CHARANJIT KAUR Vs. S R CABLE

JUDGEMENT

(1.) THIS order shall also govern disposal of Civil Revision No. 136 of 2008. Both the revisions are filed under Section 115 of the Code of Civil Procedure, 1908 assailing the orders passed by the learned xi Civil Judge, Class-I, Indore rejecting the application of Section 8 of the Arbitration and Conciliation Act, 1996 read with Order vii, Rule 11 of CPC, filed by the applicant.

(2.) THE facts which are not in dispute that petitioner, a multi-media system operator, has entered into an agreement with non-petitioner on 1-6-2006, whereby the cable lines belongs to them had taken by non-petitioner for operation for the period of three years with effect from 1-4-2006 as per the terms and conditions specified in the agreement. Clause 14 of the said agreement provides for arbitration to a dispute, if any, arises between the parties, which may be decided in accordance with the provisions of the Arbitration and Conciliation Act, 1996 or by the Arbitrator Mahilpalji and Manish dixitji, and their decision shall be agreeable to the both parties.

(3.) ON arising some dispute of title, petitioner had filed a suit on 4-2-2008 for declaration and permanent injunction, wherein the relief for temporary injunction was refused by the trial Court and the appeal against the said, order was also dismissed. However, the plaintiff has moved an application under Order 23, Rule 1 of CPC for withdrawal of the suit on 31-3-2008, but on the same date non petitioner/defendant has filed the counter claim against plaintiff; the trial Court has passed the order and permitted to withdraw the suit filed by plaintiff-petitioner, however, the. counter-claim filed by defendant/non-petitioner remain pending. On the next date i. e. 9-4-2008 petitioner has moved an application under section 8 of the Arbitration and Conciliation Act, 1996 read with Sections 7 and 11 of the CPC, inter alia contended that as per clause 14 of the agreement, the counterclaim cannot be continued and the parties may be directed to refer under the Arbitration and Conciliation Act for settlement of their dispute. The reply to the said application was filed on 22-4-2008 stating that because the petitioner had withdrawn his suit remaining unsuccessful in getting injunction even on having the knowledge of the arbitration clause, however, on behalf of petitioner such an application is not entertainable. It is further stated that once the plaintiff has filed his statement of substance and filed the suit, on objecting by defendant, the injunction was refused, ex consequentia the said suit was withdrawn by them. Now while trying counter-claim of defendant, application under Section 8 of the Act, to refer the parties for arbitration, is not entertainable, because it is amounting to approbate and reprobate the relief, which is not permissible, and the plaintiff is now estopped to take such plea.