VAYES NARAIN AND OTHERS Vs. SWAROOP NARAIN

JUDGEMENT

(1.) This is defendants' appeal under Sec. 39 of the Arbitration Act, rejecting the application made by them under Sec. 34 of the said Act for stay of Suit No. 45 of 1977, The said suit was filed by Saroop Narain, Respondent who is own father are defendant appellants. The relief claimed by the plaintiff respondent was for injunction restraining defendant appellants from interfering with his possession over the agricultural plots and an Ambassador Car, the details of which have been in the plaint.

(2.) 7th Jan. 1978 was the date fixed in the suit when the defendant appellants appeared to oppose the application for injunction. On that date they took time for filling objection to the application for injunction and also for filling written statement. On 6-2-78 the defendant appellants moved an application under Sec. 34 of the Arbitration Act for stay of the suit on the ground that there had been a family partition between them and their father plaintiff respondent on 1-2-76 and in that family partition the parties had also agreed to get their dispute decided through arbitration of one Rajendra Pratap Singh. The defendants prayed that as the dispute involved in the present suit was covered by the arbitration clause of the aforesaid family settlement, the proceedings of the suit were liable to be stayed.

(3.) The application filed under Sec. 34 was contested by the plaintiff respondent. After hearing the parties the trial court found that the defendant appellants having taken time to file written statement, could not invoke Sec. 34 for the purpose of the stay of the suit. It also held that there was no evidence of readiness and willingness on the part of the defendant appellants to abide by the result of arbitration and, therefore, the application was misconceived. The trial court further held that the clause relating to arbitration inserted in the family partition was auspicious in nature. On these findings the trial court rejected the application.Aggrieved, the defendant appellants have filed the present appeal.