Manoj Kumar Gupta, J. - (1.) The instant revision is directed against the judgement and decree dated 11.12.2009 whereby SCC Suit No.10 of 2007 filed by the plaintiff-respondent in the Court of Small Causes for recovery of arrears of rent and mesne profits and for eviction of the revisionists, has been decreed. The trial court has held that the revisionists have defaulted in payment of rent; that notice dated 1.2.2007 given to the revisionists was duly served upon them; that it was a valid notice and was not waived as alleged by the revisionists; that rent of the premises being above Rs.2000/-, the building under tenancy of the defendants was exempt from the provisions of U.P. Act No.13 of 1972; that the revisionist, which is a Cooperative Society, is not covered under Section 80 CPC; that Clause 12 of the lease agreement dated 27.7.1998 providing that the dispute arising out between the parties from the lease agreement, would be decided by the arbitrator, is no more in operation, the lease agreement having expired in the year 2000. Therefore, the dispute was not liable to be referred to the arbitrator.
(2.) Learned counsel for the revisionists submitted that by virtue of Clause 12 of the lease agreement dated 27.7.1998, the dispute raised in the suit was liable to be referred to the Arbitrator and the court below erred in entertaining the suit. He further submitted that the issue relating to arbitrability of the dispute should have been referred for decision by the Arbitrator under Section 16 of the Arbitration and Conciliation Act, 1996. The trial court erred in going into the said aspect. He further submitted that the suit was bad for want of notice under Section 117 of the U.P. Cooperative Societies Act, 1965 (hereinafter referred to as 'the Act').
(3.) On the other hand, learned counsel for the plaintiff-respondent submitted that where the relief claimed is for recovery of arrears of rent and for eviction of a tenant, the dispute has to be decided by the Judge Small Causes/Civil Court and it could not be referred for decision by an Arbitrator. In support of his contention, he has placed reliance on the judgement of the Supreme Court in Himangi Enterprises vs. Kamaljeet Singh Ahluwalia, 2017 10 SCC 706. He further submitted that the defendants have not raised any plea regarding non-maintainability of the suit for want of notice under Section 117 of the Act, therefore, the said plea cannot be raised for the first time before this Court.;