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Judgment
G. Rajasuria, J.—Heard the learned Counsel on either side.
The gist and kernel of the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision petition would run
thus:
The respondent herein filed the O.S. No. 231 of 2008 seeking the following reliefs:
- for a permanent injunction restraining the defendant, its officers, men agents and any person claiming or acting under its authority from alienating,
selling, transferring or in any manner encumbering the suit property with or to any third parties.
- for a mandatory injunction directing to alter the character of the suit property.
Whereupon, I.A. No. 1072 of 2008 was filed by the revision petitioner herein u/s 8 of the Arbitration and Conciliation Act, 1996 seeking the Sub
Court to refer the parties to arbitration. After hearing both sides, the Court dismissed the I.A with the finding that the agreement, which emerged
between the plaintiff and the defendant got fructified after compliance and in such a case, that agreement was no more in existence as on the date
of the filing of the suit. Being aggrieved by and dissatisfied with the said order, this civil revision petition has been focussed on various grounds.
The learned Counsel for the revision petitioner placing reliance on the grounds of revision would develop his argument to the effect that the
actual dispute between the plaintiff and the defendant is relating to the interpretation of the building agreement, which emerged between the plaintiff
and the defendant and the lower Court totally misdirected itself in construing as though after constructing the flats and handing over possession of
them, the purpose of the agreement got fulfilled and it had no more existence.
Whereas the learned Counsel for the plaintiff would submit that the actual dispute between the plaintiff and the defendant is not with regard to
any specific Clause in the agreement to sell but it is due to the defendant''s attempt to sell away certain portion of the building instead of raising
construction for community hall over the existing departmental store''s portion.
A bare perusal of the agreement to sell as well as the pleadings would ex facie and prima facie, undoubtedly and indubitably, highlight and
spotlight the fact that actually the plaintiff and the defendant got themselves locked up in a dispute, which is relating to actual construction of a
community hall. In the said agreement, which emerged between the plaintiff and the defendant, there is a Clause for construction of community hall
and in such a case, the lower court was not justified in observing that the suit filed by the plaintiff is having nothing to do with the said agreement
and that the agreement got already expired or fulfilled or fructified. Unless the said agreement is interpreted and enforced the question of deciding
the lis would become next to impossibility . In other words, de hors the agreement emerged between the plaintiff and the defendant the suit cannot
be decided. When such is the position, it is pellucidly and palpably clear that there is scope for arbitration as per the arbitration Clause contained in
the said agreement. It is for either of the parties to go for arbitration. Section 9 of the Arbitration Act, provides that pending arbitration or any
contemplation of arbitration any party could approach the Court having original jurisdiction and get injunction as an interim relief.
The learned Counsel for the revision petitioner would submit that the present suit has been filed before the District Munsif Court, which is having
no jurisdiction and the same has to be closed giving liberty to the respondent/plaintiff to approach the competent court concerned by filing an OP.
In my considered opinion, such an argument is based on hyper technicality. There are enough provisions under Order 7 Rule 10 of the CPC for
returning of the plaint. Accordingly, the Munsif Court should return the plaint with necessary endorsement; whereupon the same should be
presented after making suitable correction as O.P before the competent Court having original jurisdiction u/s 9 and it is for the court concerned to
consider such O.P on merits.
With the above observation, this civil revision petition is disposed of. No costs. Consequently, the connected miscellaneous petitions are closed.