1. This is a defendant's petition for revision of the order of the Court of the District Judge, Chandigarh, dated June 4, 1971 whereby the appeal of the petitioner against the decision of the trial Court dismissing the petitioner's application under Section 34 of the Indian Arbitration Act (10 of 1940) (hereinafter called the Act) was dismissed. The application for stay of the suit for the ejectment of the petitioner was filed on the allegation that there was an arbitration agreement in writing between the parties. No such agreement was produced. After appraising the evidence led by the parties on affidavits the trial Court held that no such agreement ever existed. The learned District Judge carefully reappraised the entire evidence and came to the same conclusion. The only ground on which this revision petition appears to have been admitted is whether the provision of Section 33 of the Act requiring evidence to be led on affidavits has to be followed in proceedings under Section 34. This point had already arisen (before the admission of the present petition) in Civil Revision 986 of 1971, Gian Chand v. Tirath Ram Gupta, Counsel for the petitioner mentioned Civil Revision 981 of 1971 before the Motion Bench due to some error. In fact Mr. S. C. Goyal himself was the counsel in the previous case.
That case has since been decided and is now reported in Gian Chand v. Tirath Ram Gupta, 1972 Cur LJ 58 (Punj). It has been held by A. D. Koshal, J. in that case (Gian Chand's case) that the difference in the circumstances which make the two sections (Section 33 on the one hand and Section 34 on the other) applicable, does not furnish any criteria for determining the procedure which the Court is to follow for arriving at a decision of the question relating to the existence etc. of the arbitration agreement. It has been further held that Rule 1 of Order 19 of the Code of Civil Procedure enables a Court to order at any time for sufficient reason that any particular fact or facts may be proved by affidavit and when recourse is had by a Court to that rule the procedure in Rule 4 of Order 18 stands dispensed with subject, however, to the right of a party who bona fide desires the production of a witness for cross-examination to have such witnesses examined in Court and not on affidavit. No such application was made by or on behalf of the present petitioner in the trial Court. I am not only bound by the judgment of the learned Single Judge in Gian Chand's case (supra), but am also in full agreement with the same. In a case where the existence of an arbitration agreement is alleged in an application under defendant 34 of the Act, and such an allegation is denied by the other side and the original alleged arbitration agreement in writing is not forthcoming, the case should normally be decided on affidavits subject of course to the right of any party who desires the production of any of the witnesses (who swore any affidavits) for purposes of cross-examination.
2. The petitioner who is present in person and has argued this case himself says that he does not want to travel into the merits of the truth or otherwise of the allegations made in the affidavit, not only because he feels that this cannot be done under Section 115 of the Code of Civil Procedure but also because other disputes are stated to be pending regarding the contents of the affidavits.
3. No other point having been argued before me, this petition fails and is dismissed with costs. The parties shall appear before the trial Court on February 14, 1972, Counsel's fee Rs.50/-.
4. Petition dismissed.