AJAY BIR SINGH Vs. KRISHAN PARTAP AND ORS

JUDGEMENT

(1.) The petitioners-defendants are aggrieved by order dated 6.8.1994 passed by Additional Distt. Judge (1), Kangra at Dharamshala, whereby the appeal of respondent No. 1 plaintiff was allowed and order dated 18.11.1991 of Sub-Judge 1st Class, Nurpur, was set aside. Sub- Judge 1st Class had allowed the application of petitioners-defendants and proforma respondents-defendants, under Sec. 34 of the Arbitration Act (hereinafter called the 'Act') and stayed the suit of respondent No. l - plaintiff. Originally, in the suit, Kartar Singh Sandhu was defendants besides, now proforma respondent No. 2, Dalip Singh.

(2.) Both the defendants, after putting in appearance in the suit, filed application under Sec. 34 of the Act. Before this application, could be decided Kartar Singh Sandhu had died and his legal representatives i.e. the present petitioners and his widow, now proforma respondent No. 3, were brought on record. In the appeal, filed by respondent No. 1- plaintiff, before the District Judge, all the three were made party besides Dalip Singh, now proforma-respondent No. 2. The petitioners and Dalip Singh chose to remain absent even after due service of the appeal and they were proceeded ex-parte. Only widow of Kartar Singh-Sandhu, now proforma respondent No. 3, had put in appearance through Shri P.P. Gupta, learned counsel, whose power of attorney is on record. On 6.8.1994, District Judge tried conciliation for 75 minutes between the parties and brought about compromise according; to which learned counsel appearing for Smt. Kawaljit Kaur, proforma respondent No. 3, withdrew the application under Sec. 34 of the Act and consequently the order dated 18.11.1991 of Sub-Judge 1st Class was set aside the appeal was allowed.

(3.) This Court has heard learned counsel for the parties and gone through the record. Referring to sub-rule (5) of Order 23 CPC, Shri Bhupender Gupta, learned counsel for the petitioner, has urged that the statement of learned counsel appearing for Kawaljit Kaur was only on her behalf, as such, the application, which was jointly moved on behalf of the petitioners as well as proforma respondent No. 2, could not be dismissed. In support of his submission, he has relied upon the judgment in Thayammal Vs. Rangaswami Reddy, AIR 1956 Madras 15 , Dangar Bharmal Handu Vs. Som Devkaran Raghavji and others, AIR 1953 Kulch 35 and Velu Malavarayan Vs. T.M.C. Kuppuswanu Pillai, AIR 1920 Madras 233 . The proposition of law laid down in these judgments cannot be disputes) but these judgments are on the facts of each case in which these were delivered. So far the present case is concerned, the petitioners as well as proforma respondent No. 2, did not appear before District Judge despite due service on them and they were proceeded ex-parte which clearly shows that they were not contesting the appeal in which respondent No. 1 plaintiff had challenged the order dated 18.11.1991 allowing the application under Sec. 34 of the Arbitration Act, which amounts to abandoning their claim in that application, as such, the District Judge was at liberty to pass the impugned order.