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PUNJAB AND HARYANA HIGH COURT
Dr. Sarojnei Saksena, J.
Om Parkash and another - Petitioners
Versus
Dev Raj - Respondent
Civil Misc. No. 346-CII of 1995 and Civil Revision No. 132 of 1995.
Decided On : 30 May, 1995
ARBITRATION ACT, 1940 - SECTION 34 - STEP IN PROCEEDINGS - AWARD - REGISTRATION - ENFORCEMENT - SEVERABILITY - WITNESS - SECONDARY EVIDENCE - CO-OWNER:
Fact of the Case:
Plaintiffs filed a suit for permanent injunction against the defendant to restrain him from constructing a wall on the disputed land. The defendant filed a petition under Section 34 of the Arbitration Act, 1940, praying that the matter be referred to the arbitrators as per the arbitration agreement between the parties.
Finding of the Court:
The court held that the defendant did not take any step in the proceedings and did not subject himself to the jurisdiction of the court by filing a written statement or taking any other step in the suit. The court also held that the award did not create any right, title, or interest in immovable property worth more than Rs. 100/- and therefore did not require registration. The court further held that the defendant was within his rights to get the arbitration agreement enforced against the plaintiff.
Issues: 1. Whether the defendant took any step in the proceedings that would disentitle him from seeking relief under Section 34 of the Arbitration Act? 2. Whether the award was compulsorily registerable and whether it could be looked into for passing judgment in terms of the award under Section 17 of the Act? 3. Whether the defendant was required to step into the witness box to show his readiness and preparedness for enforcing the arbitration agreement? 4. Whether the tendering of the photo copy of the award in evidence was illegal? 5. Whether the suit should have been allowed to proceed against Shashi Bala, who was not a party to the arbitration proceedings?
Ratio Decidendi: 1. The court held that the defendant did not take any step in the proceedings by appearing in court without receiving summons and copy of the plaint, and by filing a petition under Section 34 of the Arbitration Act on the next adjourned date. 2. The court held that the award did not create any right, title, or interest in immovable property worth more than Rs. 100/- and therefore did not require registration under Section 17(1)(b) of the Registration Act. The court also held that the award fell within Section 17(2)(v) of the Registration Act and therefore did not require registration. 3. The court held that the defendant was not required to step into the witness box to show his readiness and preparedness for enforcing the arbitration agreement, as he had already expressed his willingness and readiness in the petition filed under Section 34 of the Arbitration Act. 4. The court held that the tendering of the photo copy of the award in evidence was not illegal, as the defendant had proved that the original award was lost and the photo copy bore the signatures of both the parties. 5. The court held that the suit should not have been allowed to proceed against Shashi Bala, who was not a party to the arbitration proceedings and there was no evidence before the trial court to arrive at a conclusion that she is a co-owner of the suit property.
Final Decision: The court dismissed the plaintiff's civil revision petition with costs.
Dr. Sarojnei Saksena, J. - In this Civil Revision, trial courts order dated 7.3.1994 and the Appellate Courts order dated 17.11.1994 are assailed.
2. The facts of the case are that the petitioner-plaintiffs Om Parkash and Shashi Bala filed a Civil Suit for permanent injunction against the defendant-respondent Dev Raj to restrain him from constructing a wall on point B to G shown in the site plan attached with the plaint. In that case, the defendant-respondent filed a petition under Section 34 of Indian Arbitration Act, 1940 praying that the matter be referred to the arbitrators. It was also pleaded that a dispute regarding the disputed land had previously arisen between the parties, matter was referred to the Arbitrators who gave their award and in that award there was a provision in the 8th clause that if at the time of construction any dispute arises regarding it, the matter will be referred to the Arbitrators. Shri Ravi Kumar Kalra, Chaman Lal Rassewat and Santosh Kumar Jain were the arbitrators.
3. The petitioners-plaintiffs contested the petition on many grounds. The Trial Court framed three issues. The plaintiffs-petitioners declined to adduce any evidence. Defendant-respondent examined two witnesses. The trial Court decided issues No. 1 and 2 in favour of defendant-respondent. Thus his petition filed under Section 34 of the Arbitration Act was allowed and the matter was to be referred to the Arbitrators.
4. The plaintiff-petitioners filed appeal against the order which was also rejected by the Appellate Court on 17.11.1994.
5. The petitioners learned Counsels first submission is that since the defendant-respondent appeared before the Lower Court and participated in the adjudication of that Civil suit, thereafter he was debarred from invoking the provisions of Section 34 of the Arbitration Act. He contended that both the Courts below have wrongly held that the defendant-respondent did not participate in the proceedings. To support his contention, he has relied upon State of Uttar Pradesh and another v. M/s Janki Saran Kailash Chandra and another, AIR 1973(2) Supreme Court 2071.
6. This contention has little force as the aforesaid authority is distinguishable on facts. In that case, after the receipt of summons, the defendants Counsel appeared before the Court and submitted an application praying for one months time to file written statement. Therefore, it was held that since the defendant has taken a step in the suit proceedings, he has no right to file the petition under Section 34 of the Arbitration Act thereafter. In Janki Sarans case (supra) their Lordships of the Supreme Court have interpreted the words steps in the proceedings and held the taking other steps in the suit proceedings connotes the idea of doing something in aid of the progress of the suit or submiting to the jurisdiction of the Court for the purpose of adjudication of the merits of the controversy in the suit.
7. In this case from both the impugned orders, it is evident that the plaint was presented on 29.10.1991. The plaintiff was directed to remain present on 30.10.1991. On this date without receiving summons and copy of the plaint, the defendant appeared in the Court on his own. The Court thereafter adjourned the case for 15.11.1991 for filing the written statement. On 30.10.1991 the defendant-respondent neither submitted an application nor prayed for an adjournment to file written statement because till then he did not receive copy of the plaint. On the next adjourned ate i.e. 15.11.1991, the defendant-respondent filed a petition under Section 34 of the Arbitration Act. In a case of identical facts in Messrs Prem Nath Pran Nath v. Amba Parshad, AIR 1941 Lahore 64, it was held :-
"It is quite different matter if, when he has had time to prepare a written statement, he then asks for a further adjournment for his own convenience."
In that case copy of the plaint was not sent alongwith the summons. When the defendant appeared in the Court copy
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