HIMMATLAL CHATURDAS CHOKSI Vs. KESHAVLAL CHATURDAS CHOKSI

JUDGEMENT

(1.) e judgment and order passed by the learned Civil Judge (S.D.) at Vadodara on 8/08/1980 below the application at Exh. 5 in Special Suit No. 304 of 1979 is under challenge in this Civil Appeal under Sec. 39 of the Arbitration Act, 1940 ('the Act' for brief) at the instance of the original plaintiff. Thereby the learned trial Judge accepted the original defendant's application under Sec. 34 of the Act and stayed the further proceedings, of the suit instituted by the original appellant.

(2.) It may be mentioned that during the pendency of this Appeal before this Court the original appellant has left for his heavenly abode and is survived by his heirs and legal representatives substituted in his place by the order passed by this Court on 23/12/1992 in Civil Application No. 5145 of 1992. For the sake of convenience I shall refer to the parties as they were arraigned in the suit proceedings, that is, the original appellant as the plaintiff and the respondent herein as the defendant.

(3.) The plaintiff and the defendant were brothers. It appears that they had the ancestral business of goldsmith in Vadodara. They appear to have got along well for some time in their joint business. They acquired some property also in Vadodara. After some time they appear to have agreed to have a separate business and a separate residence also for each brother Thereupon they executed one agreement on 9/08/1970 and agreed to partition their joint business assets and to have a separate residence for each brother in the self-acquired property and to have separate shops on the ground floor portion of the property. It was agreed that the defendant was to have his shop on the front side of the property and the plaintiff on the rear side thereof. It was further agreed that the matter should be resolved through the joint arbitration of Soni Khimchand Mukhand and Soni Natwarlal Ratilal in the case of disputes between the parties with respect to the manner in which they were residing in the property or the manner in which they were carrying on their respective business therein. It appears that out of the two named arbitrators in the aforesaid agreement one Soni Khimchand Mulchand died some time before the dispute between the two brothers, that is, the plaintiff and the defendant, was brought to the doorsteps of the Civil Court (S.D.) at Vadodara The plaintiff filed one suit in the Court of the Civil Judge (S.D.) at Vadodara against the defendant for partition of the property ('the suit property' for convenience) referred to in the aforesaid agreement of 9/08/1970 ('the suit agreement' for convenience). It came to be registered as Special Civil Suit No. 304 of 1979. On service of its, summons to the defendant, -he applied to the Court for stay of the suit proceedings under Sec. 34 of the Act. His application came to be taken on record at Exh. The plaintiff appears to have filed his reply at Exh. 9 on the record of the case and to have resisted the application at Exh, 5 on the record of the case on various grounds. After hearing the parties, by his judgment and order passed on 8/08/1980 below the application at Exh. 5 in Special Civil Suit No. 304 of 1979, the learned Civil Judge (S.D.) at Vadodara accepted the said application and ordered stay of the suit proceedings. The aggrieved plaintiff has thereupon invoked the appellate jurisdiction of this Court under Sec. 39 of the Act by means of this Appeal.