IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 5502 of 2009
Date of Decision : December 14, 2009
Kuljeet Singh
....Petitioner
Versus
Haily Sharma
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. P.S.Rana, Advocate
Mr. R.K.Gupta, Advocate
T.P.S. MANN, J.
Order passed by Additional Civil Judge (Senior Division),
Karnal, on 1.9.2009 while dismissing the application of the defendant-
petitioner under Section 8 of the Arbitration and Conciliation Act, 1996
and refusing to refer the matter to the Arbitrator, has been challenged by
him by filing the present revision under Article 227 of the Constitution
of India.
The plaintiff-respondent, while claiming to be an equal
partner with the defendant-petitioner in M/s Maha Laxmi Enterprises,
filed a suit for rendition of accounts. The said suit was filed in
September 2000. More than seven years later, the defendant filed
application dated 26.4.2008 for rejection of the plaint or in the
alternative for referring the matter to the Arbitrator.
C.R. No. 5502 of 2009 -2-
It is not in dispute that after the notice of the suit was
issued, the defendant-petitioner appeared before the trial Court. The
suit was adjourned to 12.12.2000 for filing of written statement.
However, the defendant failed to file his written statement despite
availing a number of opportunities and vide order dated 10.12.2001 his
defence was struck off. It was followed by the defendant filing an
application before the trial Court for recalling the order of striking off
the defence, which was also dismissed on 17.11.2003. The defendant
then moved this Court by filing Civil Revision No. 6019 of 2003, which
was dismissed on 20.1.2004. The defendant then filed another revision,
i.e., Civil Revision No. 477 of 2004, for assailing the initial order dated
10.12.2001 passed by the trial Court while striking off his defence. The
subsequent revision was disposed of on 29.1.2004 whereby he was
granted an opportunity to file written statement on 10.2.2004, subject to
payment of costs of Rs.2,000/-. The written statement was duly filed.
Even a rejoinder was filed by the plaintiff to the said written statement.
The plaintiff then filed an application, i.e., C.M. No. 15817-CII of 2007
in the subsequent revision, which was disposed of in terms of order
dated 22.2.2008 whereby the earlier order dated 29.1.2004 passed in the
said revision granting opportunity to the defendant to file his written
statement, subject to costs, was recalled and the revision itself was
dismissed. Lateron, the defendant-petitioner filed the application in
question under Section 8 of the Arbitration and Conciliation Act, 1996
C.R. No. 5502 of 2009 -3-
and under Order VII Rule 11 read with Section 151 C.P.C., before the
trial Court with a prayer that either the plaint be rejected or the matter be
referred to the Arbitrator.
In case the defendant-petitioner was interested in getting
the matter referred to the Arbitrator, he was required to file application
under Section 8 of the Arbitration and Conciliation Act within a
reasonable time of his appearance in the suit, which he did not do so.
Instead, he started seeking time for filing his written statement as if he
wanted to contest the suit itself. He availed of a number of
opportunities for filing his written statement. While granting more time
to the defendant for filing his written statement even costs were imposed
but despite the same, he failed to file his written statement. Left with no
other option, the trial Court struck off his defence. He then filed an
application for recalling the said order but his application was dismissed
by the trial Court. He knocked the doors of this Court by filing a
revision against the order passed by the trial Court whereby his prayer
for recalling the order of striking off his defence, was declined. The
said revision was dismissed by this Court. The petitioner then filed
another revision for challenging the earlier order passed by the trial
Court while striking off his defence. This revision was disposed of on
29.1.2004 and he was granted an opportunity to file his written
statement, which he did file. The plaintiff then challenged the order
dated 29.1.2004 by filing C.M. No. 15817-CII of 2007, which was
C.R. No. 5502 of 2009 -4-
accepted by this Court on 22.2.2008 and the order dated 29.1.2004
passed in the subsequent revision and permitting the defendant to file
his written statement was recalled and the revision was dismissed. It is
at this stage that the defendant-petitioner thought of getting the matter
referred to the Arbitrator by filing application dated 26.4.2008 before
the trial Court. Once the defendant started seeking time before the trial
Court for filing his written statement and failing to do so for a period of
more than one year he precluded himself from asserting before the Court
that the matter be referred to Arbitrator. Moreover, even after allowing
of his second revision on 29.1.2004 although the said order was lateron
recalled and the revision was dismissed on 22.2.2008, the defendant did
file his written statement before the trial Court. Now after the passing
of the order dated 22.2.2008 by this Court, the written statement filed by
him cannot be considered by the trial Court and finding no other option
with him, he came up with the application in question under Section 8
of the Arbitration and Conciliation Act and under Order VII Rule 11
read with Section 151 C.P.C.
In view of the above, no ground for interference in the
impugned order is made out. The revision is, therefore, dismissed.
( T.P.S. MANN )
December 14, 2009 JUDGE
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