- (1.)INVOKING the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure (in short 'the CPC') the defendant No. 4/petitioner has called in question the legal validity of the order dated 4-5-1999 passed by the learned District Judge, Raigarh in M. J. C. No. 10/97 by which the consideration of the applications preferred by the applicant under Section 34 of the Arbitration Act read with Section 10 of the CPC and another application filed under Order 7 Rule 11 (d) of the CPC have been deferred for adjudication.
(2.)THE facts which require narration for disposal of this Civil Revision are that the non-applicant No. 1 as plaintiff instituted the suit for partition and separate possession. The claim in the said suit is based on the allegation that the suit properties detailed in Annexure 1-A and Annexure 1-B to the plaint are Joint Hindu Family properties and the plaintiff is a member of the said Joint Hindu Family. The plaintiff has sought for declaration for l/6th share in the said property. Along with the plaint the plaintiff filed an application under Order 33 Rule 1 of the CPC to sue as an indigent person. The defendant No. 4 entered appearance and filed various applications. An application under Section 34 of the Arbitration Act read with Section 10 of the CPC was filed contending, inter alia, that an arbitration proceeding forming the subject-matter of Civil Suit No. 4-A/89 in respect of major portion of the suit property is pending before the Court of First Additional District Judge, Raigarh wherein the plaintiff is also a party and contesting in the matter. It was also mentioned in the application that an award had already been passed on 14-4-19s7 in respect of major portion of the suit property by the sole arbitrator. The Court was also apprised that the said award is pending to be made a rule of the Court. With these averments prayer was made for slay of the proceedings before the Court below.
(3.)THE non-applicant No. 1/plaintiff resisted the prayer and contended that the application filed by the defendant No. 4 was misconceived and not tenable in the eye of law as no suit had been registered. The learned Trial Judge by the impugned order held that the application under Order 33 Rule 2 of the CPC had been registered and there has been no institution of the suit and hence, the provision of Section 34 of the Arbitration Act is not applicable. It was also opined by the learned Judge that the effect of the commencement of the Arbitration and Conciliation Act, 1996 shall be considered only after the proceeding is registered as a suit. Similar view was also expressed with regard to the provision of Section 10 of the CPC.