[1.0] Present Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 has been preferred by the petitioner herein - original defendant to quash and set aside the impugned order dated 07.02.2012 passed by the learned Additional Senior Civil Judge, Anjar, Kutch below application Exh.34 in Regular Civil Suit No.19 of 2008 by which the learned trial Court has dismissed the said application submitted by the petitioner herein to refer the dispute for arbitration.
[2.0] Having heard Shri Joshi, learned advocate appearing on behalf of the petitioner and considering the impugned order, it appears that as such the petitioner herein - original defendant submitted to the jurisdiction of the learned trial Court and participated in the proceedings and not only that but he submitted the application at Exh.33 requesting to reopen his right of cross-examination and thereafter only the petitioner submitted the application Exh.34 to refer the dispute for arbitration. Therefore, when the petitioner submitted to the jurisdiction of the trial Court, participated in the proceedings, the learned trial Court has rightly rejected the said application Exh.34 by which a request was made to refer the dispute for arbitration. It is required to be noted that the suit came to be filed against the petitioner in the year 2008. The petitioner - original defendant did not file the written statement and therefore, the stage to file the written statement was closed on 18.09.2008. Thereafter, the learned trial Court framed the issues at Exh.15 on 29.03.2008. On 11.09.2009, the defendant replaced his advocate and new advocate came to be appointed. That thereafter the suit proceeded further and the plaintiff submitted examination-in-chief on affidavit at Exh.30 on 29.09.2010. Though sufficient opportunity was given to the defendant for cross-examination the defendant did not cross-examine the witness and therefore, his right for cross-examination of the plaintiff came to be claimed on 29.09.2010. That thereafter the petitioner - defendant submitted the application Exh.33 on 13.12.2010 to reopen his right of cross-examination. Pending the said application, petitioner submitted the application Exh.34 requesting to refer the dispute to arbitration. Considering the aforesaid facts and circumstances, when the petitioner participated in the suit and submitted to the jurisdiction of the learned trial Court thereafter, it was not open for the petitioner to submit the application to refer the dispute to arbitration. Under the circumstances, no illegality has been committed by the learned trial Court in dismissing the application Exh.34 and in not referring the dispute to arbitration.
[3.0] In view of the above and for the reasons stated above, there is no substance in the present Civil Revision Application which deserves to be dismissed and is, accordingly, dismissed.
CIVIL APPLICATION NO.3698 OF 2012 In view of dismissal of Civil Revision Application, no order in Civil Application.
(M.R.
Shah, J.) menon Top