GIAN CHAND Vs. TIRATH RAM GUPTA

JUDGEMENT

(1.) TIRATH Ram Gupta, the plaintiff, brought a suit out of which this petition has arisen, against Messrs. Gian Chand Balmukand for the latter's ejectment from a shop-cum-flat designated by No. 7 and situated in Section 18-C, Chandigarh, as also for the recovery of a sum of Rs. 575. 90 on account of arrears of rent and damages for unauthorised use and occupation of the same property. Gian Chand petitioner was served with a summons which was addressed to the defendant firm, on the 9th of June, 1971, when a copy of the plaint was delivered to him. The summons required the defendant firm to appear in Court on the 15th June, 1971, and to file its written statement. On the date last mentioned Shri V. P. Gagneja, advocate, appeared on behalf of the plaintiff at the hearing whereat the petitioner was present in Court along with Shri R. S. Verma, Advocate, when the trial Court passed the following order :-" for written statement to come up on 28-6-1971. " on the 28th June, 1971, counsel for the parties appeared in Court and an application under Section 34 of the Arbitration Act (hereinafter referred to as the act) was filed on behalf of the petitioner. The allegations made in that application were that "during the month of April, 1971," the plaintiff had contacted the petitioner with a demand for enhancement of the rent of the premises in dispute from Rs. 350/-to Rupees 450/-per mensem, that the two of them could not agree on the rate of future rent and that after some discussion they entered into an agreement which was reduced, into writing and according to which "two shopkeepers of the market, one to be appointed by each party, as arbitrators" were to decide "the dispute regarding enhancement of rent and ejectment after verifying of rent of other shops in the market". It was also averred in the application that the written agreement was handed over to the plaintiff. The prayer made by the petitioner, who asserted that he was at the time of the application and earlier "ready to perform the agreement of arbitration on his part", was that the matters in dispute between the parties be referred to the arbitrators as agreed upon. This application was accompanied by an affidavit. The Court directed the plaintiff to file his reply to the application on the 5th of July, 1971. On that date the plaintiff filed in court stamped application headed: 'reply of the application under Section 34 of the Indian Arbitration Act and application under Section 33 of the said Act on behalf of the plaintiff-respondent. " in this application the alleged arbitration agreement was stoutly denied and it was prayed that the suit be proceeded with. In the accompanying affidavit the same stand was reiterated. The order passed by the trial Court at the hearing was : "reply filed. In his reply-cum-application under Section 33 of the Indian arbitration Act the plaintiff had made a prayer that the question of existence of the arbitration agreement be decided on affidavits. Parties should file the affidavits. To come up on 12-7-1971". When the case was taken up on the 12th of July, 1971, in the presence of the counsel for the parties, an affidavit sworn by the defendant was filed by his counsel for the plaintiff stated that he did not want to file any fresh affidavit. The case was adjourned for arguments to the 19th of July 1971, and after hearing learned counsel for the parties, the trial Court dismissed the application made by the petitioner under Section 34 of the Act on the 22nd of July, 1971, with the finding that in fact no agreement to refer the matters in dispute between the parties to arbitration was ever arrived at and that the application had been filed merely to delay the proceedings in the suit. This finding was upheld in appeal by the learned District Judge, Chandigarh, who further came to the conclusion that the application made by the petitioner to the trial Court could not proceed inasmuch as the petitioner had taken a step in the proceedings of the suit on the 15th of June, 1971, by making a request which was accepted, for an adjournment to enable him to file the written statement. It is against the order of the two courts below that the petitioner has come up in decision to this Court.

(2.) MR. Siri Chand Goyal, learned counsel for the petitioner, has raised the following points before me :

(3.) POINT (d) is also without force. The matter is concluded by concurrent findings of fact given by the Courts below and I do not see any reason to differ from the conclusion arrived at by them. I may add, however, that an analysis of the allegations made in the affidavit filed by the petitioner in support of his application under Section 34 of the Arbitration Act makes it clear that they are baseless and have been concocted merely to delay the proceedings. Had it been otherwise, the story set up by the petitioner could not have lacked certain essential details, namely, the date of the arbitration agreement, the names of the persons in whose presence it was entered into and the names of the scribe and the marginal witnesses, which find no mentioning the affidavits. The matter may be looked upon from another angle. The relations between landlords and tenants in Chandigarh are governed by the principles underlying the provisions of the Transfer of Property Act and are to subject to the provisions of the East Punjab Urban Rent Restriction Act or any such other piece of legislation conferring special benefits on tenants. The plaintiff could, therefore, successfully eject the petitioner through a suit instituted by him at any time after serving the petitioner with a short notice. The petitioner was, therefore, at a disadvantage which he could escape by recourse to the terms of the arbitration agreement, if any was entered into by the parties, so that in that case he would have retained the agreement himself and not allowed the plaintiff to pocket the same. As it is, there is no reason why the agreement could not have been executed in duplicate and the defendant armed with one of the counterparts. Normally it would also have been executed on a stamped paper the details of the transaction of the purchase of which would have found a mention in the affidavits which is not so. The conclusion is irresistible that no agreement was really entered into and that one has been set up merely to gain time.