- (1.) AMITAVA Lala, J. By consent of the parties the appeal is heard on the informal papers being the complete set of the context as per the require ment.
(2.) THIS appeal has been preferred by the plaintiff-appellant against the judg ment and decree dated 18th August, 2006 passed by the Court below dismissing the suit as well as rejecting the interim injunction application on the ground that the suit is not maintainable in view of the arbitration clause arising in the pur ported lease agreement executed by or between the parties on 27th December, 2005. The specific grievance of the plaintiff/appellant in the suit is that they were threatened by the representative/s of the respondents to remove from the occupa tion and in the appeal the specific grievance is that boards of the shop were removed in the night of 4-5th August, 2q06, a notice of termination of occupancy right was issued to them on 5th August, 2006 and they have threatened from entering into the shop from such date. Mr. B. D. Mandhyan, learned Senior Counsel appearing in support of the appeal, contended that the action on the part of the respondents is as good as "house grabbing". He relied upon few judgments to substantiate that for the pur pose of recovery of possession no second suit is required to be filed but neces sarily can be considered in the existing suit itself. In AIR 1996 SC 2102, Samir Sobhan Sanyal v. Tracks Trade Pvt. Ltd. and others, it was held that the Court can not blink at the unlawful conduct to dispossess the person from the demised premises and would say that the status quo be maintained. If the Court gives acceptance to such high-handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. Due process of law would be put to ridicule in the estimate of the law-abiding citizens and rule of law would remain a mortuary. Factually, no step had been taken either to have the person in possession im-pleaded as a party defendant to the suit for specific performance nor a decree was obtained personally against him in any other independent proceedings. JT 2002 (2) SC 253, Konda Lakshmana Bapuji v. Govt. of Andhra Pradesh and others, has been referred to establish what are the ingredients to construe "land grabbing" being similar to "house grabbing". He also cited a judgment reported in Al R 1968 SC 620, Lallu Yeshwant Singh (dead) by his legal representative v. Rao Jagdish Singh and others, to establish the word "trespass" to include forcible entry and dispossession by the landlord. The landlord does commit trespass when he forcibly enters on land in the possession of a tenant whose tenancy has expired, Mr. Shashi Nandan, learned Senior Counsel appearing for the defendants-respondents, contended that right to occupy the premises as per the agreement is conditional for specific commercial purpose to operate a Chinese Cuisine Res taurant under the name and style of "yo China". Since the right of such franchise had been withdrawn, termination of occupancy right is automatic. This type of occupancy right in a multiplex/mall etc. is a modern concept which only exists till the existence of franchise. All the occupiers have similar right. This occupier cannot have better right to carry out its business irrespective of termination of agreement for any other purpose and against the goodwill of multiplex/mall con sisting of various reputed business houses and/or their franchise. Moreover, the lease agreement contains an arbitration clause under Clause 4. 8, which is as follows: "4. 8 Arbitration ,, In the event of any dispute/difference (s) between the Lessor and/or the Lessee in respect of any of the terms and/or interpretation thereof or other wise, the same shall be referred to for adjudication to the sole arbitrator to be appointed by the Lessor. The said arbitrator shall decide the issue (s) as per the Arbitration and Conciliation Act, 1996, amended up to date. The venue of the arbitration for the convenience shall be NOIDA. The decision of the arbi trator shall be final and binding on the parties. The parties to the arbitration shall bear the respective cost of arbitration. "
(3.) FOR the sake of convenience, the jurisdiction clause under the lease agree ment, is also set out hereunder: "4. 8 Jurisdiction This transaction has taken place at Noida and as such Courts at Uttar Pradesh shall have exclusive jurisdiction to entertain any dispute arising out or in any way touching or concerning this Agreement. " According to us, Mr. Mandhyan wanted to put the cart before the horse Unless a forum is selected in accordance with law for the purpose of invocation of the same, subject matter in merit cannot be heard by such Court. Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter called as the "arbitration Act") speaks as follows: "8. Power to refer parties to arbitration where there is an arbitration agree ment.- (1) 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 dis pute, refer the parties to arbitration. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by tkfe original arbitration agreement or a duly cer tified copy thereof. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitra tion may be commenced or continued and an arbitral award made. ";