Om Prakash vs Dev Raj

In this Civil Revision, trial Court''s order dated 7-3-1994 and the Appel- late Court''s order dated 17-11-1994 are assailed.

The facts of the case are that the petitioner-plaintiffs Om Prakash 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 u/s 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. S/Shri Ravi Kumar Kalra, Chaman Lal Rassewat and Santosh Kumar Jain were the arbitrators.

Tht 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 Nos. 1 and 2 in favour of defendant-respondent. Thus his petition filed u/s 34 of the Arbitration Act was allowed and the matter was to be referred to the Arbitrators.

The plaintiff-petitioners filed appeal against the order which was also rejected by the Appellate Court on 17-11-1994.

The petitioners'' learned Counsel''s 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 defend ant-respondent did not participate in the proceedings. To support his contention, he has relied upon The State of Uttar Pradesh and Another Vs. Janki Saran Kailash Chandra and Another,

This contention has little force as the aforesaid authority is distinguishable on facts. In that case, after the receipt of summons, the defendant''s Counsel appeared before the Court and submitted an application praying for one month''s 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 u/s 34 of the Arbitration Act thereafter. In The State of Uttar Pradesh and Another Vs. Janki Saran Kailash Chandra and Another, their Lordships of the Supreme Court have interpreted the words ''steps in the proceedings'' and held that taking other steps in the suit proceedings connotes the idea of doing something in aid of the progress of the suit or submitting to the jurisdiction of the Court for the purpose of adjudication of the merits of the controversy in the suit.

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 date i.e. 15-11-1991, the defendant-respondent filed a petition u/s 34 of the Arbitration Act. In a case of identical facts in Messers Prem Nath Pran Nath v. Amba Parshad AIR 1941 Lah 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 along with the summons. When the defendant appeared in the Court copy of the plaint was given to him and the case was adjourned for filing of the written statement, but the defendant never made such a prayer. Hence it was held that proceedings within the meaning of Section 19 of the Arbitration Act (1899) commence only when the defendant is supplied with a copy of the plaint. It was further held that grant of time by Court for filing written statement is not a step taken by the defendant in proceedings. The same view was reiterated in Dunichand Sons and Co. Vs. Fort Gloster Industries Ltd., In Food Corporation of India v. Yadav Engineer and Contractor AIR 1982 SC 1302, it is held unless the step alleged to have been taken by the party seeking to enforce arbitration agreement is such as would display an unequivocal intention to proceed with the suit and acquiesce in the method of resolution of dispute adopted by the other party namely filing of the suit and thereby indicate that it has abandoned its right under the arbitration agreement to get the dispute resolved by arbitration, any other step would not disentitle the party from seeking relief u/s 34 of the Act." It went further and held that contesting the application for interim injunction or appointment of a Receiver or for interim relief by itself without any thing more would not constitute such a step as would disentitle the party to an order u/s 34 of the Arbitration Act. Hence, I find that both the Courts below have rightly held that the defendant-respondent has not taken any step in the proceedings and has not subjected himself to the jurisdiction of the Court for adjudication of the dispute raised by the plaintiff-petitioner by filing of the suit.

The next contention raised by the petitioner''s learned Counsel is that the award acted upon by the Courts below is unregistered document though it has created a right in the immovable property worth more than Rs. 100/- and it is not made Rule of the Court. Thus, it was a useless document and should not have been taken into consideration. To buttress this argument, he has relied on Ratan Lal Sharma Vs. Purshottam Harit, .

No doubt their Lordships of the Apex Court in Ratan Lal Sharma Vs. Purshottam Harit, have held that award which creates right in immovable property worth more than Rs. 100/- is compulsorily registerable. If the award is not registered, it would not be looked into for passing judgment in terms of the award u/s 17 of the Act.

During arguments, the whole of the award was read over to me. The lower Appellate Court has commented upon its various clauses.

The above contention has no force because by this award no right, title or interest is created, declared or assigned etc. in favour of any party with regard to immovable property worth more than Rs. 100/-. In its clauses there is a specific mention that plaintiff No. 1 was given a right that if he wants he can purchase a certain portion of immovable property in between the houses of both the parties by paying an amount enumerated therein, but this can be done only if the plaintiff gets a Sale Deed registered to this effect. For this purpose, a time limit is also fixed. Thus, it is apparent that this award falls within Section 17(2)(v) of the Registration Act and not u/s 17(1)(v) of the Registration Act. For this proposition I seek support from Sardool Singh Vs. Hari Singh and Others, .

11A. Admittedly this award is not registered and is not made a Rule of the Court. Defendant-respondent is not trying to enforce the terms of this award by moving a petition u/s 34 of the Arbitration Act. He has only made a prayer that under Clause 8 of the award/ agreement since dispute has arisen between the parties with regard to construction of the said wall, it should be referred to Arbitrators. From this point of view also, it is not very relevant whether the award is registered or not or is made a Rule of the Court or not.

In this connection even this objection has no substance that since the date mentioned in the award/agreement has expired, such a petition should not have been allowed. As the award was read over to me during arguments, it clearly indicates that it has two different parts. 8th clause of the award contains an agreement that in future if any dispute arises between the parties with regard to the construction of the wall, it be referred to the Arbitrators named therein. Clause 6th prescribes a time limit within which the plaintiffs were required to purchase the indicated portion of the property by getting a Sale Deed Executed in their favour by paying the stipulated price. Thus clause 8th of the award is severable from the remaining clauses and therefore since it is a document signed by both the parties and thereby it is binding on them, the defendant-respondent is within his rights to get this clause of the agreement enforced against plaintiff No. 1.

Another contention raised is that the defendant-respondent though filed a petition u/s 34 of the Act never stepped into the witness box to show his readiness and preparedness for enforcing the arbitration agreement, even this contention has little force. The petition filed u/s 34 of the Arbitration Act was read over to me during arguments wherein the defendant respondent has expressed his willingness and readiness to get the arbitration agreement enforced. For that purpose if the defendant has not entered the witness box, no adverse inference can be drawn against him. This contention was also made that a photo copy of the award was filed in the trial Court though no application was filed that the original is lost and the defendant be permitted to lead secondary evidence.

From the impugned orders, it is evident that the defendant by examining one of the Arbitrators, proved that the original award is lost and the photo copy not only bears his signature, but also bears the signatures of both the parties. In that context, the tendering of the photo copy in the evidence cannot be held to be illegal.

Last contention is that Shashi Bala was not a party to the arbitration proceedings. In this case Shashi Bala has also joined the plaintiff in filing the suit. Hence against Shashi Bala the suit should have been allowed to proceed. This contention is also meritless. The lower Appellate Court held that when the evidence was recorded, Shashi Bala did not, enter the witness box. There was no evidence before the trial Court to arrive at a conclusion that she is a co-owner of the suit property.

No other point is pressed before me. Consequently, on the basis of above find- ings, this Civil Revision being meritless, is hereby dismissed with costs which are quantified at Rs. 1,000/-.

Petition dismissed.