Skip to content


Union of India (Uoi) and anr. Vs. Rent Tribunal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Arbitration
CourtRajasthan High Court
Decided On
Judge
Reported inRLW2009(3)Raj1947
AppellantUnion of India (Uoi) and anr.
RespondentRent Tribunal and anr.
DispositionPetition dismissed
Cases ReferredMahesh Kumar v. Rajasthan State Road Transport Corporation
Excerpt:
.....vehemently argued that the order impugned is perfectly legal order and has been passed by the learned tribunal after taking into consideration all relevant facts of the case so also as per arbitration clause no eviction decree can be passed by the arbitrator, therefore, even if the matter is referred to the arbitrator, no decree can be passed by the arbitrator for eviction because as per the arbitration clause only those disputes related to the agreement can be resolved by the arbitrator. but, the facts of the present case clearly reveal that the subject-matter in this case is related to eviction from the premises and obviously this question cannot be referred to the arbitrator as per clause viii of the agreement. so far as requirement of sub-section (1) of section 8 is concerned,..........vehemently argued that the order impugned is perfectly legal order and has been passed by the learned tribunal after taking into consideration all relevant facts of the case so also as per arbitration clause no eviction decree can be passed by the arbitrator, therefore, even if the matter is referred to the arbitrator, no decree can be passed by the arbitrator for eviction because as per the arbitration clause only those disputes related to the agreement can be resolved by the arbitrator. therefore, the petitioners are not entitled to seek remedy for quashing the order impugned because this order is just and proper and passed by the learned tribunal after taking into consideration the totality of the facts.13. learned counsel for the respondent further argued that as per section.....
Judgment:

Gopal Krishan Vyas, J.

1. By this writ petition, the petitioners have prayed for quashing order dated 03.10.2007 passed by the learned Rent Tribunal, Jodhpur upon the application filed by the petitioner under Section 8 of the Arbitration & Conciliation Act, 1996 (in short, to be called 'the Act of 1996' hereinafter).

2. According to facts of the case, a suit was filed by respondent No. 2 against the petitioner for recovery of arrears of rent and eviction claiming himself to be the owner of the property and the said property was alleged to be purchased by it from Inderjeet Singh in the year 2005. After issuance of notice therein, a reply was filed by the respondent-petitioners denying the averments made in the suit and it was replied that an agreement for taking the premises in question on rent was executed in between Inderjeet Singh and Union of India and no notice was given to the Union of India. In the reply, it was specifically stated that no agreement between the petitioners and respondent No. 2 was executed and the petitioner BRTF is an undertaking of the Ministry of Defence, Government of India. The petitioners have placed on record the photo-stat copy of the said agreement which was taken on record on 19.04.2007.

3. As per petitioners, an application was filed under Order 11 Rule 14, C.P.C. before the Rent Tribunal for production of the agreement which is said to be executed in between Inderjeet Singh and the Union of India because the said agreement was not traceable in the BRTF Department and assertion was made by the petitioners in the reply to suit in para 3 that agreement was executed in the year 1976 in between Inderjeet Singh and Union of India, therefore, plaintiff may be directed to produce the said agreement before the Court.

4. The application filed by the petitioners under Order 11 Rule 14, C.P.C. was rejected by the learned Rent Tribunal, Jodhpur. Thereafter, the said order of rejection of the application was challenged by the petitioner by way of filing S.B. Civil Writ Petition No. 377/2007. the said writ petition was disposed of on 21.08.2007 on the ground that the execution of the agreement has been admitted by the respondent; meaning thereby, on 21.08.2007 before this Court, respondent No. 2 admitted that there was an agreement in between the Union of India and Inderjeet Singh.

5. Contention of the petitioners in the writ petition is that immediately after admission of existence of the agreement by respondent No. 2 before this Court on 21.08.2007, an application under Section 8 of the Act of 1996 was filed by the petitioners in which it was prayed that as per the agreement in between Inderjeet Singh and Union of India, there is Clause VIII for arbitration. The petitioners have reproduced Clause VIII in the present writ petition which reads as follows:

In the event Of arty dispute and differences question or thing arising between the LESSOR and the LESSEE as regards the interpretation of any term of conditions hereby contained or as regards the rights obligations and duties of the parties. Under the agreement or any matter concerning or touching this agreement or arising out of it (except the decision whereof in term in expressly provided for), the same shall be referred for decision to an arbitrator not below the rank Of Lt. Cos. Civilion Officer of equivalent status to be appointed by the Chief Engineer (p) Deepak and the decision of such arbitrator shall be conclusive and binding on the parties hereto. The provisions of the Arbitration Act, 1940 and or the Rules thereunder or any statutory modification there as shall apply to such arbitration.

6. In the application filed under Section 8 of the Act of 1996, it was further alleged that there is dispute between the petitioners and respondent No. 2 regarding conditions and interpretation of the agreement upon which application for eviction has been filed, therefore, as per Clause VIII of the agreement any dispute between the parties can be decided by arbitration only, therefore, the application under the Rajasthan Rent Control Act, 2001 is not maintainable. Upon the application filed by the petitioners under Section 8 of the Act of 1996, respondent No. 2 filed reply and denied the averments made in the application. Thereafter, arguments were heard and the learned Rent Tribunal vide order dated 03.10.2007 rejected the application filed by the petitioners under Section 8 of the Act of 1996.

7. In this case, it is specifically stated by the petitioners that at the time of filing reply copy of agreement was not lying with the petitioners; but, a photostat copy was placed on record when it was traced out in the office and that photo-copy was taken on record by the Tribunal on 19.04.2007. Learned Counsel for the petitioners vehemently argued that before this Court the respondent admitted the execution of the agreement; meaning thereby, the respondent admitted the terms and conditions of the said agreement also, therefore, as per aforequoted Clause VIII of the agreement, there is no jurisdiction left to the Rent Tribunal to adjudicate upon the matter because the matter can be decided by arbitration only as per the agreement executed between Inderjeet Singh and Union of India; but, the learned Rent Tribunal illegally and erroneously rejected the application filed by the petitioners and committed an error while holding that the petitioner have not taken this objection in the first statement in the reply and, thereafter, in the affidavit; but, this fact is totally wrong in view of the fact that in the reply to the suit, it was specifically stated in the reply that agreement was executed in the year 1976 in between Inderjeet Singh and Union of India. The petitioner while inviting attention of the Court towards para 9(1), at page 3, of the reply and apprised this Court that there is averment in the reply that agreement was executed in the year 1976 but, at the time of filing reply, copy of the agreement was not available, therefore, earlier art application was filed for seeking direction to the respondent to produce on record the original copy of the said agreement. However, the application filed for summoning the document was rejected and, then, in the writ petition filed before this Court against the said order, before this Court on 21.08.2007, respondent No. 2 admitted that the agreement was arrived at in between Inderjeet Singh and Union of India. When this fact is admitted by the respondent, then, obviously respondent-plaintiff is under obligation to accept the terms and conditions of the agreement and as per Clause VIII of the agreement the matter can be adjudicated upon by arbitration only and application filed before the Rent Tribunal under the Act of 2001 is not maintainable; but, the learned Rent Tribunal, Jodhpur has illegally ignored the said aspect of the matter and rejected the application filed under Section 8 of the Act of 1996 which is illegal.

8. Learned Counsel for the petitioners vehemently argued that reasons for rejection of the application filed under Section 8 of the Act of 1996 are totally illegal and have no foundation of law. Moreover, it is in contravention of the adjudication made by the Hon'ble Supreme Court on the said ground, therefore, this writ petition deserves to be allowed and the impugned order deserves to be quashed.

9. Learned Counsel for the petitioners further argued that respondent No. 2 deliberately did not produce the said document on record and denied the execution of the agreement before the Rent Tribunal; but, subsequently, admitted the same before this Court when writ petition was filed by the petitioner; meaning thereby, non-production of the agreement which was in existence by respondent No. 2 clearly speaks that respondent No. 2 hid the document which was in existence and, subsequently, admitted before this Court when order passed by the Tribunal was challenged in the earlier writ petition. Therefore, the conduct of respondent No. 2 clearly speaks that it was well within its knowledge that there is an arbitration clause in the agreement, therefore, upon the ground taken by respondent No. 2 for eviction, the matter cannot be decided by the Rent Tribunal in view of the fact that the matter is required to be decided in the arbitration proceedings in terms of the agreement.

10. According to the petitioners, all the above facts narrated clearly speak that due to non-availability of the agreement at the time of filing the first reply only assertion was made that agreement was arrived at in the year 1976; but, later on, when photocopy of the agreement was traced out, then, the same was placed on record on 19.04.2007, so also, an application was filed for production of the agreement from the possession of the respondent. In this view of the matter, it is vehemently contended by learned Counsel for the petitioners that the order impugned is in contravention of the basic principles of law and, so also, against the spirit of the provisions of the Arbitration Act. It is, therefore, prayed that while quashing the order impugned application filed by the petitioners under Section 8 of the Act of 1996 may be allowed and the Tribunal may be directed to refer the matter to the Arbitrator as per Clause VIII of the agreement dated 30.11.1976. Learned Counsel for the petitioners invited attention of the Court towards judgment of the Supreme Court in the case of Hindustan Petroleum Corporation Ltd. v. Pink City Petroleum, reported in : AIR 2003 S.C. 2881 and another judgment reported in : AIR 2006 SC 2800 in the case of Rashtrlya Ispat Nigam Ltd. v. Verma Transport Co. Learned Counsel for the petitioner also cited judgment reported in : AIR 2002 SC 404 and while citing the aforesaid judgments of the Hon'ble apex Court contended that in the first reply there is averment with regard to existence of agreement in the year 1976, therefore, application filed under Section 8 of the Act of 1996 cannot be rejected on the ground that the petitioner has not taken any plea when first statement was submitted before the Tribunal, therefore, petitioner-respondent has waived his rights.

11. It is argued that earlier the respondent denied the agreement; but, later on, before this Court on 21.08.2007, admitted the agreement and, thereafter, immediately the application was filed by the petitioners with regard to maintainability of the suit proceedings. Therefore, now the matter is required to be decided by the Arbitrator as per Clause VIII but all. these aspects were not properly considered by the trial Court and, straight away, application under Section 8 of the Act of 1996 was dismissed which is totally erroneous. Hence, this writ petition may be allowed and the impugned order may be quashed.

12. Per contra, learned Counsel for the respondent vehemently argued that the order impugned is perfectly legal order and has been passed by the learned Tribunal after taking into consideration all relevant facts of the case so also as per arbitration clause no eviction decree can be passed by the Arbitrator, therefore, even if the matter is referred to the Arbitrator, no decree can be passed by the Arbitrator for eviction because as per the arbitration clause only those disputes related to the agreement can be resolved by the Arbitrator. Therefore, the petitioners are not entitled to seek remedy for quashing the order impugned because this order is just and proper and passed by the learned Tribunal after taking into consideration the totality of the facts.

13. Learned Counsel for the respondent further argued that as per Section 8(1) of the Act of 1996 a Judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. Therefore, in view of Section 8(1) of the Act of 1996, the application filed by the petitioners after filing reply was not maintainable. So also, the learned Tribunal has rightly rejected the application filed by the petitioners under Section 8 of the Act of 1996 while observing in the order that no objection was taken in the reply filed by the respondent with regard to referring the matter to the arbitration, therefore, as per the language of Section 8(1) the learned Tribunal has rightly rejected the application filed by the petitioner for referring the matter to arbitration. The learned trial Court has further observed that not only the reply filed by the petitioners to the suit, but, in the affidavit also which is filed in evidence, no objection was taken by the petitioners before the Tribunal for referring the matter to the arbitrator as per Clause VIII of the agreement, therefore, the learned Tribunal has jurisdiction to hear the matter with regard to the dispute of eviction, It is further observed by the trial Court that in this proceedings the question of expiry of lease and eviction is under adjudication which cannot be a matter of arbitration as per Clause VIII, therefore, in view of the language of Section 8 (1) of the Act of 1996, the learned trial Court has rightly rejected the application filed by the petitioners under Section 8 of the Act of 1996.

14. Learned Counsel for the respondent relied upon the judgment of the co-ordinate Bench of this Court, reported in AIR 2006 Rajasthan 56, in which the learned co-ordinate Bench has held that mere existence of the arbitration clause in an agreement does not bar the jurisdiction of the civil Court automatically. So also, it is held by the learned co-ordinate Bench that to take benefit of arbitration clause, party to contract has to apply for that relief under Section 8(1) within specific period. Learned Counsel for the respondent further invited my attention to the judgment of the Supreme Court delivered in Hindustan Petroleum Corporation's case, reported in AIR 2003 SC 2881, which is cited by the petitioners' counsel also, and contended that it is nowhere adjudicated by the Hon'ble Supreme Court that civil Court shall not have jurisdiction to entertain suit because as per contract for referring the dispute to the Arbitrator, therefore, admittedly when no application was filed by the petitioners at the first instance, then, the learned trial Court has rightly rejected the application filed by the petitioners under Section 8 for referring the matter -to the Arbitrator. Therefore, according to learned Counsel for the respondent, no interference is required in this case.

15. I have considered the rival submissions made by both the parties.

16. It is nowhere disputed by the petitioners themselves that any objection was taken by the petitioner with regard to referring the matter to arbitration at the first instance. More so, the petitioners' case is that the copy of the agreement was no in their possession through it is stated that an agreement was executed in the year 1976, therefore, no objection for referring the matter to the Arbitrator was filed at the first instance. No plea was taken in the reply filed by the petitioners to the suit application for eviction. Admittedly, in the affidavit filed as evidence before the Tribunal no such objection was taken by the petitioners before the trial Court. When both the above facts are admitted with regard to not taking any objection for referring the matter to the arbitration, in my opinion, the application filed subsequently under Section 8(1) of the Act of 1996 was not proper because as per the language of Section 8(1), the said objection was to be taken at the first instance. The language of Section 8(1) is as follows:

a Judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the )substance of the dispute, refer the parties to arbitration.

17. Section 8 of the Act of 1996 is with regard to dispute of violation of the terms and conditions only; but, in this case, application was filed by the respondent for eviction from the premises under the Rajasthan Rent Control Act, 2001, therefore, in view of the arbitration clause even if the petitioners contention is accepted that the matter is required to be referred to arbitration, then too, in my opinion, there is no jurisdiction left with the Arbitrator to pass eviction decree because as per agreement only those matters can be referred to the Arbitrator, which are related to the terms and conditions and none else accordingly, the application filed by the petitioners has no substance and has rightly been rejected by the trial Court.

18. I have considered the judgments cited by learned Counsel for the petitioners. In my opinion, in none of the judgments cited by the learned Counsel for the petitioners matter of eviction was in question. No doubt, if in the arbitration clause, the matter of eviction is required to be referred to the Arbitrator, then, obviously the civil Court is under obligation to refer the matter for arbitration as and when application under Section 8 is filed. But, the facts of the present case clearly reveal that the subject-matter in this case is related to eviction from the premises and obviously this question cannot be referred to the Arbitrator as per Clause VIII of the agreement. It is also required to be observed that the main objective under the Arbitration Act is to make provision for arbitral procedure which is fair and capable of meeting the needs of specific arbitration and minimizing the supervisory role of the Court and to permit the arbitral Tribunal to use mediation; but, at the same time, the prayer for reference can be made if the subject-matter in question before the Court is enumerated in the clause for arbitration in the agreement. Obviously, in this case, the subject-matter is eviction from the premises which is not subject-matter of arbitration clause, therefore, the judgments cited by learned Counsel for the petitioners are not applicable in this case.

19. In my opinion, the judgment rendered by the co-ordinate Bench of this Court in the case of Mahesh Kumar v. Rajasthan State Road Transport Corporation, Jodhpur, reported in : AIR 2006 Raj. 56 : RLW 2005(4) Raj. 2667, is applicable in the present case. Para 5, 6 and 7 of the said judgment run as under:

So far as requirement of Sub-section (1) of Section 8 is concerned, it clearly provides that to take benefit of arbitration clause, party to contract is required to apply for that relief and mere existence of arbitration agreement cannot oust the jurisdiction of the Civil Court. And for the reference of dispute to arbitrator, party may apply within specific period and outer limit has been given in Sub-section (1) of Section 8 of the Act of 1996 itself, i.e. before objector submits his defence. Thereafter, prayer to refer the matter to arbitrator can be made before filing written statement by the defendant. Sub-section (2) of Section 8 of the Act makes it clear that party suit is not only required to submit application under Sub-section (1) of Section 8, but prescribes procedure for filing application under Section 8(1) of the Act of 1996.

Further the Sub-section (3) of Section 8 of the Act of 1996 though deals with other aspects of the matter, but says that when application has been made under Sub-section (1) and the issue is pending before the judicial authority, the arbitration may be commenced or continued and award can be passed. In Sub-section 3) of Section 8 of the Act of 1996 there is reference of application. The Hon'ble Supreme Court also in the judgment of Hindustan Petroleum Corporation Ltd. (supra) also held that 'the jurisdiction of Civil Court is barred after an application under Section 8 of the Act is made for arbitration.' In view of the above, a separate application is required to be filed under Section 8(1) of the Act of 1996 and the plea cannot be taken in written statement. The judgment of Hon'ble Supreme Court delivered in Hindustan Petroleum Corporation Ltd., (AIR 2003 SC 2881) (supra) also nowhere says that the Civil Court shall not have jurisdiction to entertain the suit only because that there is contract for referring the dispute to arbitrator. It is not a case of total ouster of jurisdiction of the Court in the cases where the arbitration clause is there in the contract between the parties to the suit, but H depends upon compliance of the conditions by the persons seeking for referring the matter to the arbitration. In view of the above reason, the judgment of the Hon'ble Supreme Court sought to be interpreted to mean that once it is found that contract between the parties contains clause for arbitration, the jurisdiction of the Civil Court stands ousted automatically cannot be accepted nor the above judgment of the Hon'ble Supreme Court lays down so, as suggested by the learned Counsel for the petitioner.

20. While following above judgment, I am of the opinion that no case is made out by the petitioner for interference under Article 226 and 227 of the Constitution of India. Further, when the respondent is accepting the agreement, then, obviously at the time of adjudication, the said agreement can be taken into consideration for the purpose of adjudicating the matter in dispute with regard to eviction from the premises and petitioner can take plea in the matter on the basis of terms and conditions of agreement before Tribunal. In this view of the matter, the Rent Tribunal, Jodhpur has jurisdiction to adjudicate the matter in dispute with regard to eviction. Therefore, there are no grounds to accept the prayer of the petitioners for referring the matter to the arbitration because the Arbitrator has jurisdiction to decide the disputes arising out from the contract only and none else and in this case, dispute is with regard to eviction before the Tribunal.

21. In view of the aforesaid discussion, there is no force in this writ petition. The writ petition is hereby dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //