Prakash Tatia, J. - (1.) HEARD learned Counsel for the parties.
(2.) THE petitioner/defendant is aggrieved by the order dated 1.12.2005 passed by the court below dismissing the petitioner's application under Section 8 of the Arbitration & Conciliation Act, 1996 (for short 'the Act of 1996'). Brief facts of the case are that the plaintiff/respondent filed suit for injunction against the petitioner/defendant. On the first date 1.12.2004, the learned Presiding Officer of the Court was on leave and, therefore, the case was adjourned for filing written statement. On 11.12.2004, time was sought for filing written statement. On 15.12.2004 i.e. on the next date, an application was submitted under Order 7 Rule 11 CPC for rejection of the plaint on the ground that there is an arbitration clause, therefore, the civil court has no jurisdiction to entertain the suit. With this application, the original arbitration agreement was not submitted by the defendant nor any copy was submitted. On 31.1.2005, copy of arbitration agreement was submitted by the defendant in the trial court. On 25.2.2005, another application under Section 8 of the Act of 1996 was submitted by the petitioner/ defendant.
(3.) THE trial court did not decide the application filed under Order 7 Rule 11 CPC and proceeded to decide the application under Section 8 of the Act of 1996. The trial court vide its impugned order observed that the petitioner did not submit the original or the copy of the arbitration agreement along with the application under Order 7 Rule 11 CPC and, therefore, even if the application under Order 7 Rule 11 CPC is treated as application under Section 8 of the Act of 1996, then that was not accompanied with the copy of arbitration agreement. So far as the application filed underSection 8 of the Act of 1996 is concerned, that was not filed at the first instance and, therefore, in view of Section 8(1), the matter cannot be referred to the Arbitrator.;