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Surendra Singh v. Civil Judge And Another - WRIT - C No. 16185 of 2006  RD-AH 6816 (28 March 2006)
Civil Misc. Writ Petition No.16185 of 2006
Civil Judge, Senior Division, Gorakhpur & Anr.
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Dilip Gupta, J.
This writ petition has been filed for a direction upon the respondent no.1 to decide the application moved by the petitioner under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure in Suit No. 557 of 2005, Surendra Singh Vs. Shreem Investments.
In the instant case, the petitioner has filed the suit along with an application for interim relief. The respondent no.2 herein moved an application under Order VII Rule 11, C.P.C. read with Section 8 of the Arbitration and Conciliation Act, 1996. The application of the respondent no.2 had been decided wherein the learned Civil Court has decided that the matter may be referred to the arbitration in terms of the agreement entered into between the parties and the suit be kept pending with a further direction to file Award before the Court. Such a course is not permissible in law once the application under Order VII Rule 11 C.P.C. is accepted, the plaint stands rejected and the observations made by the learned Civil Court that the suit remains pending is meaningless. Therefore, in such a fact situation, we cannot direct the Civil Court to decide the application filed by the petitioner under Order XXXIX Rules 1 and 2, C.P.C.
However, in the facts and circumstances of the case, we clarify that in case the petitioner moves a proper application under Section 9 of the Act 1996 for interim relief till the Arbitrator is appointed, the Competent Court may consider the same and pass appropriate order in accordance with law.
With these observations, the petition stands disposed.
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