Jitendra Kumar Jain and Others v. Satendra Kumar Jain
2012-12-20
A.P.SAHI
body2012
DigiLaw.ai
A.P. Sahi, J.— Heard Sri K.K. Arora, learned counsel for the petitioners and Sri Rahul Sahai for the respondents. 2. In a dispute with regard to a common passage, which is contained in the plaint map, the Suit is sought to be resisted by the defendants on the ground that this dispute ought to have been referred to the arbitrator as per clause-4 of the Deed dated 1.3.2000 read with clause-7 of the Deed dated 21.3.1997. The defendants, who are the petitioners before this Court, moved an application under Order VII Rule 11 C.P.C., which was rejected by the trial court and affirmed in revision that has given rise to this writ petition. 3. Sri K.K. Arora, learned counsel has extensively taken the court through the plaint allegations and the plaint map coupled with the two Deeds referred to herein above and he submits that in view of this specific arbitration clause, the trial court has committed a manifest error by rejecting the application under Order VII Rule 11 and a material irregularity has been committed by the revisional court by affirming the same. Hence the impugned order deserves to be set aside and the Suit should be dismissed keeping in view the aforesaid provisions of arbitration in the deeds referred to herein above. 4. He has orally submitted that the Dissolution Deed dated 1.3.2000 was never acted upon as per the stand in the written-statement and, therefore, in view of the aforesaid defence, the arbitration clause should be invoked to the advantage of the defendants. 5. Sri Rahul Sahai, on the other hand, submits that the arbitration clause nowhere relates to the cause of action which has now arisen and disclosed by the respondent - plaintiff in the Suit namely the obstruction in the common passage that was agreed upon in the Deed dated 1.3.2000. He submits that it is the violation of these vested rights under the Dissolution Deed that has given a cause of action for the purpose of filing of the Suit in the enjoyment of the common passage. He submits that there is no dispute at all with regard to the contents of the Dissolution Deed dated 1.3.2000 or the terms and conditions thereof for the purpose of attracting the arbitration clause.
He submits that there is no dispute at all with regard to the contents of the Dissolution Deed dated 1.3.2000 or the terms and conditions thereof for the purpose of attracting the arbitration clause. He, therefore, contends that the trial court was justified in rejecting the application and the revisional court has rightly dismissed the revision upholding the same. 6. I have considered the submissions raised and on a close scrutiny of clause-4, the recital thereof leaves no room for doubt that any dispute arising amongst the partners in relation to the said Dissolution Deed shall be decided by the arbitrator. On a perusal of the application under Order VII Rule 11, there does not appear to be any dispute with regard to the contents of the dissolution-deed and as a matter of fact the Deed dated 21.3.1997 and the Deed dated 1.3.2000 are accepted to have have been drawn up and signed by the parties. In the aforesaid circumstances, this cannot be said to be a dispute in relation to the Deed which is not under challenge. 7. It is the subsequent action of the parties after they have been vested with certain rights under the Deed and enjoying the same that some dispute has arisen about the utilisation and enjoyment of a common passage. In my opinion, the same does not fall within the arbitration clause on a bare perusal and understanding of clause-4 of the Dissolution Deed and, therefore, neither the trial court nor the revisional court have committed any error in rejecting the application under Order VII Rule 11 of the Civil Procedure Code. 8. The writ petition lacks merits and is dismissed. _____________