VASHDEV BHEROOMAL PAMNANI Vs. M BIPINKUMAR AND CO

JUDGEMENT

(1.) BOTH the civil revision applications are disposed of by this common judgment. The petitioner and the respondents are the same in both the revision applications. The petitioner (hereinafter referred to as "the plaintiff") instituted Civil Suits No. 4 of the 1985 and 8 of 1985 in the Court of the Civil Judge (Senior Division), Thane, for a perpetual injunction restraining the respondents (hereinafter referred to as "the defendants"), their agents and employees from entering into the suit premises situate at Plot No. B-46, 16/29 C, Wagle Industrial Estate, Thane. In both the suits the plaintiff filed an application for a temporary injunction marked Ex. 5 in both suits. The learned trial Judge passed an ex-parte temporary injunction on 2nd January, 1985 and the defendants were noticed to show cause why the ex parte order for temporary injunction should not be confirmed in both the suits. The defendants put in appearance in both the suits and moved an application under section 34 of the Arbitration Act, 1940, which is marked Ex. 12 in both the suits. According to the defendants, the conducting agreement under which they were allowed to conduct the business embodied an arbitration clause and, therefore, it was necessary to refer the dispute to arbitration and the suits were liable to be stayed under section 34 of the Arbitration Act. On hearing the parties, the learned trial Judge allowed the said application in both the suits by his orders dated 31st January, 1985. While staying the suits under section 34 of the Arbitration Act the learned trial Judge also stayed the ad interim temporary injunction granted by him as per the plaintiffs application for a temporary injunction (Ex. 5). Feeling aggrieved by the stay of the ad interim temporary injunction and refusal by the learned trial Judge to hear the parties on the application of the plaintiff for a temporary injunction, the plaintiff has preferred those two revision applications against the separate orders passed by the learned trial Judge in two suits on 31st January, 1985 on Ex. 12.

(2.) THE plaintiff sought an ad interim injunction and this Court on 4th April, 1985 granted an ex parte temporary injunction in terms of prayer (b) of the revision applications and the same was confirmed on 24th April, 1985. Thus the ex parte ad interim injunction granted by the trial Court on 2nd January, 1985 is being continued in view of the ad interim temporary injunction granted by this Court on 4th April, 1985.

(3.) IT appears that at the hearing of the application under section 34 of the Arbitration Act the attention of the trial Judge was not drawn to the provisions of section 41 of the said Act. The learned Judge thought that on stay of suit proceedings under section 34 of the Act, all proceedings in the suit, including the hearing of the application for a temporary injunction, must be stayed. Therefore, while staying the suit proceedings under section 34 of the Act he also stayed the ad interim injunction granted by him and did not hear the parties for passing final orders on the plaintiffs application for a temporary injunction. IT is obvious that the learned trial Judge failed to exercise the jurisdiction vested in him to hear an application for a temporary injunction and pass appropriate orders there on by the impugned orders in both the suits. Therefore, the order of the learned trial Judge staying the ad interim injunction granted by him in both the suits it hereby set aside. The learned trial Judge shall hear the parties on the plaintiffs application Ex. 5 in both the suits on merits and shall pass orders according to law, and pending the decision on these applications for a temporary injunction the ad interim injunction passed by the learned trial Judge shall continue.