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2005 DIGILAW 154 (PNJ)

Harpal Singh v. Nri Sh. Surinder Mohan

2005-01-28

HEMANT GUPTA

body2005
Judgment Hemant Gupta, J. 1. The petitioner is aggrieved against the order dated 16.10.2004 passed by the learned trial Court declining the application filed by the petitioner under Order 7 Rule 9 of the Code of Civil Procedure or in the alternative for referring the matter to the arbitrator in view of the agreement dated 24.06.2001. 2. The plaintiff-respondent has filed a suit for possession after termination of tenancy of the defendant and for recovery of arrears of rent on 8.4.2002. It was the case of the plaintiff that though the defendant was indicted as a tenant at the rate of Rs. 4,000/- per month but in the earlier suit for injunction filed by the defendant, he alleged rent at the rate of Rs. 1,000/- per month. On the basis of said stand, the plaintiff served a notice under Section 106 of the Transfer of Property Act and filed a suit for ejectment. The suit was decreed by the learned trial Court but, in appeal, his brother Naresh Kumar entered into compromise with the defendant and by virtue of a compromise deed dated 24.06.2001, fresh tenancy was created at the rate of Rs. 2,000/- per month and the appeal was dismissed as withdrawn on 2.1.2002. The plaintiff further pleaded that he needs the house urgently and, therefore, without entering into the controversy regarding validity of the agreement, he has terminated the tenancy of the defendant vide notice dated 24.06.2002 and, thus, claimed arrears of rent/damages at the rate of Rs. 2,000/- per month from 1.8.2001 to 30.4.2002 and future damages at the rate of Rs. 12,000/- per month from 1.5.2002 till the delivery of possession. 3. In the said suit, the defendant filed an application under Order 7 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter to be referred as "the Code") for rejection of plaint or in the alternative for referring the matter to the arbitrator in view of the agreement dated 24.06.2001. In the said application, the defendant has relied upon compromise deed dated 24.6.2001, Exhibit C-1, and receipt in respect of payment of rent of Rs. 1,75,000/- and another sum of Rs. 2,000/- as rent from 1.7.2001 to 31.7.2001, Exhibit C-2. In the said application, the defendant has relied upon compromise deed dated 24.6.2001, Exhibit C-1, and receipt in respect of payment of rent of Rs. 1,75,000/- and another sum of Rs. 2,000/- as rent from 1.7.2001 to 31.7.2001, Exhibit C-2. The defendant also filed photocopy of another agreement dated 24.06.2001 containing a clause that in case of any future dispute or difference whatsoever arising between the parties regarding the tenanted premises, the matter shall be referred to the arbitrator as per Arbitration and Conciliation Act, 1996. 4. It may be stated that the compromise Exhibit C-1 produced in the Court is on a stamp paper witnessed by Amarjit Singh and Sukhminder Singh. However, the agreement is on a plain paper witnessed by one Kamaldeep Singh and (illegible) s7o Baktawar Singh. 5. The plaintiff submitted reply to the said application and pleaded that there is no reference to any arbitration clause in the compromise and the receipt produced before the learned first Appellate Court. Had there been any other agreement on 24.6.2001 itself, the same would have also been on the stamp paper and would have been placed on the court file. Still further, it has been mentioned that the appeal was decided on the basis of the application dated 27.10.2001 but even in the said application or reply thereof, there was no reference of the agreement containing the arbitration clause and, thus, the agreement containing so called arbitration clause is nothing but a forged and fabricated document. 6. The learned trial Court declined the application on the ground that the defendant had submitted to the jurisdiction of the Court and waived off his right to seek decision through arbitration. 7. I have heard learned counsel for the parties. The dispute revolved around whether the agreement dated 24.6.2001 containing the arbitration clause was ever executed on the basis of which the matter is required to be decided by the arbitrator and not by the civil Court. 8. A perusal of the documents filed alongwith the application by the petitioner shows that the appeal filed by the present petitioner against the order of ejectment was decided on 2.1.2002 on the basis of compromise dated 24.6.2001 Exhibit C-1. The said compromise is on a stamp paper wherein new tenancy was created in favour of petitioner at the rate of Rs.2000/- per month w.e.f. 1.7.2001. The said compromise is on a stamp paper wherein new tenancy was created in favour of petitioner at the rate of Rs.2000/- per month w.e.f. 1.7.2001. It is further mentioned that the Courts are closed due to summer vacations and the appeal is fixed before the learned District Judge, Ropar, on 18.7.2001. There is no reference to any other agreement in the compromise filed before the learned first Appellate Court. The compromise dated 24.6.2001, Exhibit C-1, reads as under:- COMPROMISE This compromise has been made on 24.6.2001, between Shri Harpal Singh son of Shri Amar Singh, r/o H. No. 1635, Phase-7, Mohali (hereinafter called as a first party): AND Shri Naresh Kumar s/o Shri Babu Ram, Attorney of Shri Surinder Kumar s/o Shri Babu Ram, r/o H. No. 260, Mohalla Purani Kacheri, Jalandhar City (hereinafter called as a second party) with the intervention of close friends & relatives of both the parties as per following terms and conditions. 1. That 1st party is a tenant of 2nd party in the tenanted premises i.e. H.No. 1635, Phase-7, Mohali and paying a rent of Rs. 1000/- p.m. The case of both the parties is now pending in the court of A.D.J. Ropar. 2. That the 2nd party has received the entire rent with interest for said tenanted premises upto 30.6.2001 from the 1st party and now nothing has been due against 1st party upto 30.6.2001. Now the 2nd party has entered into a new tenancy with first party and 1st party shall pay Rs. 2000/- p.m. as rent for the said tenanted premises. The 2nd party has also received Rs. 2000/- as rent w.e.f. 1.7.2001 to 31.7.2001 in advance from the 1st party. 3. That at present the courts are closed due to summer vacations and case of both the parties is now fixed for 18.7.2001 before Additional District Judge, Ropar and first party will withdraw the appeal on the basis of present compromise on 18.7.2001. Now there is no dispute between the parties. This compromise has been reduced in writing and read over to both the parties and same has been admitted to be true and correct and signed by both the parties in the presence of following witnesses. Witness No. 1 1st Party Sd/- Harpal Singh Sd/- 2nd Party Sd/- Naresh Kumar Amarjit Singh H.No. 1060, Phase 10, Mohali Witness No. 2 Sd/- Sukhminder Singh # 1111/19-B,Chd. Witness No. 1 1st Party Sd/- Harpal Singh Sd/- 2nd Party Sd/- Naresh Kumar Amarjit Singh H.No. 1060, Phase 10, Mohali Witness No. 2 Sd/- Sukhminder Singh # 1111/19-B,Chd. 9 Still further, the petitioner has paid rent at the rate of Rs. 2000/- only for one month which is evident from the receipt, Exhibit C-2, as well as statement made before the Court on 2.1.2002. 10. In terms of Section 8(2) of the Arbitration and Conciliation Act, 1996, the application for referring the parties to arbitration is required to be accompanied by original arbitration agreement or a duly certified copy thereof. Neither original arbitration agreement has been produced nor a certified copy thereof is on record but only a photocopy is on the record which is not even signed by the petitioner. In fact, the entire sequence of events leave no manner of doubt that the said agreement containing arbitration clause has been prepared by the petitioner with the sole motive to delay the proceedings in a suit for possession. Once the parties have entered into compromise before the Court by virtue of a written compromise, any other agreement is beyond any comprehension. The agreement produced before the Court is on a stamp paper whereas the agreement relied upon by the petitioner is on a plain paper. Since there is no reference made to another agreement in the compromise produced in the Court, such agreement containing arbitration clause is not a document which can be said to have been executed. Still further, the dispute between the parties is not of such a nature or of such complexity which is appropriately required to be decided by the arbitrator. Therefore, there was no reason for the parties to enter into an agreement to settle their dispute by arbitration. 11. Therefore, I do not find any merit in the application filed by the petitioner for referring the matter to the arbitrator. Consequently, the revision petition is dismissed.