Vashdev Bheroomal Pamnai vs M. Bipinkumar and Co.

Tated, J.—Both the civil revision applications are disposed by this common judgment. The petitioner and the respondents are the same in both the revision applications. The petitioner (hereinafter referred to as " the plaintiff") instituted Civil Suits Nos. 4 of 1985 and 8 of 1985 in the Court of the Civil Judge, Senior Division Thane, for a perpetual injunction restraining the respondents ,their agents and employees from entering into the suit premises situate at Plot No. B46, 16/29 "C" Wagle Industrial Estate, Thana. In both the suits the plaintiff filed an application for a temporary injuction market Ex. 5 in both the suits. The learned trial Judge passed an ex parte temporary injunction on 2nd Januarys ,1985 and the defendants were noticed to show cause why the exparte order for temporary injunction should not be confirmed in both the suits. The defendants put in appearance under S. 34, Arbitration Act, 1940, which is market Ex. 12'' in both the suits. According to the defendants, the conducting, agreement under which they were allowed to conduct the business embodied and arbitration clause and, therefore, it was necessary to refer the dispute to arbitration and the suits were liable to be stayed under S.s 34, Arbitration Act. On hearing the parties the learned trial judge allowed the said application in both the suits by his order dated 31 st January, 1985. While staying the suits under S. 24 Arbitration Act, the learned trial Judge also stayed the ad interim temporary injunction granted by him as per the plaintiff''s application for a temporary injunction (Ex.''5'') Feeling aggrieved by the stay of the ad interim temporary injunction and refusal by the learned trail Judge to hear the parties on the plaintiff for a temporary injunction the plaintiff has preferred those two revision applications against the separated orders passed by the learned trial Judge in two suits no 31st January 1985 on Ex. 12''.

the plaintiff sought an ad interim injunction and this Court on 4th April, 1985 granted an ex parte temporary injunction in terms of prayer (b) of the revision applications and the same was confirmed on 24 the April, 1985 Thus the exparte and interim injunction granted by the trial court on 2nd January, 1985. Is being continued invites of the ad interim temporary injunction granted by this court on 4th April, 1985.

The learned Counsel for the Plaintiff in both the revision application stated that the learned trial Judge was not right in staying the ad interim temporary injunction granted by him while staying the suits under S. 34, Arbitration Act. According to him in view of S. 41 arbitration Act, read with Item. No. 4 in the Second Schedule to the said Act, the Court could deal with the said act, the Court could deal with the plaintiff''s application for a temporary injunction, though it stayed the suit proceedings under S. 34 of the said Act. Section 41 Arbitration Act, reads as follows;--

"41 Procedure and powers of Court - Subject to the provisions of this Act and of rules made there under -

(a) the provision of the CPC 1908, shall apply to all proceedings before the Civil and to all appeals under the Act, and

(b) the Court shall have for the purpose of the in relation to arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose before the court.

Provided that nothing in Cl. (b) shall be taken to prejudice any powers which may be vested in an arbitrator or umpire for making orders with respect to any of such matters."

Item No. 4 in the Second Schedule to the Arbitration Act reads thus:--

"Interim injunctions'' or the appointment of a Receiver."

The arbitrators do not have any powers under the Arbitration Act of the grant interim orders for the Protection of the subject matter of the Dispute. The powered to pass interim orders mentioned in Cl. (b) of S. 41, Arbitration Act, can be exercised in respect of any of the matters set out in the Second Schedule for the purpose of and in relation to arbitration proceedings even before proceedings under some order section of the said Act are started, but only for the purpose of ant in relation to the arbitration proceedings.

It appears that at the hearing of the application under S. 34 Arbitration Act, the attention of the trial judge was not drawn the the provisions of S. 41 of the said Act. The learned Judge though that on stay of suit proceedings under S. 34 of the Act all proceedings of the suit including the hearing of the application for a temporary injunction must be stayed. Therefore while staying the suit proceedings under S. 34 of the Act, he also staved the interim injunction granted by him and did not hear the parties for passing final orders of the plaintiff''s application for a temporary injunction .It is obvious that the learned trial judge failed to exercise the jurisdiction vested in him to hear an application for a temporary injunction and pass appropriate orders thereon by the impugned orders in both the suits whereby he stayed that ad interim injunction granted by him in both suits. Therefore, the order of the learned trial Judge staying the ad interim injection granted by him in both the suit is hereby set aside. The learned trial judge shall hear the parties on the plaintiff''s application ex. 5, in both the suits on merits and shall pass orders according to law and pending the decision on those application for a temporary injunction the ad interim injunction passed by the learned trial judge shall continue.

The rule is accordingly made absolute. No order as to costs in both the revision applications.

Rule made absolute.