the Central Council under Section 23 of that
Act. For a person to be registered in the Central Register,
Section 25 enjoins that the Registrar should be satisfied that
the person concerned was eligible under that Act for such
registration. Keeping this position in mind, if we read Section
17(3)(b), it becomes clear that the privileges which include
the right to practise any system of medicine conferred by or
under any law relating to registration of practitioners of
Indian medicine for the time being in force in any State on a
practitioner of Indian medicine enrolled on a State Register
18
of Indian Medicine, are not affected by the prohibition
contained in sub-section (2) of Section 17.”
Section 23 of the Act provides for eligibility conditions for
registration of medical practitioners. Under sub-Section (1), a
holder of a recognized qualification or holding appointment
under the government at the commencement of the Act and
every other practitioner who has been in regular practice for 5
(five) years preceding 1st April, 1953, if applies within one year
have been made eligible for registration. However, by Section
38 of the Act, persons not registered under the Act have been
prohibited from practicing various types of medicines. The
first proviso empowers the State Government to exempt any
person or class of persons from undergoing registration. It is
also evident that the Government of Kerala had granted
exemption to some traditional practitioners like those who
belonged to the renowned Ashtavaidya families.
13) The capacity to diagnose the disease would depend upon
the fact as to whether the practitioner had the necessary
professional skill to do so. Acquisition of professional skill is
again a regulated subject and the measure thereof is the
19
possession of a prescribed Diploma or Degree awarded by a
recognized Institution. What one might enquire with regard to
the right to practice medicine in the light of the above is as to
whether the appellants are equipped with such a professional
qualification. The answer is, obviously, in the negative, as
admittedly, the appellants do not possess any prescribed
Diploma or Degree from a recognized institution for that
purpose. Even a person who has acquired the prescribed
Diploma or Degree from a recognized institution would not be
entitled to practice medicine unless he is so registered under
the provisions of the IMCC Act.
14) In Dr. A.K. Sabhapathy vs. State of Kerala and
Others 1992 Supp (3) SCC 147, the provisions of Section 38 of
the Act and Sections 15 and 21 of the Indian Medical Council
Act, 1956 came up for consideration before this Court wherein
it was held as under:-
“16. We are, therefore, unable to agree with the view of the
High Court that the Central Act does not lay down the
qualifications for registration of a medical practitioner. We
may in this context refer to sub-section (1) of Section 15
which postulates the holding of a recognised medical
qualification by a person for being registered in the State
Medical Register so as to entitle to practise modern scientific
medicine in the State and sub-section (1) of Section 21
20
which provides that the Indian Medical Register that is
required to be maintained by the Medical Council of India
shall contain the name of persons who are for the time being
enrolled in the State Medical Register and who possess any
of the recognised medical qualifications. These provisions
contemplate that a person can practise in allopathic system
of medicine in a State or in the country only if he possesses
a recognised medical qualification. Permitting a person who
does not possess the recognised medical qualification in the
allopathic system of medicine would be in direct conflict with
the provisions of the Central Act. We are, therefore, of the
view that the first proviso to Section 38 of the State Act
insofar as it empowers the State Government to permit a
person to practise allopathic system of medicine even though
he does not possess the recognised medical qualifications for
that system of medicine is inconsistent with the provisions of
Sections 15 and 21 read with Sections 11 to 14 of the
Central Act. The said proviso suffers from the vice of
repugnancy insofar as it covers persons who want to practise
the allopathic system of medicine and is void to the extent of
such repugnancy. Practitioners in allopathic system of
medicine must, therefore, be excluded from the scope of the
first proviso and it must be confined in its application to
systems of medicines other than the allopathic system of
medicine. We, however, wish to make it clear that we have
not considered the impact of the provisions contained in the
Indian Medicine Central Council Act, 1970 and the
Homoeopathy Central Council Act, 1973 on the provisions of
the said proviso to Section 38 of the State Act.”
Even though the impact of the provisions of the IMCC Act was
not considered but the provision of Section 17 of the IMCC Act
also provides for recognition of medical qualification included
in Second, Third and Fourth Schedules to be sufficient
qualification for enrolment on any State Register of Indian
Medicine. Thus the same principles as had been laid down in
21
Dr. A.K. Sabhapathy (supra), as reproduced above, will also
apply.
15) In the case of Delhi Pradesh Registered Medical
Practitioners vs. Director of Health, Delhi Administration
Services and Others (1997) 11 SCC 687, this Court has held
as under:-
“5. We are, however, unable to accept such contention of Mr
Mehta. Sub-section (3) of Section 17 of the Indian Medicine
Central Council Act, 1970, in our view, only envisages that
where before the enactment of the said Indian Medicine
Central Council Act, 1970 on the basis of requisite
qualification which was then recognised, a person got
himself registered as medical practitioner in the disciplines
contemplated under the said Act or in the absence of any
requirement for registration such person had been practising
for five years or intended to be registered and was also
entitled to be registered, the right of such person to practise
in the discipline concerned including the privileges of a
registered medical practitioner stood protected even though
such practitioner did not possess requisite qualification
under the said Act of 1970. It may be indicated that such
view of ours is reflected from the Objects and Reasons
indicated for introducing sub-section (3) of Section 17 in the
Act. In the Objects and Reasons, it was mentioned:
“[T]he Committee are of the opinion that the existing
rights and privileges of practitioners of Indian
Medicine should be given adequate safeguards. The
Committee, in order to achieve this object, have added
three new paragraphs to sub-section (3) of the clause
protecting (i) the rights to practise of those
practitioners of Indian Medicine who may not, under
the proposed legislation, possess a recognised
qualification subject to the condition that they are
already enrolled on a State Register of Indian Medicine
on the date of commencement of this Act, (ii) the
privileges conferred on the practitioners of Indian
22
Medicine enrolled on a State Register, under any law
in force in that State, and (iii) the right to practise in a
State of those practitioners who have been practising
Indian Medicine in that State for not less than five
years where no register of Indian Medicine was
maintained earlier.”
As it is not the case of any of the writ petitioners that they
had acquired the degree in between 1957 (sic 1967) and
1970 or on the date of enforcement of provisions of Section
17(2) of the said Act and got themselves registered or
acquired right to be registered, there is no question of getting
the protection under sub-section (3) of Section 17 of the said
Act. It is to be stated here that there is also no challenge as
to the validity of the said Central Act, 1970. The decision of
the Delhi High Court therefore cannot be assailed by the
appellants. We may indicate here that it has been submitted
by Mr Mehta and also by Ms Sona Khan appearing in the
appeal arising out of Special Leave Petition No. 6167 of 1993
that proper consideration had not been given to the standard
of education imparted by the said Hindi Sahitya Sammelan,
Prayag and expertise acquired by the holders of the aforesaid
degrees awarded by the said institution. In any event, when
proper medical facilities have not been made available to a
large number of poorer sections of the society, the ban
imposed on the practitioners like the writ petitioners
rendering useful service to the needy and poor people was
wholly unjustified. It is not necessary for this Court to
consider such submissions because the same remains in the
realm of policy decision of other constitutional functionaries.
We may also indicate here that what constitutes proper
education and requisite expertise for a practitioner in Indian
Medicine, must be left to the proper authority having
requisite knowledge in the subject. As the decision of the
Delhi High Court is justified on the face of legal position
flowing from the said Central Act of 1970, we do not think
that any interference by this Court is called for. These
appeals therefore are dismissed without any order as to
costs.”
16) It would be relevant to quote the following decision in Dr.
Sarwan Singh Dardi vs. State of Punjab and Others AIR
1987 P&H 81 wherein it was held as under:-
23
“12. In view of the clear provision in the two Central Acts,
namely, S. 15, sub-sec. (2)(b) of 1956 Act and S. 17 sub-sec.
(2)(b) of 1970 Act, no person who is not qualified in the
system of Modern Medicine and is not registered as such,
either in the State Register or the Central Register, is entitled
to practice modern system of medicine. Same is the case
regarding right to practice the system of Indian medicine
namely, that no person who is not possessed of requisite
qualification envisaged in the 1970 Act or a like legislation
by a State Legislature and is registered as such is entitled to
practice the system of Indian medicine.”
17) Similarly, in Ishaq Husain Razvi vs. State of U.P. and
Others AIR 1993 All. 283 it was held as under:-
“10….No doubt the Indian Medicines Central Council may
further include degrees and diplomas of other recognized
Universities and Institutions in the schedule of the Act, for
registration as Ayurvedic/Unani Tibbi medical practitioners.
The petitioner has failed to show that he possessed requisite
recognized qualification for registration entitling him for
practicing in Ayurvedic system of medicines….”
18) In our country, the qualified practitioners are much less
than the required number. Earlier, there were very few
Institutions imparting teaching and training to the Doctors,
Vaidyas and Hakimis but the situation has changed and there
are quite a good number of Institutions imparting education in
indigenous medicines. Even after 70 years of independence,
the persons having little knowledge or having no recognized or
approved qualification are practicing medicine and playing
24
with the lives of thousands and millions of people. The right
to practice any profession or to carry on any occupation, trade
or business is no doubt a fundamental right guaranteed under
the Constitution. But that right is subject to any law relating
to the professional or technical qualification necessary for
practicing any profession or carrying on any occupation or
trade or business. The regulatory measures on the exercise of
this right both with regard to the standard of professional
qualifications and professional conduct have been applied
keeping in view not only the right of the medical practitioners
but also the right to life and proper health care of persons who
need medical care and treatment.
Conclusion:
19) In our country, the numbers of qualified medical
practitioners have been much less than the required number
of such persons. The scarcity of qualified medical practitioner
was previously quite large since there were very few
institutions imparting teaching and training to Doctors,
Vaidyas, Hakims etc. The position has now changed and there
are quite a good number of medical colleges imparting
25
education in various streams of medicine. No doubt, now
there are a good numbers of such institutions training
qualified medical practitioners at number of places. The
persons having no recognized and approved qualifications,
having little knowledge about the indigenous medicines, are
becoming medical practitioners and playing with the lives of
thousands and millions of people. Some time such quacks
commit blunders and precious lives are lost.
20) The government had been vigilant all along to stop such
quackery. A number of unqualified, untrained quacks are
posing a great risk to the entire society and playing with the
lives of people without having the requisite training and
education in the science from approved institutions. The
Travancore-Cochin Medical Practitioners Act, 1953 as well as
the Indian Medicine Central Council Act, 1970 were also
enacted on the similar lines. Every practitioner shall be
deemed to be a practitioner registered under the Act if at the
commencement of this Act, his name stands entered in the
appropriate register maintained under the said Act and every
certificate of registration issued to every such practitioner
26
shall be deemed to be a certificate of registration issued under
this Act. But in the present case, the appellants herein have
failed to show that they possessed requisite recognized
qualification for registration entitling them to practice Indian
system of medicines or their names have been entered in the
appropriate registers after the commencement of this Act.
21) In view of the above discussion, we are of the considered
opinion that the High Court was right in dismissing the
petitions filed by the appellants herein. Consequently, the
appeals fail and are accordingly dismissed. Interlocutory
applications, if any, are disposed of accordingly. However, the
parties are left to bear their own costs.
…...…………….………………………J.
 (R.K. AGRAWAL)
……..…....…………………………………J.
(MOHAN M. SHANTANAGOUDAR)
NEW DELHI;
APRIL 13, 2018. 

whether an Umpire has to hear the matter de novo on a Reference or from the stage of disagreement between the Arbitrators?

1
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3776 OF 2018
(Arising out of Special Leave Petition (C) No. 558 OF 2014)
M/s Oswal Woollen Mills Ltd. .... Appellant(s)
Versus
M/s Oswal Agro Mills Ltd. .... Respondent(s)
J U D G M E N T
R.K. Agrawal, J.
1) Leave granted.
2) The present appeal is directed against the final judgment
and order dated 22.10.2013 passed by the High Court of Delhi
at New Delhi in FAO (OS) No. 211 of 2007 whereby a Division
Bench of the High Court dismissed the appeal filed by the
appellant herein while upholding the order dated 17.04.2007
passed by learned single Judge of the High Court.
2
3) Brief facts:
(a) The appellant Company-M/s Oswal Woolen Mills Ltd.
and the respondent Company-M/s Oswal Agro Mills Limited
are Companies incorporated under the Companies Act and are
carrying on the business of manufacturing and trading of
vegetable oils, soaps, chemicals, petrochemicals, woolen and
related products.
(b) Both the parties entered into an agreement dated
30.03.1982 in terms whereof the appellant Company
appointed the respondent Company as its agent in accordance
with the Handbook of Import Export Procedure, 1981-82 in
order to advice, assist and guide the appellant Company to
import materials under the REP licences for a CIF value of Rs.
1,85,95,100/- only with remuneration at the rate of 5% (per
cent) of the CIF value of the goods imported along with all
costs/expenditure incurred.
(c) Out of the total value of the materials to be imported
under the licences, the materials to the value of Rs.
1,16,00,800/- only could be imported and the material CIF
3
value of Rs. 69,94,300/- could not be imported by the
respondent-Company in the absence of the REP licences of the
said value which resulted in breach of contract.
(d) Both the parties took legal recourse and the High Court,
on an application under Section 20 of the Arbitration and
Conciliation Act, 1940 (in short ‘the Act’) referred the dispute
to Arbitration of two Arbitrators. After completion of the
arbitration proceedings before the Arbitrators, the arbitrators,
could not reach to a consensus on the Award in terms of the
Minutes of the Meeting held on 19.02.1999 and the matter
was referred to the Umpire.
(e) The appellant-Company moved an application dated
29.01.2000 before the Umpire seeking commencement of de
novo proceedings. On 31.01.2000, the said application was
dismissed as untenable. Learned Umpire, passed an award
dated 21.02.2000, in favour of the respondent-Company to the
tune of Rs. 64,65,782/- along with the interest at the rate of
18% (per cent) with effect from 01.11.1991 till the date of
realization. 
4
(f) Being aggrieved by the Award dated 21.02.2000, the
appellant Company filed objections before the High Court
under Sections 30 and 33 of the Act which was registered as
IA No. 803 of 2001 in CS (OS) No. 795-A/2000. Learned
single Judge of the High Court, vide judgment and order dated
17.04.2007, substantially rejected the objections to the Award
and made a Rule of the Court with slight modifications.
Learned single Judge also observed that the
appellant-Company failed to satisfy that there was any serious
endeavour for getting the evidence recorded again before the
Umpire and waived the right of de novo trial by conduct.
(g) Aggrieved by the judgment and order passed by learned
single Judge of the High Court, the appellant-Company
preferred an appeal being FAO (OS) No. 211 of 2007 before a
Division Bench of the High Court. The Division Bench, vide
judgment and order dated 22.10.2013, dismissed the appeal.
(h) Aggrieved by the judgment and order dated 22.10.2013,
the appellant-Company has preferred this appeal by way of
special leave before this Court. 
5
4) Heard Mr. Basava Prabhu S. Patil, learned senior counsel
for the appellant-Company and Mr. Dhruv Mehta, learned
senior counsel for respondent-Company and perused the
records.
Point(s) for consideration:-
5) The only point for consideration before this Court is
whether an Umpire has to hear the matter de novo on a
Reference or from the stage of disagreement between the
Arbitrators?
Rival contentions:-
6) Learned senior counsel for the appellant-Company
contended that the Division Bench erred in interpreting the
scope of Article 4 to Schedule 1 of the Act to mean that the
Umpire has to hear the Reference only from the stage at which
the Arbitrators disagreed and not de novo. Learned senior
counsel while relying upon Article 4 to Schedule I of the Act
contended that de novo proceedings are essential when the
Arbitrators have disagreed and the Umpire is appointed to
decide the dispute. He further contended that when Umpire
enters into Reference “in lieu of Arbitrators” he steps in the
6
shoes of the Arbitrators and has the same duties as that of
Arbitrators. Accordingly, the Umpire cannot depart from the
requirement that an arbitrator should personally record the
evidence on which he is to rely for the purpose of giving his
decision. The Umpire cannot refuse to hear the witness again;
and if on request of a party for the same, fails to do so, the
Award would be bad for misconduct.
7) Learned senior counsel further contended that the
Division Bench has simply affirmed the findings of learned
single Judge on the question of waiver, damages ought to be
awarded, without appreciating the contentions advanced
especially when it was established from the documents on
record that the appellant-Company had never waived its right
of de novo hearing but had been insisted throughout before
the Umpire to start proceedings de novo. For the purpose, the
appellant-Company placed reliance on communication dated
24.05.1999 and 12.01.2000 addressed to the Umpire and the
application dated 29.01.2000 filed for de novo hearing of the
matter.
7
8) Arguing next with respect to damages granted to the
respondent-Company, it was contended by learned senior
counsel that under the first agreement, goods were to be
imported and 5% commission was to be paid. Therefore, to
award damages for the goods not processed and not delivered
because the same were not imported under the first agreement
is untenable. Learned senior counsel finally contended that
learned single Judge as well as the Division Bench erred in law
and interference by this Court is sought for in the matter.
9) Per contra, learned senior counsel for the
respondent-Company strenuously submitted that the
application filed by the appellant-Company is misconceived,
not maintainable and the relief sought is vague. The
application was moved when the hearing before the Umpire
had already started and the claimant had concluded his
arguments. The very first application for the same was filed
on 29.01.2000 in spite of the fact that the first hearing before
the Umpire took place on 24.04.1999 which got dismissed by a
detailed order categorically recording that the Umpire cannot
sit over or review the order of the Arbitrators which was
8
unanimous and the application was a belated application with
mala fide intentions.
10) Learned senior counsel further submitted that the
understanding and interpretation of Article 4 has to be in
consonance with reason and logic, meaning thereby, the stage
at which the Arbitrators disagree would be the stage at which
the Umpire commences upon and proceeds with the reference.
Therefore, the Umpire is not duty bound to record the same
evidence all over again, more so, when both the parties were
given ample opportunities for presenting their case. Learned
senior counsel further submitted that the Umpire, vide Award
dated 21.02.2000, has categorically noted that the
appellant-Company unduly delayed the proceedings and has
specifically mentioned the dates wherein no appearance was
put in by the other side which resulted in waiver by conduct.
Therefore, the plea of de novo proceedings is erroneous and
against the settled legal proposition of law. Learned senior
counsel finally submitted that there was no irregularity in the
reasoned orders passed by learned single Judge and the
9
Division Bench of the High Court and no interference is sought
for by this Court in the matter.
Discussion:-
11) The first and the foremost point that arises for
consideration is whether in a case where the matter has been
referred to the Umpire owing to disagreement between the
Arbitrators, the Umpire has to confine himself only to hear the
issues on which the arbitrators disagreed or he has to hear the
matter afresh. Further, what does the word de novo hearing
means? By virtue of Section 3 of the Act, unless otherwise
agreed, the provisions of the First Schedule are deemed to be
incorporated in the arbitration agreement. In this view of the
matter, it is necessary to scrutinize Article 4 of the First
Schedule of the Act as the same relates to the matter in
controversy which reads as under:-
“4. If the arbitrators have allowed their time to expire
without making an award or have delivered to any party to
the arbitration agreement or to the umpire a notice in writing
stating that they cannot agree, the, umpire shall forthwith
enter on the reference in lieu of the arbitrators.”
10
12) From a bare perusal of the above, it is clear that an
Umpire enters on a Reference “in lieu of the Arbitrators” and
the Act does not contemplate any distinction with regard to
the conduct of proceedings by the Arbitrators or the Umpire.
It is an undeniable fact that on reference of the matter to the
Umpire, the Arbitrators become functus officio. The Umpire
takes upon himself the exclusive authority of determining the
disputes. He takes the place of Arbitrators, as the expression
“in lieu of the Arbitrators” conveys. Unless there is an
agreement to the contrary, defining or demarcating the powers
of the Umpire, he is expected to discharge the same functions
as Arbitrators with all the attendant powers, duties and
obligations.
13) Either going by the very nature of functions entrusted to
the Umpire or by the provisions of the First Schedule, it is
crystal clear that there is no qualitative difference between the
Arbitrators and the Umpire with regard to the methodology
and modalities to be adopted for reaching a just and fair
conclusion. It is trite to say that an Arbitrator is bound to
observe the principles of natural justice and conform to the
11
fundamentals of judicial procedure. It is his duty to afford a
reasonable opportunity to the parties concerned. However, it
would also be illogical to contend that the Umpire has to start
de novo ipso facto. The very essence of the law of arbitration is
to settle the matter efficiently in a time bound manner. Hence,
when the Umpire enters upon a Reference and replaces the
arbitrators, he is needed to review the evidence and
submissions only on those matters about which the
arbitrators have disagreed unless either party applies for the
rehearing of the evidence of the parties or their witnesses. The
Umpire can surely go through the evidence recorded by the
previous arbitrators but without being influenced by the
opinion expressed by them in that regard and even the notes
taken by previous arbitrators can be relied if there exist
special provisions in the agreement permitting him to do so.
However, if the party makes an application for de novo
hearing, the Umpire is bound to allow the same, subject to the
condition that the application is made at the earliest and the
applicant is not using it as last armory to turn the case
around. An objection on the ground that the Umpire has not
12
reheard the evidence may be waived by the conduct of the
parties; the evidence already recorded before the previous
arbitrator would remain valid and it would not be open for the
parties to get the same recorded afresh later on. It is a well
settled proposition that where a party seeking to impeach an
Award has made no application to the Umpire for rehearing of
the evidence, the same would generally operate as a waiver by
conduct.
14) Having said that the Umpire is bound to hear the matter
de novo on an application filed by the parties, subject to the
satisfaction of other necessary conditions in accordance with
the law of arbitration and before examining whether the
conduct of the appellant-Company amounts to waiver or not,
it is necessary to examine the meaning of the word de novo
hearing before the Umpire to whom the matter is referred in
case of disagreement between the Arbitrators. Learned senior
counsel for the appellant-Company contends that hearing a
matter de novo means the matter is to be started afresh i.e.,
from the very point from where the arbitrators had started. In
other words, it would mean that the matter brought on record:
13
pleadings, evidence; before the arbitrators at the first instance
would become nullity i.e., the proceedings including
statements of claim, reply to claims and counter claims,
statements and cross-examinations of witnesses before the
Arbitrators have no significance. The ascertained point in
dispute and the well known position of the parties would go in
vain and the Umpire should start again with the same process.
An inevitable outcome of the same is that a party is allowed to
overcome the lacuna in the evidence already recorded before
the previous arbitrators. Further, it would give an unnecessary
option to the dishonest litigant to obliterate the evidence
already recorded which would have adverse effect on them.
Further, the witnesses to be examined afresh is a glaring
anomaly that would ensue that the witnesses may not be
available or might give a totally different version or a version
inconsistent with their previous version, owing to the fact of
faded memories. Such an interpretation of the word de novo
trial would result in undue hardship to the parties and will
defeat the very purpose of the Act and render arbitration
ineffective.
14
15) Hence, firstly, the word de novo hearing should be given
a purposive interpretation and it should be understood as a
fresh hearing of the matter on the basis of pleadings, evidence
and documents on record. If the party wants to re-examine a
witness or objects to the documents admitted, the Umpire is to
hear the parties and decide the application in the interest of
justice.
16) Having held that the a party do have a right to call for de
novo hearing subject to the waiver of the same by conduct,
now comes the question whether in fact and circumstances of
the present case the conduct of the appellant-Company
amounts to waiver or not. It was contended that the
appellant-Company has from the very beginning of the hearing
before the Umpire had demanded de novo trial of the matter
and in support of that it relied upon the communication dated
24.05.1999, 12.01.2000 addressed to the Umpire and
application dated 29.01.2000 filed for de novo hearing of the
matter.
15
17) However, having perused the records, it was found that
the very first communication dated 24.05.1999, on which the
appellant-Company has relied upon is a letter written to the
Umpire with regard to the pending proceedings in the said
matter before the High Court and the application that is filed
before the High Court to which the appellant-Company was
referring to in the said letter was an application filed under
Section 5 of the Act for the dispute relating to quantum of fee
of the Umpire. Though the appellant-Company in the said
letter made a note with regard to the de novo hearing of the
matter but the same seems to be an additional armory that
the appellant is putting behind its back as it hasn’t demanded
de novo trial of the said matter neither in the communication
nor thereafter in the proceedings. The appellant-Company next
referred to communication dated 12.01.2000 but the same is
also with regard to the pending proceedings before the High
Court. It is only on 29.01.2000 that the appellant-Company
has filed an application for de novo hearing of the case i.e., at
a stage where the final arguments on the side of the
respondent-Company have been finished and the date was
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fixed for final argument from the side of appellant-Company. If
the appellant-Company was serious in its endeavor that it
should get an opportunity to get the evidence recorded afresh,
an application could easily have been filed before starting the
proceedings before the Umpire. It is only from oblique
references that the appellant-Company seeks to derive such
intent. This aspect is clearly an afterthought which arose
during the culmination of the proceedings before the Umpire.
Further, even the sum and substance of the highly belated
application dated 29.01.2000 for commencement of
proceedings de novo clearly shows that it was not asking for
re-hearing/re-recording of the evidence but was actually
requesting for review of the order of the two Arbitrators
especially for re-examination of Shri K.L. Jain. It is the case of
the appellant-Company that the Arbitrators were wrong in
permitting production of some other witness, by name, Shri
Vijay Gupta instead of Shri K.L Jain. From the above, there is
no doubt that the conduct of the appellant-Company amounts
to waiver and the application filled on 29.01.2000 is nothing
17
but trying a last armory to turn the case around. The Umpire
was right in dismissing the said application.
18) Learned senior counsel for the appellant-Company
contended on merits of the case, however, the law is well
settled with regard to the scope and ambit of the jurisdiction of
the courts to interfere with an arbitration award as has been
settled in a catena of judgments of this Court and it would be
sufficient to quote Ravindra Kumar Gupta and Company vs.
Union of India (2010) 1 SCC 409 wherein it was held as
under:-
“9. The law with regard to scope and ambit of the jurisdiction of
the courts to interfere with an arbitration award has been settled
in a catena of judgments of this Court. We may make a reference
here only to some of the judgments. In State of Rajasthan v. Puri
Construction Co. Ltd. this Court observed as follows:
“26. The arbitrator is the final arbiter for the dispute
between the parties and it is not open to challenge the award on
the ground that the arbitrator has drawn his own conclusion or
has failed to appreciate the facts. In Sudarsan Trading Co. v.
Govt. of Kerala it has been held by this Court that there is a
distinction between disputes as to the jurisdiction of the
arbitrator and the disputes as to in what way that jurisdiction
should be exercised. There may be a conflict as to the power of
the arbitrator to grant a particular remedy. One has to
determine the distinction between an error within the
jurisdiction and an error in excess of the jurisdiction. Court
cannot substitute its own evaluation of the conclusion of law or
fact to come to the conclusion that the arbitrator had acted
contrary to the bargain between the parties. (emphasis in
original) Whether a particular amount was liable to be paid is a
decision within the competency of the arbitrator. By purporting
to construe the contract the court cannot take upon itself the
18
burden of saying that this was contrary to the contract and as
such beyond jurisdiction. If on a view taken of a contract, the
decision of the arbitrator on certain amounts awarded is a
possible view though perhaps not the only correct view, the
award cannot be examined by the court. Where the reasons
have been given by the arbitrator in making the award the court
cannot examine the reasonableness of the reasons. If the
parties have selected their own forum, the deciding forum must
be conceded the power of appraisement of evidence. The
arbitrator is the sole judge of the quality as well as the quantity
of evidence and it will not be for the court to take upon itself the
task of being a Judge on the evidence before the arbitrator.”
19) In Municipal Corporation of Delhi vs. Jagan Nath
Ashok Kumar and Another (1987) 4 SCC 497, it was held by
this Court that appraisement of evidence by the arbitrator is
ordinarily never a matter which the court questions and
considers. It may be possible that on the same evidence, the
court may arrive at a different conclusion than the one arrived
at by the arbitrator but that by itself is no ground for setting
aside the award.
20) Following the above judgments, we are of the opinion
that the question of whether the claims were tenable or not are
based on the contract and which of them had to be granted
were within the exclusive domain of the Arbitrators. In this
case, the Award considered the totality of circumstances, and
weighed the relevant facts on balance while proceeding to
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award damages. The award does not disclose a manifestly
erroneous approach; nor does it omit to consider and apply
legal principles to the facts presented before the Arbitrators.
21) In view of the above discussion, we do not find any
infirmity or error in the approach and judgments passed by
the courts below. There is no merit in this appeal and the
appeal is, therefore, dismissed with no order as to costs.
...…………….………………………J.
 (R.K. AGRAWAL)
.…....…………………………………J.
 (R. BANUMATHI)
NEW DELHI;
APRIL 13, 2018.