Report No. 176
2.30.2 (i) General provision:
Section 42 (1) Section 42 (1) is a general provision stating that subsequent application will be filed as per sub-section (2) to (5). 'Court' is defined to mean the courts and judicial authorities in sub-section (2) to (5). Sub-section (2) deals with courts under Section 2 (1) (e).
2.30.3 (ii) Application under section 8 and section 42 (3)
We shall next deal with Section 8. Where an action is filed before a judicial authority and the respondent successfully pleads are arbitration clause and an arbitral tribunal is appointed. The 'judicial authority' is a court of original jurisdiction, i.e., the Section 2 (1) (e) courts. These situation present no difficulties. If an application seeking reference is filed in these courts, all subsequent applications including these under Section 34 will be filed in the court which entertained the first application.
So far as other courts of original jurisdiction under section 8 are concerned, they are the courts inferior to the Principal Courts in the district or city. If the said courts have appointed an arbitrator at the instance of the defendant, the subsequent application including those under section 34 have to be filed in the Principal Courts to which such courts is subordinate.
If the action is one in a quasi-judicial tribunal under section 8 where at the respondent instance, a reference is made to arbitrator, the subsequent applications (including the one under Section 34 is to be made to the Principal District Court in the district or city, in whose territorial jurisdiction, the judicial authority is located. These provisions are contained in the proposed Section 42 (3).
2.30.4 (iii) Application under section 8A and section 42 (4)
So far as Section 8A is concerned, the procedure is contained in the proposed Section 42 (4) with two Explanation. Now under Section 8A, the reference to arbitrators is made in a pending suit, appeal or revision in the courts which may make reference are the trial courts or even appellate courts. Trial courts which exercise original jurisdiction may be
(a) courts jurisdiction to the Princiapl Court of Civil Jurisdiction in a district or court in a city subordinate to the courts of the Principal Judge, City Civil Courts;
(b) the co-equal courts to the Principal Courts to which the above proceedings might have been transferred;
(c) the above said Principal Courts in their original or appellate jurisdiction;
(d) the High courts in original jurisdiction;
(e) High courts in appellate or revision jurisdiction,
(f) Supreme Court in appellate jurisdiction. Here the definition of 'legal proceedings' under Section 8A is to be kept in view.
The position under Section 42 will then be that where reference is made by the courts subordinate to the Principal courts in the district or city, or by courts of co-equal jurisdiction like the Principal Courts (i.e. on transfer of the matter) or where reference is made by the said Principal courts - in original/appellate jurisdiction, the subsequent applications under part I (including Section 34) are to be filed in the said Principal Courts.
However, if the reference is made by the Supreme Court or a High Court in original or appellate jurisdiction, subsequent applications are to be filed only in the High court or Supreme court, as the case may be. These aspects are set out in Section 42 (4) and the two Explanation.
2.30.5 (iv) Application under section 11 and section 42 (5):
So far as Section 11 is concerned, if the Supreme Court or the High Court have appointed arbitrators, then the subsequent applications including under Section 34 will have to be filed in accordance with section 2 (1) e) - i.e., based on the location of the subject matter in the jurisdiction of the Principal District Court in the district or the Principal Chief Judge, City Civil Court or in the High Court original jurisdiction and depending on pecuniary jurisdiction. This is covered by Section 42 (5).
We have thus provided for all the contingencies in sub-section (1) to (5) of section 42. The existing section with same modifications has been renumbered as sub-section (1).