Bharat Sanchar Nigam Limited and Others vs Smt. Nirmala Devi and Another

Rajiv Sharma, J.—Heard Mr. Asit Kumar Chaturvedi, learned Counsel for the Revisionists and Mr. T. N. Singh holding brief for Mr. Arun Kumar Shukla, learned Counsel for the contesting respondents.

On 15.3.1992, the Respondent No. 1/plaintiff and the Revisionist entered into an agreement for lease of the premises situated at Mailani, Police Station Mailani, District Lakhimpur Kheri for a period of one year, by means of registered agreement and time to time it was renewed. In the said agreement, it has also been provided that in case of dispute arises in respect of the terms and conditions, the same shall be referred to the Arbitrator. As the Revisionist did not vacate the house in question as provided in the agreement, notice dated 5.9.2005 u/s 106 of the Transfer of Property Act, 1882 and Section 80 of the Code of Civil Procedure, 1908 was served upon him. The said notice was not complied and the respondent No. 1 filed SCC Suit No. 1/2006 before the Additional District Judge, Lakhimpur Kheri praying for ejectment of Revisionist, arrears of rent etc.

After issuance of notice, written statement has been filed, wherein it has been specifically stated that as there was an agreement and as such, the matter has to be referred to the Arbitrator and the Civil Court has no jurisdiction. Accordingly, the Revisionist herein has also preferred an application for appointment of an Arbitrator, but the Trial Court came to the conclusion that the dispute which has been raised in the instant case does not arise within the terms and conditions of the agreement, which has been entered into between the parties and as such, there was no need for referring the matter to the Arbitrator. Being aggrieved by the aforesaid order, the instant revision has been filed.

After hearing learned Counsel for the parties and perusing the order, I am of the opinion that the order passed by the trial Court suffers from illegalities, insofar as one of the clause of the agreement dated 15.3.1997 is that if at any time there shall arise any dispute, doubt, difference or question with regard to the interpretation or meaning or any terms and conditions of this demise or in respect of the rights duties and liabilities of the parties hereto or in any way, touching or arising out of these presents or otherwise in relation to the premises, then every such dispute, difference doubt or question (except the decision whereof is herein expressly provided for (shall be referred to the sole arbitration of the Director General of P & T) in case his designation is changed or his office is abolished, the office who for the time being is entrusted, whether or not in addition to other functions, with functions of the Director General of P & T by whatsoever designation, such official may be called or if he be unable to unwilling to act, then of an officer appointed by him in this behalf, it will be no objection to nay such appointment that the person appointed is a Govt. Servant that he had to deal with the matter to which the indenture of lease related and that in the course of his duties such Govt. Servant has expressed views on all or nay of the matters in dispute or difference. The decision of the arbitrator shall be final and binding on the parties to this deal. The provision of the Indian Arbitration Act, 1940 or any statutory modifications or re-enactment whereof and the rules made there under the time being in force shall apply to such arbitration and this deal shall be deemed to be a submission to the arbitration within the meaning of the said act.

In paras 16 and 24 of the report of Hindustan Petroleum Corpn. Ltd. Vs. Pinkcity Midway Petroleums, the Apex Court held as under:

It is clear from the language of the Section, as interpreted by the Constitution Bench judgment in Konkan Railway (supra) that if there is any objection as to the applicability of the arbitration clause to the facts of the case, the same will have to be raised before the concerned Arbitral Tribunal. Therefore, in out opinion, in this case, the Courts below ought not to have proceeded to examine the applicability of the arbitration clause to the facts of the case in hand but ought to have left that issue to be determined by the Arbitral Tribunal as contemplated in Clause 40 of the Dealership Agreement and as required under Sections 8 and 16 of the Act.

This brings us to consider the last question involved in this appeal, namely, the maintainability of the revision petition before the High Court u/s 115 of the CPC. The High Court by the impugned order has come to the conclusion that its jurisdiction to entertain a revision petition would only be available if the order impugned is such that if it is allowed to stand, it would occasion failure of justice or cause an irreparable injury to a party against whom the said order is made. In support of this finding, the High Court has relied upon certain judgments of this Court. Having perused the said judgments, were are of the opinion that the findings given in those judgments do not apply to the facts of this case at all. W have come to the conclusion that the Civil Court had no jurisdiction to entertain s suit after an application u/s 8 of the Act is made for arbitration. Therefore, we are of the opinion that the trial Court failed to exercise its jurisdiction vested in it u/s 115 of the C.P.C. when it rejected the application of the appellant filed under Sections 8 and 5 of the Act. In such a situation, refusal to refer the dispute to arbitration would amount to failure of justice as also causing irreparable injury to the appellant. For the said reason, we are of the opinion that the High Court has erred in coming to the conclusion that the appellant was not entitled to the relief u/s 115 CPC.

Here, in this case, the Revisionist filed an application for appointment of Arbitrator. Though the Civil Court has no jurisdiction vested it, it has been rejected, which is apparently illegal.

Keeping the above legal aspect of the matter in view, I allow the Civil Revision and the impugned order 28.4.2009 passed by the Additional District Judge, Lakhimpur Kheri is hereby quashed.