Opp. Parties Mr v. Mohapatra
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: Secreatary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 01-Aug-2023 19:48:56 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.10124 of 2015 B.Nagabhushan Gupta Petitioner Mr. Anish Ankur Mishra, Advocate on behalf of Mr. S.S.Rao, Senior Advocate …. -versus- Baratam Sanjeev Rao and others …. Opp. Parties Mr. V. Mohapatra, Advocate (For Opposite party No.1)
Legal Reasoning
Mr. S. Mohanty, Advocate (For Opposite Party Nos.4 and 5) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 31.07.2023 8. 1. This matter is taken up through hybrid mode. 2. Order dated 23rd June, 2015 passed by learned Senior Civil Judge, Rayagada (Annexure-5) passed in CS No.23 of 2003 is under challenge in this CMP, whereby an application filed by the Plaintiff/Petitioner under Section 89 of CPC to refer the matter to arbitration, has been rejected. 3. It is submitted by Mr. Mishra, learned counsel for the Petitioner that that earlier there was a family settlement and an arbitration agreement was also executed for settlement of the dispute in respect of joint family property. The matter was in fact referred to the Arbitrator for amicable partition of the property. Since the arbitration could not proceed as expected by the Plaintiff and in the meantime, Defendants proposed to alienate parcels of the suit property, the Plaintiff initially filed a suit for injunction. Subsequently, the present suit has been filed for partition. On being summoned, the Defendants filed their written Page 1 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: Secreatary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 01-Aug-2023 19:48:56 // 2 // statement. Before commencement of trial of the suit, an application was filed by the Plaintiff/Petitioner to refer the matter for arbitration. Defendants also filed a memo stating that the matter should be referred to arbitration. But to the misfortune of the Plaintiff, the petition was taken up after three witnesses were examined. Learned trial Court holding that the suit is pending since 2003 and in the meantime ten years had already elapsed together with the fact that three witnesses have already been examined, rejected the said application. Hence, this CMP has been filed. 3.1 It is his submission that a petition under Section 89 CPC can be entertained at any stage of the suit. Since there is an arbitration agreement between the parties, the jurisdiction of the Civil Court is barred. When the said fact was brought to the notice of the Civil Court it should have referred the matter for arbitration. He also went through different clauses of Section 89 CPC and submits that it is obligatory on the part of learned trial Court to refer the matter for arbitration when a prayer is made to that effect. 4. Mr. Mohapatra and Mr. Mohanty, learned counsel appearing for the contesting Defendants/Opposite Parties submitted that the suit was filed by the Plaintiff himself and the application has been filed at a much belated stage. Before that an arbitration proceeding was pending as submitted by learned counsel for the Petitioner. It is their submission that in the meantime all the witnesses have been examined and the suit is posted for argument. Thus, exercising power Section 89 CPC to refer the matter to the Arbitrator at this stage will not only delay the further proceeding of the suit but also take away the entire Page 2 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: Secreatary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 01-Aug-2023 19:48:56 // 3 // exercise made by learned trial Court till date. No fruitful purpose will be served in referring the mater to arbitration at this stage, as the suit is posed for argument. They therefore, prayed for dismissal of the CMP. 5. Considering the rival contentions of learned counsel for the parties and on perusal of record, it appears that there is an arbitration agreement between the parties for settlement of the dispute with regard to joint family property. In fact, an arbitration proceeding was also initiated and was pending when the suit for partition was filed by the Plaintiff. In spite of the same, the present suit for partition has been filed by the Petitioener It is submitted by Mr. Mishra, learned counsel for the Petitioner that after filing of the written statement, a petition was filed to refer the matter to arbitration. The Defendants did not object to the same. They also filed a memo stating that the matter should be referred to the Arbitrator. 6. The provision under Section 89 CPC should be read in harmony with Section 8 of the Arbitration and Conciliation Act, 1996. Of course, there is no bar to refer the matter for arbitration at any stage of the suit. 7. In the instant case, the petition under Section 89 CPC was entertained after three witnesses were examined. As observed by learned trial Court, the application under Section 89 CPC was filed after ten years of filing of the suit. In the meantime, evidence from both the sides have been closed as submitted by learned counsel for the parties and the suit is posted for argument. It is also submitted by Mr. Mishra, learned counsel for the Petitioner that there was a compromise between the parties. When Page 3 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: Secreatary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 01-Aug-2023 19:48:56 // 4 // the evidence from both the sides have been closed and the suit is posted for argument, referring the matter to arbitration at this stage will certainly amount to wastage of judicial time. If the matter is referred, it will be a de nove trial of the matter and will have adverse effect on the object of Section 89 CPC. In that view of the matter, this Court is of the considered opinion that learned trial Court has committed no error in refusing such application at the fag end of the suit. 8. Accordingly, the CMP being devoid of any merit is dismissed and learned trial Court is directed to dispose of the suit at the earliest giving opportunity of hearing to the parties concerned. Issue urgent certified copy of the order on proper application. (K.R. Mohapatra) Judge s.s.satapathy Page 4 of 4