Refusal to recuse is interlocutory and is not revisable under Section 115 CPC.

The respondent had filed an application under Section 9(ii) of the Arbitration and Conciliation Act, 1996 before the Commercial Court at Gangtok, seeking interim injunctive relief.

On 31 May 2021, the Commercial Court restrained the State from disturbing the respondent’s possession and enjoyment of the leased premises until commencement of arbitration.

The Supreme Court subsequently appointed a sole arbitrator, who passed an award against the State on 5 December 2022.

The State challenged the award under Section 34 of the Arbitration Act before the Commercial Court at Gangtok.

After the Judge at Gangtok recused himself because the respondent’s counsel was his spouse, the Section 34 proceedings were administratively transferred to the Commercial Court at Mangan.

The Judge at Mangan had earlier passed the Section 9 order dated 31 May 2021.

The State therefore sought his recusal, contending that he had already expressed views on the merits.

By order dated 13 April 2026, the Commercial Court rejected the recusal request, holding that prior adjudication of an interim application concerning the same subject matter was not by itself a ground for recusal.

The State challenged that order under Section 115 CPC.

1. Whether a refusal by the Commercial Court to recuse its Presiding Judge is revisable under Section 115 of the Code of Civil Procedure, 1908, when allowing the application would only change the Judge and would not finally dispose of the proceedings.

2. Whether a Judge who earlier decided an application under Section 9 of the Arbitration and Conciliation Act, 1996 must recuse from hearing a subsequent Section 34 challenge arising from the same arbitration merely because the earlier order contained prima facie findings on the agreement and interim relief.

Section 115 CPC permits revision only where a subordinate court has exercised jurisdiction not vested in it, failed to exercise jurisdiction vested in it, or acted illegally or with material irregularity; under its proviso, an interlocutory order is revisable only if, had it been made in favour of the applicant, it would have finally disposed of the suit or proceeding.

In DLF Housing & Construction Co. Pvt. Ltd. v. Sarup Singh, (1972) SCR 368, the Supreme Court held that Section 115 is not an appellate jurisdiction and does not permit correction of mere errors of fact or law absent jurisdictional error or material procedural irregularity.

Tek Singh v. Shashi Verma, Civil Appeal No. 1416 of 2019, was relied upon for the principle that, after the 1999 amendment, revisions against interlocutory orders are generally barred.

Under Neelam Manmohan Attavar v. Manmohan Attavar, (2021) 3 SCC 727, a Judge’s prior adverse order, without more, is not a ground for recusal; a party cannot seek to select its preferred Judge.

A Section 9 proceeding concerns interim or protective measures, whereas a Section 34 proceeding involves a limited statutory challenge to the arbitral award; prior prima facie findings do not automatically establish bias.

The Court first held that the impugned refusal to recuse was interlocutory.

Even if the State had succeeded, the order would merely have resulted in a change of Presiding Officer and would not have finally disposed of the Section 34 proceedings.

It therefore fell outside the revisional jurisdiction preserved by the proviso to Section 115 CPC.

On the merits of recusal, the Court distinguished the nature and scope of the two proceedings: Section 9 addresses interim protection, while Section 34 concerns the statutory grounds for setting aside an arbitral award.

The earlier Section 9 order expressly considered the contractual clauses only for the limited purpose of deciding interim relief and recorded a prima facie view.

The State did not demonstrate a real and reasonable apprehension of bias, nor did it show that the earlier order conclusively determined an issue central to the Section 34 challenge or expressed such strong views on the merits as to impair impartial adjudication.

Permitting recusal merely because the Judge had earlier ruled against a party would enable litigants to choose their Judge and undermine the administration of justice.

The Court further held that the Judge was not required to recuse merely because he had previously decided the respondent’s Section 9 application and expressed a prima facie view on the agreement.

In the absence of a real and reasonable apprehension of bias, the refusal of recusal was upheld.

The revision petition was accordingly rejected, with parties directed to bear their own costs; the order was directed to be sent to the Commercial Court at Mangan for information.