JUDGMENT Hon’ble B. S. Verma, J. 1. Heard Mr. Sharad Sharma, Senior Advocate assisted by Mr. Siddharth Shah, Advocate for the petitioners and Mr. Narendra Bali, Advocate for the respondent. 2. By means of this petition the petitioners have sought a writ, in the nature of certiorari to quash the order dated 14-10-2010 passed by Judge Small Cause Court/ District Judge, Pauri Garhwal in SCC Suit No. 5/2008, Baba Nihal Singh Vs. M/S Hindustan Petroleum Corporation Ltd. and another (contained in Annexure No.6). 3. Briefly stated the facts of the case are that suit for eviction and recovery of rent was instituted by the plaintiff-respondent against the defendant-petitioner. The fact that the tenancy was created vide registered lease-deed dated 23-12-2002 is admitted to both the parties. 4. According to the petitioner the lease-deed dated 23-12-2002 whereby the tenancy was created contain an arbitration clause-G, which contemplated that, any dispute or difference of any nature whatsoever arising between the parties thereto shall be referred to the sole arbitrator. 5. The suit was resisted by the defendant-petitioner by filing his written statement and refuting the plaint averments. Copy of written statement has also been annexed along with the writ petition as Annexure-4. After filing the written statement the defendant-petitioner moved amendment application and wanted to incorporate this fact in the written statement that in view of arbitration clause this court has no jurisdiction to hear and decide the case and the same is liable to be dismissed. 6. After hearing the parties the amendment application was dismissed by the Judge Small Cause Court by following the ratio of the judgment of Hon’ble Apex Court in the case of P. Anand Gajapathi Raju and others Vs. P.V.G. Raju (died) and others, reported in AIR 2000 Supreme Court 1886. 7. The conditions which are required to be satisfied under sub- sections (1) and (2) of Section 8 before the court can exercise its powers are: (1) there is an arbitration agreement; (2) a party to the agreement brings an action in the court against the other party; (3) subject matter of the action is the same as the subject matter of the arbitration agreement; (4) the other party moves the court for referring the parties to arbitration before it submits his first statement on the substance of the dispute. 8. 8. Learned Judge SCC has held that after first date of submission of his written statement the defendant-petitioner cannot be permitted to take plea by amendment in the written statement that the matter be referred to the arbitration as there is arbitration clause, and accordingly rejected the amendment application. 9. Learned counsel appearing for the petitioners firstly relying upon the judgment of P. Anand Gajapathi Raju and others vs. P.V.G. Raju (dead ) and others, reported in (2000) 4 Supreme Court Cases 539, has vehemently urged that at an appellate stage the Court can refer parties to arbitration under Section 8, even where arbitration agreement is entered into during pendency of the appeal. 10. I have gone through the above-cited judgment and I find that the judgment is of no help to the petitioners, rather it helps the respondent. In that case the parties entered into agreement during the pendency of appeal and the parties had no objection in referring the matter to arbitration. However, in the case in hand although written objection has not been filed, but the respondent-plaintiff opposed the application during the course of argument before the learned J.S.C.C. that the amendment sought cannot be allowed in view of judgment of Apex Court (supra) after first date of submitting the written statement by the petitioner-defendant. 11. Secondly, it has been contended that at the time of deciding the amendment application court cannot go into the question of merit of such amendment, it can only consider whether such amendment would be necessary for decision of real controversy between the parties. In support of his contention learned counsel has cited before me the case of Andhra Bank vs. ABN Amro Bank N.V. and others, reported in (2007) 6 Supreme Court Cases 167. 12. Again the above cited case is of no help to the petitioner. In that case defence was sought to be incorporated U/S 230 of Contract Act on the maintainability of the suit. However, in the instant case provision of sub-section (4) of Section 8 of Arbitration and Conciliation Act creates a right in the person bringing the action to have the dispute adjudicated by the court, once the other party has submitted his first statement of defence. However, in the instant case provision of sub-section (4) of Section 8 of Arbitration and Conciliation Act creates a right in the person bringing the action to have the dispute adjudicated by the court, once the other party has submitted his first statement of defence. But if the party, who wants the matter to be referred to arbitration applies to the court after submission of his statement and the party who has brought the action does not object, there is no bar on the court referring the parties to arbitration. The defendant-petitioner had already filed his written statement and thereafter he wanted to amend the written statement taking the plea of arbitration and the plaintiff- respondent has opposed the same, hence he cannot be permitted to amend the written statement after first date of submission of written statement, in view of above provisions of Section 8 of Arbitration and Conciliation Act. 13. I find that the learned Judge Small Cause Court has rightly rejected the amendment application. The order impugned does not suffer from any perversity or error of law. 14. The writ petition being devoid of merit is dismissed.