1 S.B. Civil Revision Petition No.1181/99 Ram Singh Vs. Ganga Lahri & Ors. Date of Order : 10/07/2006 Hon'ble Mr. Justice Ajay Rastogi Mr. B.L. Mandhana, for petitioner Mr. Jinesh Jain, for respondents Instant revision petition has been filed by the defendant against the order dated 29th April, 1999 whereby application filed u/s.34 of the Arbitration Act, 1940 was rejected by the learned First Appellate Court in Appeal No.48/98. The respondent-plaintiff filed a suit for rendition of partnership accounts and recovery for a sum of Rs.12540/- against the firm and partner. When summons were served on the defendant, copy of the plaint was not supplied to him along with summons and 28.8.1988 which was fixed in the summons was holiday and therefore, the case was taken up on 29th August, 1988. The learned trial court provided copy of the plaint to the defendant and adjourned the case for 22nd October, 1988. After going through the copy of plaint made available to him, application was filed u/s.34 of the Arbitration Act, 1940 which was opposed by the respondent-plaintiff and the learned trial Judge after hearing the parties allowed the application vide order dated 15th October, 1996. But, the learned First Appellate Court set aside the said order vide order dated 29th April, 1999. Hence, this revision petition. 2 Counsel for petitioner, Shri Mandhana, submits that the finding, which has been recorded by the learned First Appellate Court in Para 5 of the order impugned that on 29th August, 1988 the defendant- petitioner sought time for filing written statement and because of their participation in the proceedings, their application u/s.34 of the Act was not maintainable, is factually incorrect. In fact, on 29th August, 1988 counsel appeared, but copy of plaint along with summons was not made available to him. As such, a request was made by his counsel, the learned trial court made available copy of the plaint and without going through the contents in routine order was passed for next date for filing written statement, but no such time was sought for filing written statement by their counsel. In such circumstances, the very finding, which has been recorded by the learned First Appellate Court, is factually incorrect and it is a gross material irregularity which was committed in passing order impugned. Counsel for respondents, Shri Jinesh Jain, on the other hand, submits that once time has been granted for filing written statement, this clearly tantamounts to their participation in the proceedings and no error has been committed by the learned First Appellate Court in recording finding of their participation in the proceedings. As such, the order does not require any interference and there is no miscarriage of justice caused to the defendant-petitioner. I have considered the submissions of the counsels and with their assistance perused the material on record. 3 29th August, 1988 was the first date after summons were served and from perusal of order-sheet which was furnished before me, it shows that on 29th August, 1988 itself a request was made by the counsel for defendant to make available copy of plaint. As such, matter was postponed for next date and recording finding for filing written statement in no manner can be construed that defendant sought time for filing written statement and the fact is that before the next date after going through the contents of the plaint, application was filed u/s.34 of the Arbitration Act, 1940 by the defendant- petitioner. In my opinion, the finding, which has been recorded by the learned First Appellate Court after perusal of order-sheet of the trial court of 29th August, 1988, is factually incorrect and it is a gross material irregularity which has been committed in passing order impugned. Consequently, the revision petition stands allowed. The order passed by the Court of Additional District & Sessions Judge No.3, Alwar dated 29th April, 1999 in Appeal No.48/98 is hereby quashed and set aside. The learned trial court may now proceed further in the matter in accordance with law. [Ajay Rastogi],J. FRB