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2009 DIGILAW 1513 (PNJ)

Meena Dawar v. Rajeev Arora

2009-08-26

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This revision-petition, under Article 227 of the Constitution of India, is directed, against the order dated 31.01.09, rendered by the Guardian Court, Amritsar, vide which, it directed the respondents/revision-petitioners to file reply to the petition under Section 25 of the Guardianship Act. 2. A petition under Section 25 of the Guardian and Wards Act, was filed by Rajeev Arora, petitioner (now respondent). During the pendency of that petition an application under Sections 5, 8 and 35 of the Arbitration and Conciliation Act, 1996, and Section 151 of the Code of Civil Procedure, for rejection of the petition was filed by Meena Dawar etc. respondent (now petitioners). It was stated that Rajeev Arora, was married to the deceased mother of minor children namely Kashish and Gyatri. Rajiv Arora, and applicants No.l to 3, submitted a writing, vide application to the President Joshi Colony (E) Welfare Society, Amritsar, requesting him to act as sole arbitrator, between the parties, with regard to the matter pertaining to the maintenance of two minors children of the petitioner; and regarding the resolution of dispute of their guardianship besides returning the Istridhan to the parents of Preety, deceased wife of petitioner Rajeev Arora. They further gave the consent that the decision of the Arbitrator, will be binding upon the patties, and after this no party will proceed before any Court of law, and will not file any complaint before the Police. The request was duly signed by the parties. A written award dated 23.08.07, was passed by the sole Arbitrator. The award was accepted by the parties and the same was signed in token of its correctness. Meena Dawar etc. filed execution proceedings, to execute the award dated 23.08.07, by claiming Istridhan and two FDRs of Rs.5 lacs in the name of the minor as per the specific terms and conditions of the same. It was further stated that the application was pending, in the Court of Sh. Karnail Singh, Additional District Judge, Amritsar. Rajiv Arora filed a civil revision No.3758 of 2008 before this Court, in order to challenge the maintainability of the execution proceedings. The said revision petition was dismissed by this Court, and the execution proceedings for the execution of award were held to be proper and maintainable. A writ petition was also filed by Rajiv Arora. Rajiv Arora filed a civil revision No.3758 of 2008 before this Court, in order to challenge the maintainability of the execution proceedings. The said revision petition was dismissed by this Court, and the execution proceedings for the execution of award were held to be proper and maintainable. A writ petition was also filed by Rajiv Arora. The question of the custody of the minors, after the death of their mother, was fully resolved by way of award. It was further stated that Rajiv Arora agreed not to file any proceedings, in respect of this matter. The award became final after the expiration of period of limitation. It was further stated that the award dated 23.08.07, had got a force of decree. It was further stated that, in the face of the award, referred to above, the petition under Section 25 of the Guardian and Wards Act, was a misuse of the process of law. Accordingly prayer for the rejection of the petition was filed. 3. In reply to the application, it was stated by Rajeev Arora, that the same was not maintainable, as per Sections 5, 8 and 35 of the Arbitration and Conciliation Act. It was further stated that Section 8 of the Act deals with making reference, in a pending suit, with regard to the existence of arbitration clause. It was further stated that the alleged document relied upon and submitted by Meena Dawar etc. was neither an agreement nor an award in the eyes of law, and was liable to be set aside. It was further stated that the other two documents were forged by them, after obtaining the signatures of the petitioner Rajeev Arora, and his father, on blank papers, when the dead body of his (Rajeev Aroras) wife was lying in the house and he was in deep shock. It was further stated that the respondent and the brother of respondent No. 1, who is an Advocate, procured the signatures of the petitioner and propounded two documents giving the same a colour and name pf compromise/arbitration award dated 23.08.07. It was further stated that the objections against the alleged award dated 23.08.07, were already pending, in the Court of Additional District Judge, Amritsar. in the execution proceedings. It was further stated that the objections against the alleged award dated 23.08.07, were already pending, in the Court of Additional District Judge, Amritsar. in the execution proceedings. It was further stated that the minor children were removed forcibly when the dead body of the wife of the petitioner was lying in the house, and under the threat of false action, as well as, under the threat of not allowing the petitioner to perform the last rites of his wife, his signatures were obtained on blank papers, which were later on converted into the fabricated documents. It was further stated that delaying tactics were being adopted by the respondents/applicants, in order to delay the custody of the minor children. It was further stated that the application was liable to be dismissed. 4. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, treated the application filed by the petitioner, under Order 7 Rule 11 of the Code of Civil Procedure. It was directed that, in the meanwhile, the respondents, shall file reply to the main petition. 5. Feeling aggrieved, against the impugned order, the instant revision-petition, has been filed by the revision-petitioners. 6. I have heard the Counsel for the parties, and have gone through the record of the case, carefully. 7. The Counsel for the revision-petitioners, at the time arguments took up the same stand, as was reflected in the application, in which, the order impugned was passed. In addition, it was stated by him that in the face of award, the Guardian Judge, was required to stay his hands by adjourning the proceedings sine-die, as the matter, in dispute, before the Guardian Judge, was also pending before the Additional District Judge, Amritsar, in the objection petition, filed by Rajeev Arora, against the award in the execution proceedings. He further submitted that the order being illegal was liable to be set aside. 8. On the other hand, the Counsel for the respondent, Rajeev Arora, submitted that Rajeev Arora, was having independent remedy of filing the application under Section 25 of the Guardian and Wards Act. He further submitted that the Guardian Judge, was not required to stay his hands till the decision of objections before the Court of Additional District Judge, Amritsar. 9. On the other hand, the Counsel for the respondent, Rajeev Arora, submitted that Rajeev Arora, was having independent remedy of filing the application under Section 25 of the Guardian and Wards Act. He further submitted that the Guardian Judge, was not required to stay his hands till the decision of objections before the Court of Additional District Judge, Amritsar. 9. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the revision-petition, deserves to be accepted, for the reasons to be recorded, hereinafter. It is evident from the record that the parties allegedly entered into an agreement, whereby, the matter, inter-alia, regarding the custody of the minors was referred to the Arbitrator. The award was given by the arbitrator on 23.08.07. The execution proceedings with regard to that award are already pending in the Court of Additional District Judge, Amritsar. Objections have admittedly been filed by Rajeev Arora, to the award, wherein, the agreement for referring the matter to the Arbitrator, has also been challenged as a forged and fabricated document. In the face of the award which has already been made, by the Arbitrator, allegedly with the consent of the parties, involving the same subject matter, as is involved in the petition under Section 25 of the Guardian and Wards Act, in my opinion, it was required of the Guardian Judge, to stay his hands, till the decision of the objection-petition by the Court of Additional District Judge, Amritsar. Only after the decision of the objection-petition, in the award, further proceedingscould be conducted in the application under Section 25 of the Guardian and Wards Act. The direction given by the Guardian Judge, Amritsar, for filing reply to the petition, under Section 25 of the Guardian and Wards Act, therefore, could not be said to be, in accordance with the provisions of law as the two parallel civil proceedings relating to the same subject matter could not be allowed to continue at the same time, in two different Courts, with a view to avoid conflicting decisions. The order dated 31.01.09, thus, suffers from illegality and perversity, warranting the interference of this Court, in its revisional jurisdiction, under Article 227 of the Constitution of India. The order impugned is liable to be set aside. 10. The order dated 31.01.09, thus, suffers from illegality and perversity, warranting the interference of this Court, in its revisional jurisdiction, under Article 227 of the Constitution of India. The order impugned is liable to be set aside. 10. For the reasons recorded above, the order dated 31.01.09, rendered by the Guardian Judge, Amritsar, directing the respondents/revision-petitioners, to file reply to the main petition, in view of the facts and circumstances explained above, is set aside. The proceedings, in the petition, under Section 25 of the Guardians and Wards Act, shall remain stayed, till the decision of the objection-petition against the award, already filed and pending before the Court of Additional District Judge, Amritsar. The Additional District Judge, Amritsar, is, however, directed to expedite the proceedings, and ensure that the objection-petition is finally decided within a period of 07 months, from the date of receipt of a copy of the order, as the matter involves the custody of minor children.