JUDGMENT 1. - Instant civil revision petition has been filed by the petitioner-plaintiff to challenge the order dated 18.10.2005 passed by the Addl. District Judge (Fast Track) No. 2, Udaipur in Civil Original Suit No. 55/2005 and prayed that the said order may be quashed and Trial Court may be directed to proceed in civil suit filed by the petitioner-plaintiff and decide the same on merit. 2. As per facts of the case, the petitioner plaintiff filed a civil suit for permanent and mandatory injunction against the defendant-respondents and it is specifically pleaded in the suit that his property is consisting of two plots measuring 200x80 Sq ft exists at New Fatehpura. Upon the said property, therefore, the petitioner-plaintiff and respondent-defendant No. 2 to 4, on the one hand, and defendant No. 1 on the other, entered into an agreement on 18.03.2002 to perform the construction work for residential complex as per sanctioned plan only approved by respondent municipal Council, Udaipur. As per allegation if the petitioner-plaintiff, defendant-respondents No. 2 to 4 without the consent of the petitioner executed a power of attorney in favour of defendant-respondent No. 1 which was contrary to the interest of the petitioner and since defendant-respondent No. 1 without obtaining the sanction of the Municipal Council, Udaipur and without getting the requisite conversion from residential to commercial, started erecting commercial premises without the consent of the petitioner which is illegal and contrary to the rights and interests of the petitioner. 3. In the civil suit, it is prayed by the petitioner-plaintiff respondent-defendant No. 1 may be retrained from raising construction of residential plot beyond the permission granted by the Municipal Council, Udaipur and specific injunction was sought in exercise of power conferred under the Rajasthan Municipalities Act that unauthorised construction raised by respondent-defendant No. 1 shall be demolished. It is also submitted that apprehension of the petitioner was that on the residential plot without getting the conversion of property from residential use to commercial by the Municipal Council, Udaipur the illegal construction has been raised for which the petitioner will be required to pay huge money both for conversion and penalty for raising the commercial complex in contravention of the sanctioned plan. 4. 4. As per pleading in the suit, the petitioner sought injunction against defendant-respondent No. 1 as well as defendant-respondent No. 5 because collusion was arrived at between respondent defendant No. 1 and respondents No. 2 to 4. 5. In the suit, however, respondent-defendant No. 1 filed an application under Section 8 of the Arbitration and Conciliation Act and submitted that a written contract was executed and, in the contract itself, there is provision for referring the dispute to Arbitrator, therefore, civil suit is not maintainable and matter should have been adjudicated by Arbitrator as agreed to by both the sides in the contract agreement. 6. Defendant-respondent No. 5 Municipal Council, Udaipur filed it written-statement in which it has been admitted that the construction has been raised which is not permissible in law. 7. The Trial Court vide its order dated 18.10.2005 gave finding that as per agreement clause parties should be go before the Arbitrator to resolve the dispute, therefore, the plaintiff’s suit is not accepted (Naanjoor) and parties are directed to refer the dispute to the Arbitrator. Being aggrieved and dissatisfied with the order dated 18.10.2005 the petitioner has preferred instant civil revision petition to challenge the said order. 8. A reply to the application was filed by the petitioner-plaintiff in which it is pleaded that suit has been filed for permanent and mandatory injunction to seek relief against respondent Municipal Council, respondent No. 5 also because defendant No. 1 raised construction contrary to the sanctioned plan, therefore, he may be restrained from raising commercial construction on the property in question, therefore, the arbitration clause cannot be invoked against the Municipal Council, Udaipur (respondent No. 5) but rejected the petitioner's plea. 9. 9. The main contention of learned Counsel for the petitioner is that order dated 18.10.2005 is contrary to law and facts on record because the jurisdiction of the civil Court is not barred, more so, when relief is sought against inter alia, respondent No. 5 Municipal Council, Udaipur in the civil suit to restrain defendant No. 1 not to raise commercial construction because in the contract agreement no liberty was given to the defendant builder to raise any construction contrary to sanction and if at all, any modification is required, then, permission for the same was required to be obtained by the co-owners and not by the builder respondent No. 1; but, admittedly, respondent No. 1 builder raised construction in contravention of the sanctioned plan and, now, took plea that commercial construction has been compounded by the Municipal Council, Udaipur upon his request. 10. Learned Counsel for the petitioner submits that first of all there was no power left with the builder defendant-respondent No. 1 to act beyond sanction made by the Municipal Council, Udaipur in favour of the plaintiff-petitioner and, secondly, if any construction is raised contrary to the original proposal, then, consent of petitioner was necessary but, contrary to agreement, defendant No. 1 raised commercial construction and now, taking the plea that Municipal Council, Udaipur has compounded the illegal commercial construction raised by him. The above facts clearly reveal that defendant acted contrary to the construction permission, therefore, only Municipal Council can demolish the same. Therefore, the learned Trial Court without taking into consideration the above important facts did not accept the suit and passed the order impugned that as per arbitration clause in the agreement matter should be referred to arbitration. 11. Learned Trial Court has not applied its mind to the fact that relief has been sought by the petitioner against respondent No. 5 also who is not party to the agreement, therefore, as per judgment of the Hon'ble Supreme Court rendered in Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya and another, 2003(1) WLC (SC) Civil 665 : AIR 2003 SC 2252 , learned Trial Court committed gross error while rejecting the suit and directing the parties to take recourse to the arbitration clause us contained in the agreement, therefore, the order impugned may be quashed. 12. 12. Learned Counsel for the petitioner submits that an application was filed before this Court under Section 11 of the Arbitration Act for appointment of Arbitrator and co-ordinate Bench of this Court vide order dated 11.11.2006 passed in S.B. Arbitration Application No. 18/2005 appointed Arbitrator, and, although the Arbitrator has passed the award but that decision is not binding upon respondent No. 5 Municipal Council, Udaipur notwithstanding that the order passed by the co-ordinate Bench for appointment of Arbitrator was upheld by the Hon'ble Supreme Court. 13. Learned Counsel for the petitioner vehemently argues that in this case the order impugned is totally illegal because it is contrary to the aforesaid judgment of Hon'ble Supreme Court and upon the important fact that, in the civil suit for mandatory injunction the petitioner-plaintiff has not only claimed relief against the respondents No. 1 to 4 but also sought against respondent No. 5 Municipal Council, Udaipur. According to, learned Counsel for the petitioner, the agreement was in between the petitioner and respondents No. 2 to 4 on the one side and respondent No. 1 on the other side and, in the suit, the petitioner complained that respondents No. 2 to 4 have illegally executed power of attorney without his consent with which adversely affecting the interest of the petitioner, therefore, the actual controversy in the suit is in between the petitioner and his brothers; and further, the question of fraud and collusion can only be decided by the civil Court but all these aspects have not been considered by the Trial Court while passing the impugned order. 14. Learned Counsel for the petitioner further invited attention of this Court towards the fact that in the various clauses of the agreement, respondent No. 1 was required to raise construction as per the sanctioned plan and he was not authorised to raise commercial construction and admittedly, as per reply in the suit of respondent No. 1 and 5 that they raised construction contrary to sanction issued by the Municipal Council Udaipur, therefore, learned Trial Court committee serious illegality while not entertaining the civil suit and relegating the petitioner-plaintiff to remedy under the arbitration clause upon the prayer of respondent No. 1 made in the application filed under Section 8 of the Arbitration Act. 15. 15. Lastly, it is argued by learned Counsel for the petitioner that as per settled law there is no jurisdiction left with the Court to ask the party to seek relief against defendant who was not party in the contract and to refer the dispute to arbitration, therefore, learned Trial Court committed gross illegality for the simple reason that petitioner-plaintiff has sought relief against inter alia the Municipal Council, Udaipur also in the suit which cannot be granted by the Arbitrator. In view of above, it is submitted that from all angles the impugned order passed by the Trial Court is wholly without jurisdiction. 16. Learned Counsel for the petitioner invited attention of this Court towards judgment of the Andhra Pradesh High Court reported in 2001 (2) CCC 445 , in which, almost on identical facts, similar type of order was set aside and Trial Court was directed to proceed in the suit, therefore, it is prayed that this revision petition may be allowed and order impugned dated 18.10.2005 passed by the Addl. District Judge (Fast Track) No. 2, Udaipur in Civil Original Suit No. 55/2005 may be quashed and set aside. 17. Per contra, learned Counsel appearing for respondent No. 1 vehemently argued that admittedly an agreement was arrived at in between petitioner and respondents No. 2 to 4 on the one side and, on the other side, respondent No. 1. As per terms and conditions of the agreement, it was admitted by both the parties that in the event of any dispute arising with regard to any violation of the terms and conditions of the agreement the matter will be referred to Arbitrator. Here, in this case, the petitioner-plaintiff made specific allegation against respondent No. 1 that illegal construction has been raised in contravention of the terms and conditions of the agreement, therefore, obviously the Trial Court proceeded to pass order for referring the matter to the Arbitrator and refused to entertain the suit in which there is no illegality. 18. Here, in this case, the petitioner-plaintiff made specific allegation against respondent No. 1 that illegal construction has been raised in contravention of the terms and conditions of the agreement, therefore, obviously the Trial Court proceeded to pass order for referring the matter to the Arbitrator and refused to entertain the suit in which there is no illegality. 18. As per Counsel tor the respondents, the main contention of the petitioner -plaintiff is that commercial construction has been made by answering respondent No. 1 who is builder but, fact remains that he has been authorised to raised construction as per terms and conditions of the agreement and, if there is arbitration clause in existence in the said agreement itself, then, it cannot be said that any error has been committed by the Trial Court to reject the suit. Therefore, all the arguments advanced by the learned Counsel for the petitioner are no tenable. 19. While inviting attention towards the additional affidavit filed in this revision petition, it is submitted by learned Counsel for the respondent(s) that, application was filed before this Court for appointment of Arbitrator in accordance with Section 11 of the Arbitration and Conciliation Act which was registered as S.B. Arbitration Application No. 18/2005, in which, after providing opportunity of hearing to the petitioner-plaintiff and, so also, while taking into consideration the fact that this revision petition is pending before this Court, the co-ordinate Bench passed an order in accordance with Section 11 of the Arbitration Act and referred the matter to the sole Arbitrator. Said order mad on 10.11.2006 was further challenged before the Hon'ble Supreme Court but, the Hon'ble Supreme Court dismissed the SLP and confirmed the order of appointment of Arbitrator, therefore, now, nothing remains in this revision petition because the Arbitrator has already decided the matter and passed an award on 15.05.20012; and, both, petitioner and respondent No. 1 challenged the said award before the District Judge. In view of above, nothing survives in this revision petition because the matter has been adjudicated by the Arbitrator after appointment by this Court. Therefore, it is prayed that this revision petition may be dismissed. 20. In view of above, nothing survives in this revision petition because the matter has been adjudicated by the Arbitrator after appointment by this Court. Therefore, it is prayed that this revision petition may be dismissed. 20. Learned Counsel for respondent No. 1 further invited attention of this Court that although the construction was made in contravention of the sanction issued by the Udaipur Municipal Council but, later on, upon application filed by respondent No. 1 builder, the Municipal Council, Udaipur compounded the construction and respondent No. 1 deposited penalty also vide receipt No. 3728 dated 23.06.2006, therefore, at this stage, the question with regard to raising commercial construction in contravention of the sanction docs not survive. Learned Counsel for the respondent invited by attention towards judgment reported in 2011 (5) Bombay C.R. 168; and, submits that judgment of Hon'ble Supreme Court in Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya and another, 2003(1) WLC (SC), Civil 665 : AIR 2003 SC 2252 , was considered in the above judgment by the Bombay High Court; but, ultimately it has been held that if arbitration clause is in existence, then, for dispute arising out from the agreement it can be decided by the Arbitrator only and civil suit is not maintainable. Therefore, in view of above facts and cited adjudication this revision petition may be dismissed. 21. In rejoinder, learned Counsel for the petitioner submits that against the order of compounding the construction raised in contravention of the sanction, revision petition was filed by the petitioner before the Director, Local Bodies, Jaipur but the Director, Local Bodies after sleeping over the matter for four years dismissed the revision petition arbitrarily vide, order dated 08.04.2010 while observing that civil suit has been filed in the Trial Court, therefore, the plea taker, by the respondent No. 1 with regard to illegal construction is compounded by the Udaipur Municipal Council is not tenable because the petitioner can challenge the order of the Municipal Council, Udaipur for compounding the illegal construction in the civil suit as per liberty. Therefore, this revision petition may be allowed and impugned order may be quashed. 22. After hearing learned Counsel for the parties, I have perused the en tire record of the case and the judgment cited by both the parties. 23. Therefore, this revision petition may be allowed and impugned order may be quashed. 22. After hearing learned Counsel for the parties, I have perused the en tire record of the case and the judgment cited by both the parties. 23. Undisputedly, the land in question is belonging to the petitioner-plaintiff and respondents No. 2 to 4 and defendant-respondent No. 1 being builder was authorised to raise construction as per sanction granted by the Municipal Council, Udaipur and, for that purpose, agreement was executed in between the parties. In the said agreement, it is true that there is arbitration clause for adjudicating dispute arising out from the agreement; but, at the same time, as per terms and conditions incorporated in clause 25 of the agreement, there was no jurisdiction left with the, builder respondent No. 1 to raise illegal construction. Clause 25 of the agreement reads as under: "25. That to facilitate the builder/developer for obtaining various clearances, consents, building plans, site plans etc. from U.M.C. or any other department and to carry on the construction in general the co-owners have already submitted plans for approval with Municipal Corporation, Udaipur, shall form the basis of construction which, may be modified within the prescribed bye-laws as needed, which shall be obtained by the co-owners and handed to the builder." 24. Upon perusal of clause 25, it is abundantly clear that builder/developer respondent No. 1 was never authorised to raise any illegal construction and he was authorised to raise construction as per the sanction and, if any modification was required, then, it was to be done by the co-owners and not by the builder/developer. But, here in this case respondent No. 1 is accepting that he raised commercial construction contrary to the sanction obtained by petitioner-plaintiff and respondents No. 2 to 4 and, after raising illegal construction, an application was filed to compound the commercial construction upon which Municipal Council, Udaipur compounded the illegal construction; meaning thereby, it appears from the facts that the builder/developer contractor has unauthorisedly acted like owner of the property in question without permission of the petitioner which is not permissible in law because the agreement was executed only for the purpose of raising construction and no title was transferred to the builder/developer to raise construction as per his choice. 25. 25. In the civil suit, the Municipal Council, Udaipur, prior to compounding the illegal commercial construction, accepted that construction has been raised by defendant-respondent No. 1 in violation of construction permission, meaning thereby, respondent No. 1 has completely acted contrary to the terms and conditions of the agreement and, in the civil suit, petitioner made a prayer for removing the illegal commercial construction upon the land in question. It is also worthwhile to observe that the Municipal Council, Udaipur was not party in the agreement arrived at in between the petitioner and respondents No. 2 to 4 and defendant-respondent No. 1. Therefore, if any prayer is made against the respondent No. 5 Municipal Council, Udaipur, then, obviously it was to be decided by the Civil Court in the civil suit after framing issues. 26. In the case of Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya and another, 2003(1) WLC (SC) Civil 665 : AIR 2003 SC 2252 (supra). Hon 'hie Supreme Court held in para 16 and 17 that it would be difficult to give an interpretation to Section 8 under which bifurcation of the cause of action that is to say the subject matter of the suit or in some cases bifurcation of the suit between parties who are parties to the arbitration agreement and others is possible. This would be laying down a totally new procedure not contemplated under the Act. If bifurcation of the subject matter of a suit was contemplated, the legislature would have used appropriate language to permit such a a course. Since there is no such indication in the language, it follows that bifurcation of the subject matter of an action brought before a judicial authority is not allowed. Secondly, such bifurcation of suit in two parts, one to be decided by the arbitral tribunal and other to be decided by the civil Court would inevitably delay the proceedings. The whole purpose of speedy disposal of dispute and decreasing the cost of litigation would be frustrated by such procedure. Secondly, such bifurcation of suit in two parts, one to be decided by the arbitral tribunal and other to be decided by the civil Court would inevitably delay the proceedings. The whole purpose of speedy disposal of dispute and decreasing the cost of litigation would be frustrated by such procedure. It would also increase the cost of litigation and harassment to the parries and on occasions there is possibility of conflicting judgments and orders by two different forums; meaning thereby, when respondent No. 5 was not party to the agreement and petitioner-plaintiff made a prayer before the civil Court that respondent No. 5 may be directed to remove the illegal construction, then, obviously the matter was to be adjudicated by the civil Court and not by the Arbitrator. 27. In para 15 and 16 of the judgment in Sukanya Holdings' case (supra), following adjudication is made by the Hon'ble Supreme Court: "The relevant language used in Section 8 is "in a matter which is the subject matter of an arbitration agreement", Court is required to refer the parties to arbitration. Therefore, the suit should be in respect of a 'a matter’ which the parties have agreed to refer and which comes within the ambit of arbitration agreement. Where, however, a suit is commenced-"as to a matter" which lies outside the arbitration agreement and is also between some of the parties who are not parties to the arbitration agreement, there is no question of application of Section 8. The words 'a matter’ indicates entire subject matter of the suit should be subject to arbitration agreement. The next question which requires consideration is even if there is no provision for partly referring the dispute to arbitration, whether such a course is possible under Section 8 of the Act? In our view, it would be difficult to give an interpretation to Section 8 under which bifurcation of the cause of action that is to say the subject matte of the suit or in some cases bifurcation of the suit between parties who are parties to the arbitration agreement and others is possible. This would be laying down a totally new procedure not contemplated under the Act. If bifurcation of the subject matter of a suit was contemplated, the legislature would have used appropriate language to permit such a course. This would be laying down a totally new procedure not contemplated under the Act. If bifurcation of the subject matter of a suit was contemplated, the legislature would have used appropriate language to permit such a course. Since there is no such indication in the language it follows that bifurcation of the subject matter of an action brought before a judicial authority is not allowed." 28. After perusing of the above adjudication, this Court is of the opinion that when prayer of mandatory injunction was made by the petitioner-plaintiff in the suit against the Municipal Council, Udaipur who was not party in the contract agreement, then, obviously the said fact was to be considered objectively by the civil Court while deciding application under Section 8 of the of the Arbitration and Conciliation Act; but, the civil Court committed an error of law while allowing the application filed by the defendant No. 1 under Section 8 of the Arbitration Act. The fact as well as contention of defendant that illegal construction has been compounded by the municipal Council, Udaipur is not acceptable be cause respondent No. 1 builder was authorised to act as per the terms and conditions of the agreement and to raise construction as per sanction and not as title holder of the property in question but respondent No. 1 exceeded its jurisdiction am illegally raised commercial construction, for that dispute, only civil Court is competent to decide the issue after framing issues in the trial.Similarly, in the revision petition preferred by the petitioner before the Director, Local Bodies against the order of compounding illegal construction by the Municipal Council, Udaipur the revision petition was dismissed solely on the ground that civil suit had been filed by the petitioner-plaintiff in which he can raise his grievance; meaning thereby, the Director. Local Bodies took care and note of the fact that civil suit has already been filed by the petitioner-plaintiff. 29. Local Bodies took care and note of the fact that civil suit has already been filed by the petitioner-plaintiff. 29. In view of above discussion, this Court is of the firm opinion that relief claimed by the petitioner-plaintiff against respondent No. 5 Municipal Council was not subject-matter of the arbitration clause as per Section 8 of the Act because as per Section 8 of the Arbitration and Conciliation Act the dispute in between the party can be decided by the Arbitrator none else, therefore, the Trial Court was under obligation to consider not only all the above aspects of the matter but also the adjudication made by the Hon'ble Supreme Court in Sukanya Holding's case (supra) at the time of deciding the application under Section 8 of the Act. It is also worthwhile to observe that the fact of appointment of Arbitrator by this Court and fact that Arbitrator has decided the dispute does not disentitle the petitioner to challenge the order dated 18.10.2005 passed by the civil Court in Civil Suit No. 55/2005 upon application filed under Section 8 of the Act by the defendant No. 1 and to get the relief prayed for in this revision petition. The order passed by the Addl. District Judge (Fast Track) No. 2, Udaipur whereby application filed by respondent No. 1 is not sustainable in law. 30. In the facts and circumstances of the case, while following the judgment of Hon'ble Supreme Court rendered in Sukanya Holding’s case(supra). This revision petition is allowed. The order impugned dated 18.10.2005 is hereby quashed and set aside. The matter is remitted to the Addl. District Judge (Fast Track) No. 2, Udaipur to decide the Civil Suit No. 55/2005 in accordance with law on merit.No order as to costs.Revision allowed. *******