- (1.) THE revision petition has been filed against the order dt. Oct. 15, 1982, of the learned Additional District Judge No. 1 Alwar. Under the aforesaid order the learned Addl. District Judge allowed the application by the defendant non-petitioners under S.10 of the Civil P.C. and further proceedings in the case were stayed during the decision of Civil Suit No. 28/80.
(2.) THE petitioners filed a suit in the Court of learned District Judge, Alwar in which a prayer was made for dissolution of firm and for accounts of the firm since Oct. 18, 1979 to April 30, 1980 and also thereafter. THE aforesaid suit was filed against the non-petitioners 1 to 3. An application for appointment of Receiver was also filed under O.40, R.1, C.P.C. In that suit on behalf of the non-petitioners 2 and 3 an application under S.34 of the Arbitration Act 1940 (for short, the Act) was filed praying that the proceedings in the suit be stayed. That application was contested on behalf of the petitioner and after hearing learned counsel for the parties the learned District Judge under order dt. Aug. 27, 1980 dismissed the application under S.34 of the Act. THE non petitioners 2 and 3 preferred an appeal against the aforesaid order and this Court under its order dated February 23, 1981 allowed the appeal and the application under S.34 of the Act filed on behalf of the non-petitioners 2 and 3 was allowed and further proceedings in the suit were stayed. This Court further directed the parties to have the dispute which was the subject matter of the proceedings adjudicated by arbitration in accordance with the agreement contained in the partnership deed. After the decision of the aforesaid case by this Court and the stay of the suit under S.34 of the Act, the petitioner sent a notice to the non-petitioners 2 and 3 on June 16, 1981 in forming them that within 15 days after the receipt of the notice an arbitrator may be appointed and on their failure to do so the petitioners shall take further necessary proceedings according to law after the expiry of the notice. It may be stated that Brijesh Kumar respondent 3, appointed Shri Rajendra Kumar Mittal as his Arbitrator but respondent 2, Prabhudayal refused to accept the notice dated June 16, 1981 and the refusal was endorsed by the postman. Since Prabhudayal did not appoint any Arbitrator on his behalf the petitioner made an application under S.8 read with S.20 of the Act on October 17, 1981, before the learned trial Court for the appointment of Arbitrator/Arbitrators and directing them to make an award and thereafter to make the award as a rule of the Court. Several adjournments were taken by the non-petitioners 2 and 3 but instead of filing reply to the application filed by the petitioner, the application under S.10, C.P.C. praying that further proceedings on the apptication under S.8/20 of the Act be stayed. This application was opposed on behalf of the petitioners and as aforesaid the learned Court under its impugned order allowed the application and stayed the proceedings on the application under S.8/20 of the Act till the decision of the earlier suit. It may be stated straightway that the order dt. Oct. 15, 1982 cannot be sustained One test of the applicability of S.10, C.P.C. to a particular case is whether, on the final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Proceedings under S.8 read with S.20 of the Act by virtue of Sub-Sec. (2) of S.20 of the Act have to be numbered and registered as a suit between one or more parties as plaintiff and the other as defendant, as it is well known that the suit is registered by filing a plaint. In Inderpal Singh Hassanwalia v. M/s. Bir Tibetan Woollen Mills, AIR 1974 Delhi 95, an application under S.20 of the Act was filed by Inderpal Singh praying that the agreement be filed in the Court and arbitrator may be appointed. An objection was raised on behalf of the defendants that on Nov. 24, 1969 a suit for injunction was filed in the Court and the suit was based on agreement dt. Mar. 10, 1969. It is further stated that the application under S.34 of the Act was filed and that the suit should be stayed. The question before the Court was as to whether S.10, C.P.C. can apply where one of the two proceedings is not a suit. The Court in paras 12 and 13 of its judgement referred to the case law on the point and observed that : "This argument can be disposed of on the short ground that S.10 of the Code of Civil Procedure applies only to suits and cannot apply where one of the two proceedings is not a suit." Reference in that case was made to the case of Gurbakhsh Singh v. Sant Ram, AIR 1929 Lah 533 and it was held that S.10 did not apply to applications under para 20 Schedule 2, C.P.C. as they are not the plaint or registered as suit. Another case on which reliance was placed in the aforesaid case is Ruby General Insurance Co. Ltd. v. Bharat Bank Ltd., AIR 1950 East Punj 352, wherein it was held that the proceedings under S.20 Arbitration Act are not suit. In re Mrs. Violet Peterson, AIR 1940 Oudh 113, a view has been taken that in the case of an application for grant of probate the procedure of a suit shall be followed and not that proceedings on becoming contentious, shall become regular suit instituted on the date of their becoming contentious, and therefore S.10, C.P.C. is not strictly applicable. Therefore, merely because Sub-Sec. (2) of S.20 of the Act provides, that the application shall be numbered and shall be registered as suit it cannot be said that S.10, C.P.C. will apply. It may be stated that earlier a suit for dissolution of partnership was filed by the petitioner and an application under S.34 of the Act was made and thereafter this Court had stayed the trial of the suit with the observations that the petitioner is directed to have the dispute which is the subject matter of the suit adjudicated by arbitration in accordance with the arbitration agreement contained in the partnership deed. Thus, the suit was stayed. It has already been stated that it was under the orders of the Court that the petitioners filed an application under S.8 read with S.20 of the Act. I am of the opinion that if a suit for compensation or other proceedings is pending under the Arbitration Act, S.10, C.P.C. cannot apply and the proceedings under the Act cannot be stayed. Merely because the application under S.20 of the Act is registered as a suit, it does not become the suit within the meaning of the Code of Civil Procedure, and S.10, C.P.C. will have no application.
(3.) CONSEQUENTLY, I allow this revision petition and set aside the order of the learned Addl. District Judge, Alwar and dismiss the application filed by the non-petitioners 2 and 3 under S.10, C.P.C. for stay of the proceedings. Costs made easy. Petition allowed. 1987;