# Anurag and others v. Judge Small Cause Court/Civil Judge (Senior Division), Bijnor and others

- **Citation:** (2009) 2 ILRA 560
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-15
- **Case number:** Civil Misc. Writ Petition No.25322 of 1997
- **Bench:** Devi Prasad Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anurag-and-others-v-judge-small-cause-court-civil-judge-senior-division-bijnor-41657
- **Pages:** 4

## Headnote

Sri P.N. Khare
Sri D.C. Mathur
Sri Prashant Khare
S.C.

Arbitration
Act-1940-Section
14
(2)-
readwith Section 34-Suit for specific
performance-award given by Arbitrator
on same controversy-Application to stay
the proceeding-rejection on ground the
plaint
claiming
absolute
ownerincorrect-award
can
not
be
treated
waste paper.

Held: Para 14

In the present case, only because the
respondent No.3 is alleged to be to the
owner of the property, shall not make
out a case to render the award as waste
paper. Once the agreement is duly
signed and registered and the arbitrator
renders award, then the proceedings of
the regular suit ordinarily should be
stayed by the court.
Case law discussed;
AIR 2008 SC page 48

## Text

560 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.7.2009

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.

Civil Misc. Writ Petition No.25322 of 1997

Anurag and others
...Petitioners
Versus
Judge Small Cause Court/Civil Judge (Senior
Division), Bijnor and others ...Respondents

Counsel for the Petitioners:
Sri K.M. Garg

Counsel for the Respondents:
Sri P.N. Khare
Sri D.C. Mathur
Sri Prashant Khare
S.C.

Arbitration
Act-1940-Section
14
(2)-
readwith Section 34-Suit for specific
performance-award given by Arbitrator
on same controversy-Application to stay
the proceeding-rejection on ground the
plaint
claiming
absolute
ownerincorrect-award
can
not
be
treated
waste paper.

Held: Para 14

In the present case, only because the
respondent No.3 is alleged to be to the
owner of the property, shall not make
out a case to render the award as waste
paper. Once the agreement is duly
signed and registered and the arbitrator
renders award, then the proceedings of
the regular suit ordinarily should be
stayed by the court.
Case law discussed;
AIR 2008 SC page 48

(Delivered by Hon'ble Devi Prasad Singh, J.)

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 No. 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 SubRegistrar, 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.

3. 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, 1940 (in
short the Act). It has not been disputed
that the delay in filing the application
2 All] Anurag and others V. Judge Small Cause Court/Civil Judge and others
561
under sub-section (2) of Section 14 of the
Act,
was
condoned
by
the
Court
concerned.

4. 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 SCC
Suit No. 7 of 1994 for staying the
proceeding. It was pleaded that in view of
the provisions of Section 34 of the Act of
the Court should stay the proceeding of
the suit and application moved under subsection (2) of Section 14 of the Act,
should be adjudicated first.

5. 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 is 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.

6. 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, 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.

7. While defending the impugned
orders the learned counsel for the
respondents invited the attention to the
para 4 of the counter affidavit and
submitted that the courts below has
observed that the respondent No. 3 is
owner of property in question, hence, the
dispute between the parties should be
decided by deciding the pending suit on
merit. The submission of the learned
counsel for the respondents in nut shell is
that since respondent No. 3 is owner, right
and title conferred by the arbitration
agreement should not come in the way of
pending regular suit. The suit should be
decided to settle the controversy at rest
between the parties in question.

8. The Arbitration Act 1940 was
legislated to settle the disputes amicably
and to avoid the multiplicity of litigation
with regard to dispute of movable or
immovable
property.
Accordingly,
Arbitrators
appointed
in
terms
of
agreement were given ample power to
decide the controversy between the
parties. Ordinarily it is expected that once
the arbitration agreement is finalized and
arbitrator renders award then the parties
shall abide by it to settle the controversy
at rest. The award should be followed in
562 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
its letter and spirit unless it suffers from
substantial illegality or arbitrator acted
with
some
malicious
intent
while
rendering the award. In the present case,
no argument has been advanced by
respondents' counsel with regard to the
award being biased or that they were not
parties to the arbitration agreement.

9. Since the award was not enforced
and was not filed in court, the application
under sub-section (2) of Section 14 of the
Act was moved. The provision contained
in under sub-section (2) of Section 14 of
the Act, is statutory and confers statutory
right and once application is moved, then
it is obligatory for the court concerned to
record finding keeping in view the
statutory provisions contained in the Act.

10. In Case during the pendency of
the application under sub-section (2) of
Section 14 of the Act the regular suit is
permitted to continue, then it shall
frustrate the Act. It is always incumbent
to the courts to exercise the jurisdiction to
decide the application under sub-section
(2) of Section 14 of the Act expeditiously.
The court has ample power to modify or
cancel the award under the various
provisions of the Act as reflected from
Chapter 2 of the Act.

11. Section 34 of the Act gives
ample powers to courts to stay the suit
wherever there is an arbitration agreement
between the parties. For convenience,
Section 34 of the Act is reproduced as
under:

"34.
Power
to
stay
legal
proceedings
when
there
is
an
arbitration
agreement.---Where
any
party to an arbitration agreement or any
person claiming under him commences
any legal proceedings against any other
party to the agreement or any person
claiming under him in respect of any
matter agreed to be referred, any party to
such legal proceedings may, at any time
before filing a written statement or taking
any other steps in the proceedings, apply
to the judicial authority before which the
proceedings are pending to stay the
proceedings; and if satisfied that there is
no sufficient reasons why the matter
should not be referred in accordance with
the arbitration agreement and that the
applicant was, at the time when the
proceedings were commenced, and still
remains, ready and willing to do all things
necessary to the proper conduct of the
arbitration, such authority may make an
order staying the proceedings."

12. It is settled law that keeping in
view the facts of the case the provisions
contained in a Section, "may" be
construed as mandatory (vide, AIR 2008
SC page 48 Dhampur Sugar Mill
Limited. Vs. State of U.P.). Accordingly,
keeping
in
view
the
facts
and
circumstances of the case where there is
no dispute with regard to award rendered
by the arbitrator, the word, 'may', used in
Section 34 should be construed as
mandatory.

13. A plain reading of the Section 34
of the Act indicates that if the court
satisfied that the controversy has been
settled in the arbitration agreement, then
pending proceedings under suit should be
stayed. The satisfaction of the court
should be based on the genuineness of the
arbitration agreement and not merely on
the title of property. In case during
arbitration agreement parties give up their
rights and titles in each other's favour and
agreement so entered, is registered, award
2 All] Kanhaiya Lal Sharma V. State of U.P.
563
is given and the award so given, does not
suffer from any infirmity or substantial
illegality at the face of record, then
ordinarily, the application moved under
sub-section (2) of Section 14 of the Act
should be given primacy over the pending
suit and proceedings of the suit should be
stayed
till
the
court
decides
the
application filed by a party under the Act.
The satisfaction should be based on
genuineness of award and not the right
and title of parties with regard to property
in dispute.

14. In the present case, only because
the respondent No.3 is alleged to be to the
owner of the property, shall not make out
a case to render the award as waste paper.
Once the agreement is duly signed and
registered and the arbitrator renders
award, then the proceedings of the regular
suit ordinarily should be stayed by the
court.

15. In view of the above, learned
court below had incorrectly interpreted
the provisions contained in Section 34 of
the Act. The court below has failed to
exercise the jurisdiction vested in it. The
writ petition deserves to be allowed.

16. Accordingly, the writ petition is
allowed. A writ in the nature of certiorari
is issued quashing the impugned order
dated 19.4.1996 passed by the opposite
party No.1 and the judgment and order
dated 17.4.1997 passed by the respondent
No.2 with consequential benefits. The
proceedings of JSCC Suit No.7 of 1994
shall be stayed till final adjudication of
the controversy by the court in pursuance
of the powers conferred by Section 14 of
the Act. The court concerned is directed
to decide the application moved under
sub-section (2) of Section 14 of the Act in
accordance with law after providing due
opportunity to parties expeditiously and
preferably within six months from the
date of receipt of a certified copy of this
judgment/order. It is clarified that while
allowing the writ petition, this Court has
not entered into the merit of the
controversy. and the court concerned,
shall decide the application moved by the
petitioner independently.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.07.2009

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Bail Application No. 30457
of 2008

Kanhaiya Lal Sharma ...Applicant (In jail)
Versus
State of U.P.
...Opposite party

Counsel for the Applicant:
Sri Irfan Chaudhary

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure-Section 439Bail-offence under Section 420, 409,
467, 468, 471 I.P.C.-applicant working
as Assistant Post Master-allowed the
agent to withdraw amount of Rs. 3 lac by
case by affixing forged signature of
depositor-instead of issuing the chequeitself goes to show the conspiracy of
applicant with postal agent-termed as
heinous crime if released on bail-people
would be reluctant in deposit of money
with post office-parity claimed-held-can
not be accepted.

Held: Para 25 & 26

In view of the observations made in
aforesaid
decisions,
I
am
of
the