OM PRAKASH Vs. DEV RAJ

JUDGEMENT

(1.) IN this Civil Revision, trial Court's order dated 7-3-1994 and the Appellate Court's order dated 17-11-1994 are assailed.

(2.) THE facts of the case are that the petitioner-plaintiffs Om Prakash and Shashi Bala filed a Civil Suit for permanent injunction against the defendant-respondent Dev Raj to restrain him from constructing a wall on point B to G shown in the site plan attached with the plaint. In that case, the defendant-respondent filed a petition under Section 34 of Indian Arbitration Act, 1940 praying that the matter be referred to the arbitrators. It was also pleaded that a dispute regarding the disputed land had previously arisen between the parties, matter was referred to the Arbitrators who gave their award and in that award there was a provision in the 8th clause that if at the time of construction any dispute arises regarding it, the matter will be referred to the Arbitrators. S/Shri Ravi Kumar Kalra, Chaman Lal Rassewat and Santosh Kumar Jain were the arbitrators.

(3.) THE petitioners' learned Counsel's first submission is that since the defendant-respondent appeared before the Lower Court and participated in the adjudication of that Civil Suit, thereafter he was debarred from invoking the provisions of Section 34 of the Arbitration Act. He contended that both the Courts below have wrongly held that the defendant-respondent did not participate in the proceedings. To support his contention, he has relied upon State of Uttar Pradesh v. M/s. Janki Saran Kailash Chandra, AIR 1973 SC 2071.