Devi Prasad Singh - (1.) HEARD Sri K. M. Garg, learned counsel for the petitioner and Sri P. N. Khare learned counsel for the respondents at length and perused the record.
(2.) THE short matrix of the present controversy relates between the members of same family who are the petitioners and respondents. In the present writ petition, the respondent No. 3 had filed a suit for ejectment for arrears of rent with regard to property in question before Small Causes Court registered as Suit No. 7/94. THE petitioner Nos. 1 and 2 including father Krishna Kumar were defendants in the said suit. During the pendency of said suit the parties including Sri Krishna Kumar entered into arbitration agreement deciding right, title and shares of the members of the family on 31st July, 1994. Arbitration agreement was admittedly registered on 12.8.1994, before the Sub-Registrar, Chandpur district Bijnore. It has not been disputed that the arbitrator had given award on 24th August, 1994 and the award includes property in question. THE share of Krishna Kumar was also adjudicated by the arbitrator. It is also mentioned in the award that the pending litigation before the Small Cause Court in District Bijnore, shall be withdrawn by parties on or before 21.12.1994. It is alleged that the arbitration award was given to Sri Suresh Chandra, so that he may file the award in the Court. However, it appears that the award was not filed by Sri Suresh Chandra in the Court. In view of the above, on 11.5.1995 Sri Krishna Kumar had initiated the proceeding in the court of Civil Judge, Bijnore by registering a Case No. 127 of 1995 to make the award the rules of Court under sub-section (2) of Section 14 of the Arbitration Act, 1940 (in short "the Act"). It has not been disputed that the delay in filing the application under sub-section (2) of Section 14 of the Act, was condoned by the Court concerned. Subject to the aforesaid back drop, late Krishna Kumar had filed an application under Section 34 of the Act in the court of Small Cause, Bijnore in S.C.C. Suit No. 7 of 1994 for staying the proceeding. It was pleaded that in view of the provisions of Section 34 of the Act the Court should stay the proceeding of the suit and application moved under sub-section (2) of Section 14 of the Act, should be adjudicated first.
(3.) THE application filed by the petitioners was rejected on 19.4.1996 by the Small Cause Court, Bijnore by observing that whether the property in question in joint property or not is a subject-matter which cannot be adjudicated without recording evidence. Feeling aggrieved by the order dated 19.4.1996 the petitioner preferred a revision which was registered as Revision No. 17 of 1996 in the court of Additional District Judge, Bijnore and same was also dismissed upholding the orders passed by the trial court observing that it is not a fit case for staying proceeding under Section 34 of the Act. While passing the order dated 17.4.1997, it has been observed that whether the defendants are tenants or not, whether they are in agreement or not, are all matters of controversy which is required adjudication by recording of evidence. Feeling aggrieved the petitioner approached this Court under Article 227 of the Constitution of India with the assertion that learned court below has failed to exercise the jurisdiction conferred by Section 34 of the Act. The submission of the learned counsel for the petitioners is that arbitration award should have been given primacy over the suit and proceeding should have been stayed. The Court should have firstly adjudicated the application moved under sub-section (2) of Section 14 of the Arbitration Act, 1940 for the enforcement of arbitration agreement. The things which were settled amicably should not be re-opened through regular suit unless arbitrator's award itself is held to be illegal or not sustainable under the law or on any other grounds.;