JAGAT NARAYAN, J. - (1.) THIS is a revision application by Chhoga Lal and Madan Lal against an order of the Senior Civil Judge, Ajmer, refusing to adjudicate upon the question as to whether the alleged arbitration agreement was entered into by them in a proceeding under sec. 8 of the Arbitration Act instituted by M/s. New Ganesh Finance Co. , Beawar, respondent.
(2.) THE respondent filed an application under sec. 8 (1) (b) of the Arbitration Act alleging that the applicants entered into a hire purchase agreement with it on 13th June, 1960 at Beawar which amongst other covenants contained an agreement of reference to arbitration of any dispute that may arise between the parties in connection with the claims arising out of and in respect of the said agreement of hire purchase, that the parties appointed Shri Shrikishan Ghiya, pleader of Beawar, as the sole arbitrator, that the respondent filed a claim before the said arbitrator and that the said arbitrator has refused to act. The applicants filed a reply in which it was alleged that they merely hired a truck from the respondent and did not enter into any written agreement and that their signatures were obtained on 65 blank papers including some stamps at Udaipur. Before the learned Senior Civil Judge it was prayed on their behalf that it may first be decided whether there was an arbitration agreement between the parties. This prayer was overruled by him or. two grounds. One ground is that if the court adjudicates upon the question as to whether or not they entered into arbitration agreement it would really be deciding whether or not they entered into the hire purchase contract as both are contained in the same document and would thereby be encroaching upon the jurisdiction of the arbitrator. The opinion of me learned Senior Civil Judge is erroneous on this point. In Heyman vs. Darwins, Ltd. (1) the law on the subject has been clearly stated in the following passage: "an arbitration clause is a written submission agreed to by the parties to the contract, and, like other written submissions to arbitration, must be construed according to its language and in the light of the circumstances in which it is made. If the dispute is as to whether the contract which contains the clause has ever been entered into at all, that issue cannot go to arbitration under the clause, for the party who denies that he has ever entered into the contract is thereby denying that he has ever joined in the submission. " The above statement of law was approved by their Lordships of the Supreme Court in R. G. Insurance Co. vs. Pearey Lal (2 ). It will thus be seen that it is the court and the court alone which can decide whether or not the contract which contains the arbitration clause was entered into at all. The second ground on which the learned Senior Civil Judge refused to decide the question was that the applicants had not moved an application under sec. 33 of the Arbitration Act. To meet this technical objection Shri Dalpat Singh states on behalf of the applicants that their written statement may be treated as an application under sec. 33 of the Arbitration Act. In Panchanan Pal vs. Nani Gopal Niyogi (3) on objection filed against an application under sec. 8 was treated as an application under sec. 33 of the Arbitration Act. I accordingly allow the revision application, set aside the order of the learned Senior Civil Judge refusing to adjudicate upon the existence of the arbitration agreement and direct him to adjudicate upon it treating the objection filed by the applicants as an application under sec. 33 of the Arbitration Act. The appointment of Shri Moti Prasad Mehra as arbitrator will stand unless the learned Senior Civil Judge comes to the finding that there was no arbitration agreement between the parties. . ;