SREENIVASALU CHETTIAR Vs. PARTHASARATHI NAIDU

JUDGEMENT

(1.) THE defendant in O. S. No. 75 of 1978, District Munsif's Court, Mayuram, who succeeded in obtaining stay of further proceedings in the suit under S. 34 of the Arbitration Act, 1940 (hereinafter referred to as the Act) before the learned District Munsif of Mayuram and lost before the learned Subordinate Judge, Mayuram, is the petitioner in this civil revision petition. Certain facts which would help to appreciate the rival contentions of the parties are not in dispute. It is admitted that the petitioner and the respondent entered into a lease agreement dated 21-12-1964 under which if the respondent wants the petitioner to vacate the premises, sufficient time had to been mid a provision for the nomination of four arbitrators to decide the market value of the superstructure was also made and the value so fixed should be paid by the respondent to the petitioner. Originally, the respondent instituted O. S. No. 397 of 1975 on the file of the District Munsif's Court, Mayuram, for the recovery of possession and that suit was also decreed. However, on appeal, in A. S. No. 28 of 1977, Sub-Court, Mayuram, preferred by the petitioner, the suit was dismissed. THEreafter, the respondent issued a notice on 25-1-1978 to the petitioner terminating the tenancy in favour of the petitioner and demanding surrender of possession of the proper expressing his willingness to the value of the superstructure is as the compound wall in a sum of Rs. 950/-. In response to this, the petitioner had on 8-2-1978 sent a reply setting out the terms of the agreement between the parties dated 1-12-1964 and in particular inviting the attention of the respondent that resort would be had to the provisions of the Arbitration Act in the event of the respondent filing the suit for recovery of possession. It was thereafter that the respondent instituted a suit in O. S. No. 75 of 1978 on 15-3-1978 praying for a decree against the petitioner to surrender possession of the suit property with the superstructure or to surrender possession without the superstructure and for other incidental reliefs. It is not disputed that the petitioner was served with the summons in the suit and the suit was posted for appearance on 16-6-1978. On that day, the petitioner entered appearance through counsel and a vakalat on his behalf was also filed. It is admitted that the suit was adjourned to 17-7-1978 for filing of the written statement by the petitioner. However, on 12-7-1978 the petitioner filed an application under S. 34 of the Arbitration Act to stay all further proceedings in the suit till the determination of the rights of the parties in accordance of the provisions of the Act. That application was opposed by the respondent herein on the since the petitioner had entered appearance through counsel and had requested time for written statement, that would amount to participation of the proceedings and a submission to the Jurisdiction of the court and therefore, S. 34 of the Act cannot be invoked by the petitioner.

(2.) THE learned District Munsif Mayuram, who heard this application on 1-111978, in the course of his order dated 13-11-1978 was of the view' that the court automatically and in the usual course, adjourned the suit to 17-7-1978 for filing the written statement and no oral representation was made by the learned counsel for the petitioner for filing the written statement and therefore, it cannot be said that the petitioner had participated or had taken any step in the proceedings as contemplated under S. 34 of the On this conclusion, the learned District Munsif held that the petition was maintainable and allowed the same. However, on appeal in C. M. A. No. 2 of 1979, Sub-Court. Mayuram the learned Subordinate judge held that the circumstance that time hid been granted for filing the written statement indicates that it must have been only on the request of the petitioner and that it is not known how the learned District Munsif was able to recollect and remember as to what happened on 1641-1978 application when the hearing of the application was on 1-11-1978. Under those circumstances the learned Subordinate judge held that time had been granted by the court for filing the written statement only on the representation of the learned counsel for the petitioner and therefore, the petitioner had participated in the proceedings and submitted to the jurisdiction of the court and consequently, the-application under S. 34 of the Act is not maintainable. In this view, the order passed by the learned District Munsif was set aside and the appeal was allowed.

(3.) REVISION dismissed.