RAM BABOO LAL Vs. HARISH CHANDRA BURMAN

JUDGEMENT

(1.) The defendant-ap pellant was lessee of a Cotton Spinning Mill. The lease was reduced into a re gistered document and its term was five years. There is no dispute that the term of the lease expired on 28-4- 1966. The defendant did not hand over possession of the mills in the same shape and form as was given to him on the expiry of the lease and continued to remain in pos session. The plaintiff, who was the les sor, is said to have served upon the de fendant, the lessee, a notice invoking the arbitration clause in the deed of lease and asking the defendant to appoint his arbi trator. It is said that the defendant re plied to the notice intimating his choice 6f an arbitrator. It transpired that noth ing was referred to the arbitrators. The plaintiff then commenced a suit for evic tion of the defendant from the mills pre mises, for the possession thereof in the same shape and form as it was let out and for recovery of mesne profits .amounting to over a lakh of rupees. When the summons of the suit was served upon the defendant he filed an applica tion under Sec. 34 of the Arbitration Act 1940 praying for the stay of pro ceedings of the suit. This application was opposed by the plaintiff. The learned Judge trying the suit rejected the ap plication of the defendant for stay of proceedings mainly on the ground 'that the subject-matter of the suit was not such as was agreed upon to be referred to arbitration under the arbitration clause of the lease deed. The defendant has now come up in appeal from this order of rejection of his application for stay of proceedings in the suit under Sec tion 34 of the Arbitration Act.

(2.) We have heard Sri Ashoke Gupta for the defendant-appellant. Learned counsel urged that the Court below is in error in holding that the sub ject-matter of dispute involved in the suit did not arise out of the contract of lease and that it was not otherwise a case in which the defendant was entitled to in voke the arbitration clause. The learned counsel further suggested that the con duct of the plaintiff showed that the arbitration clause should be invoked as he served upon the defendant notice for nominating an arbitrator and referring the dispute to arbitration under the arbitration clause in the contract of lease. It was also emphatically urged by the learned counsel that the Court below fell into a grave error in observing that the defendant not having filed his written statement it could not be known as to what dispute actually he was raising in the suit, therefore the Court was not in a position to judge the validity of the claim made by the defendant for stay of proceedings under Sec. 34 of the Arbitration Act. It was submitted that as Sec. 34 of the Arbitration Act it self provides that the defendant has to make an application under that sec. before filing a written statement, there fore, non-filing of the written statement could not be used as ground for reject ing of the defendant's application for stay of proceedings.

(3.) We have given our due consi deration to the submissions of learned counsel for defendant-appellant and we find that no case has been made out for interfering with the order of the Court below. The suit which was instituted by the plaintiff is an ordinary suit filed by a landlord against the tenant after the expiry of the lease and for recovery of mesne profits. The right of the plain tiff for delivery of possession of the de mised premises arises independently of the contract of lease. So any dispute with regard to that right cannot be said to arise out of the contract of lease un less the defendant pleaded that the lease had not expired and the suit was prema ture. Likewise the right to recover mesne profits will not arise out of tha contract of lease as it is an independent right which accrues to the plaintiff on account of illegal or wrong retention of possession of the mills. The suit is not for recovery of rent. We think that tha defendant was under a duty to place be fore the Court all the grounds on which he wanted the invocation of Sec. 34 of the Arbitration Act and to establish that the subject-matter of dispute aris ing in the suit was one which was agreed upon to be referred to arbitration. Wa think that it is in that context that tha observations of the learned Judge of tha Court below in regard to the non-filing of the written statement of the defendant are to be read. What the Court below meant was that the defendant has not placed any facts or information befora the Court as to the nature of the dis pute which his defence would disclos against the plaintiff's claim for eviction and recovery of mesne profits. The de fendant not having done so. he is to ba blamed for it. Even before us tha learned counsel for the defendant-appel lant was not able to disclose as to what the real nature of the dispute would ba on the pleadings of the defendant. Cer tainly the law requires that an applica tion under Sec. 34 of the Arbitration Act has to be filed before the defendant files his written statement, but that does not absolve the defendant from his duty to bring material before the Court to enable it to record an objective finding on the question whether the subject-matter of dispute before it was one which was agreed upon under the contract to be referred to arbitration. There being complete absence of any such material before the Court it was certainly justified in throwing out the defendant on that score. We have already observed above that the subject-matter of dispute which arises in the suit is wholly extraneous to the contract of lease which expired on 28/4/1966.