UNION OF INDIA versus ORIENT ENGG. & COMMERCIAL CO. LTD. & ANR.

Citation: [1978] 1 S.C.R. 632 · Decided: 07-10-1977 · Supreme Court of India · Bench: V.R. KRISHNA IYER · Disposal: Appeal(s) allowed

Judgment (excerpt)

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63 2 
UNION OF INDIA 
v. 
ORIENT ENGG. & COMMERCIAL CO. LTD. & ANR. 
1 
October 7, 1977 
[V. R. KRISHNA IYER, JASWANT SINGH AND D. A. DESAI, JJ.] 
1'Vitne.~s-Suntn1oni11g of a witness-Arbitrator or other quasi-judicial autho-
rity, whether covered by s. 121 of the Evidence Act-Duty of the Cou1t before 
issuing sum1nons under Order XLVI Rule 3, C.P.C. read with s. 121 
of the 
Evidence Act when parties present a list of witnesses to be sun11no11ed. 
Respondent Nd. 1 filed, under Order XVI Rules 1 and 2 read \Vith s. 151, 
C.P.C., a list of witnesses to be summoned includirig the Arbitrator \Vho made 
an a-w·ard in a matter betwee_n the appellant and the respondent No. 1. 
The 
Registrar of the High Court in the routine course granted sumn1ons '~'ithout 
satis'fying himself as to the sufficiency of cause to summon the arbitrator as 
required under Order XVI Rule 3, C.P.C. An objection petition u/s. 151, C.P.C. 
filed before the learned Judge of the High Court against the orders of the 
Registrar was dismissed. 
Allowing the appeal, the Court, 
HELD : ( 1) It is not right that every one who is included in the witness 
list is automatically summoned, but the true rule is that if grounds are made 
out for su1nmoning a witness, he will be called. The court must realise that 
its process should be used sparingly and after careful deliberation if the arbitrator 
should be brought into the witness box. If a party has a case of 1nala {ides 
and makes out prin1a facie that it is not a frivolous charge or has other reason-
ably relevant matters to be brought out, the court may, in given circumstances, 
exercise its power to summon even an arbitrator because nobody is beyond the 
reach of truth or trial by court. [634 A-B, C-DJ 
(2) Courts should bear in mind the reason behind s. 121 of the Evidence 
Act when invited to issue summons to an arQitrator. It will be very embarrass-
ing and in many cases objectionable if every quasi-judicial authority or tribunal 
were put to the necessity of getting into the witness box and testify as to what 
¥.'eighed in his mind in reaching his verdict. The slightest attempt to get to 
the materials of his decision, to get back to his mind and to examine him 
as to why and how he arrived at a particular decision should be immediately 
and ruthlessly excluded as unreasonable. When an arbitrator has given 
an 
award, if grounds justifying his·1 being ca11ed as a witness are affirmatively made 
out, the court may exercise its powers--0therwise not. 
In the instant case the court has not approached· the question from 
the 
proper ~rspective and on the materials on record, there is no justification for 
the examination of the arbitrator. [633 C-D, HJ 
Khub Lal v. Bisluunbhar Sa'1ai A.I.R. 1925 Allahabad 103, approved. 
[The Court left open to the High Court to issue necessary proce$$ on 
a 
fresh application stating why he wants to examine the arbitrator, if and when 
"°' 
rnade by the respondent.1 
CIVIL APPELLATE JURISDICTION 
Civil Appeal No. 1296 ilf 1977. 
,, 
Appeal by Special Leave from the Judgment and Order _,, dated 
25-1-77 of the High Ci;iurt of Delhi at New Delhi in T. No. 2253 of 1976 
in Suit No. 459-A of 1974. 
r1 
Soli J. Sorabji, Addi. Solicitor General E. C. Agarwala anq G11'ish 
Chandra for the Appellant. 
( 
UNION v. ORIENT ENGG. & COMMERCIAL co. (Krishna Tyer, /.) 633 
Bakshi Shivcharan Singh and H. S. Marwah for Respondent No. 1 
The Order of the Court was delivered by 
KRJ'SHNA IYER, J.-We live and learn from counsel's arguments each 
day and in this case we were asked to unlearn. 
Counsel for the appellant has objected, in this appeal, to the examina-
tion, as a witness, of an arbitrator who has ·given his award on a dispute 
between the appellant and the .!st respondent. 
His contention is that, 
on broad principle and public policy, it is highly obnoxious to summon an 
arbitrator or other adjudicating body to give evidence in vindication of 
his award. 
This is a wholesome principle as is evident from s. 121 
of the Indian. Evidence Act. 
That provision states that no Judge or 
Magistrate shall, except upon the special order of some court to which 
he is subordinate be compelled to answer any questions as to his own 
conduct in court as such Judge or Magistrate or as anything which came 
to his knowledge in court as such Judge or Magistrate, but he may be 
examined as to other matters which occurred in his presence whilst he 
was so acting. 
Of course,

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