RAMESHCHANDRA RAMLAL KHANDELWAL Vs. SHANKARLAL MAGANLAL JOSHI

JUDGEMENT

(1.) AN interesting and important point that arises for consideration in this civil revision application is with regard to the proper construction of section 34 of the Arbitration Act, 1940 (hereinafter referred to as the Act).

(2.) THE facts leading to this revision application under section 115 of the Civil Procedure Code are that respondent Nos. 1 and 2 (hereinafter referred to as plaintiffs) filed Regular Civil Suit No. 417 of 1982 in the Court of the learned Civil Judge (Junior Division), Kalyan against the present petitioner (hereinafter referred to as the Defendant No. 1) and respondent No. 3 (hereinafter referred to as Defendant No. 2) for dissolution of their partnership firm and for accounts. THE plaintiffs made an application in the said suit under Order 39, Rule 1 of the Civil Procedure Code praying for interim and ad interim reliefs. THE Court issued a show cause notice in the matter of the said application and also summons in the suit and both were made returnable on September 14,1982. Defendant No. 1 was served with a show cause notice along with copies of the plaint and the deed of partnership and the application for interim and ad interim reliefs. THE learned advocate appearing on behalf of defendant No. 1 made an application on September 14, 1982 for adjournment to enable him to take instructions from defendant No. 1 for filing written statement and reply. Adjournment was accordingly granted. THEreafter on October 5, 1982 an application signed by defendant No. 1 and countersigned by his advocate Mr. V.V. Modak was filed to the effect that there was a clause for arbitration in the partnership deed for referring the dispute to an arbitrator and despite that the suit was filed by the plaintiffs which they could not do and hence the dispute be referred to an arbitrator and the suit be stayed. By his order dated November 23, 1982 the learned trial Judge granted the said application of defendant No. 1 and referred the matter for arbitration under section 34 of the Act and the suit was stayed. Being aggrieved by this order the plaintiffs filed an appeal, being Miscellaneous Civil Appeal No. 4 of 1983 in the District Court at Thane. THE learned 2nd Extra Assistant Judge, Thane vide his judgment and order dated August 3, 1983 allowed the said appeal and set aside the order passed by the trial Court with directions that the suit should proceed according to law. Aggrieved by the said judgment and order of the learned Assistant Judge, defendant No. 1 filed the present revision application.

(3.) SECTION 34 of the Act reads as under :