Madhya Pradesh High Court
Nitesh vs Mohan on 7 July, 2023
Author: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 7th OF JULY, 2023
MISC. APPEAL No. 5201 of 2022
BETWEEN:-
NITESH S/O PARASRAM PATIDAR, AGED ABOUT
35 YEARS, OCCUPATION: BUSINESS TEHSIL
KUKSHI DISTRICT DHAR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI AKSHAT PAHADIA, ADVOCATE)
AND
1. MOHAN S/O LATE MANGAJI PATIDAR,
AGED ABOUT 50 YEARS, OCCUPATION:
AGRICULTURIST NEAR SARDAR PATEL
SCHOOL TEHSIL MANAWAR DISTRICT
DHAR (MADHYA PRADESH)
2. RADHESHYAM S/O LATE MANGGAJI
PATIDAR, AGED ABOUT 55 YEARS,
OCCUPATION: AGRICULTURIST NEAR
SARDAR PATEL SCHOOL, MANAWAR
(MADHYA PRADESH)
3. SMT. SUMAN D/O MANGGAJI PATIDAR,
AGED ABOUT 55 YEARS, OCCUPATION:
HOUSEWIFE MAIN ROAD, GRAM LINGWA,
TEH. KUKSHI (MADHYA PRADESH)
4. SMT. PUSHPA D/O MANGAJI PATIDAR, AGED
ABOUT 50 YEARS, OCCUPATION:
HOUSEWIFE PATIAR MOHALLA, GRAM
ANJAD TEH. BADWANI (MADHYA PRADESH)
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 10-07-2023
18:58:13
2
5. SMT. SUMITRA D/O MANGGAJI PATIDAR,
AGED ABOUT 56 YEARS, OCCUPATION:
BUSINESS GRAM KUWALI TEH. MANAWAR
(MADHYA PRADESH)
6. SHRIMATI RADHIKA W/O JAGDISH KULMI,
AGED ABOUT 60 YEARS, OCCUPATION:
HOUSEWIFE GRAM NEAR SARDAR PATEL
SCHOOL, MANAWAR DIST. DHAR (MADHYA
PRADESH)
7. SATISH S/O JAGDISH KULMI, AGED ABOUT 43
YEARS, OCCUPATION: AGRICULTURIST
GRAM NEAR SARDAR PATEL SCHOOL,
MANAWAR (MADHYA PRADESH)
8. SACHIN S/O JAGSIH KULMI, AGED ABOUT 38
YEARS, OCCUPATION: AGRICULTURIST
NEAR SARDAR PATEL SCHOOL, MANAWAR
(MADHYA PRADESH)
9. MINAKSHI W/O NIKETU BHAI PATEL, AGED
ABOUT 41 YEARS, OCCUPATION: HOUSEWIFE
GRAM ITOLA, TEH. BARODA (GUJARAT)
10. SMT. LAKSHMI W/O RAMESHWAR KULMI,
AGED ABOUT 55 YEARS, OCCUPATION:
HOUSEWIFE NEAR SARDAR PATEL SCHOOL
MANAWAR (MADHYA PRADESH)
11. JAYANTI W/O ANIL PATIDAR, AGED ABOUT
40 YEARS, OCCUPATION: HOUSEWIFE
NEAR ANNAPURNA BHAWAN, ANJAD, TEH
ANJAD (MADHYA PRADESH)
12. ARCHANA W/O LOKESH PATIAR, AGED
ABOUT 36 YEARS, OCCUPATION:
HOUSEWIFE ALIRAJPUR ROAD, NEAR
HONDA SHOWROOM, KUKSHI (MADHYA
PRADESH)
13. SMT. SAKSHI D/O LATE RAMESHWAR
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 10-07-2023
18:58:13
3
KULMI, AGED ABOUT 26 YEARS,
OCCUPATION: HOUSEWIFE NEAR SARDAR
PATEL SCHOOL, MANAWAR DHAR
(MADHYA PRADESH)
14. SMT. PINKI W/O RUPESH PATIDAR, AGED
ABOUT 32 YEARS, OCCUPATION: HOUSE
WIFE NEAR RAM MANDIR, GRAM
NISARPUR DISTT. DHAR (MADHYA
PRADESH)
15. SMT. REENA W/O ANURAG PATIDAR, AGED
ABOUT 29 YEARS, OCCUPATION:
HOUSEWIFE NEAR BUS STAND, DHAMNOD
DISTT. DHAR (MADHYA PRADESH)
16. SHIVAM S/O LATE RAMSHWAR KULMI,
AGED ABOUT 23 YEARS, OCCUPATION:
AGRICULTURIST NEAR SARDAR PATEL
SCHOOL, MANAWAR (MADHYA PRADESH)
17. SMT. PUSHPA W/O RAMESH MORYA, AGED
ABOUT 42 YEARS, OCCUPATION: HOUSE
WIFE GANDHI NAGAR, MANAWAR
(MADHYA PRADESH)
18. SHRIMATI GYARISIBAI W/O BABULAL
MUWEL, AGED ABOUT 50 YEARS,
OCCUPATION: HOUSEWIFE GANDHI
NAGAR, MANAWAR (MADHYA PRADESH)
19. SMT. NAVSEEBAI W/O ROOPSINGH MUWEL,
AGED ABOUT 48 YEARS, OCCUPATION:
HOUSE WIFE NEAR GANDHI NAGAR,
MANAWR (MADHYA PRADESH)
20. DINESH S/O RALIYA CHOUHAN, AGED
ABOUT 38 YEARS, OCCUPATION:
AGRICULTURIST NEAR PRADHAMIK
VIDHYALAY, SULIBAYADI KUWAD, TEH.
MANAWAR (MADHYA PRADESH)
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 10-07-2023
18:58:13
4
21. SMT. SUNITA W/O GABURSINGH BUNDELA,
AGED ABOUT 28 YEARS, OCCUPATION:
HOUSEWIFE PIPLIYAKHURD, POST
PAGARA, TEH. DHARAMPURI (MADHYA
PRADESH)
22. DHANNALAL S/O OMKAR CHOUHAN, AGED
ABOUT 38 YEARS, OCCUPATION:
AGRICULTURIST PIPLIYAKHURD, TEH.
DHARAMPURI (MADHYA PRADESH)
23. GULABSINGH S/O RAMSINGH DAWAR,
AGED ABOUT 40 YEARS, OCCUPATION:
AGRICULTURIST GRAM DEGOAN, TEH.
MANAWAR (MADHYA PRADESH)
24. SHIVAJI S/O GOVIND MUWLE, AGED ABOUT
35 YEARS, OCCUPATION: AGRICULTURIST
PATELPURA, KARONDIYA, TEH. MANAWAR
(MADHYA PRADESH)
25. SMT. PRAMILA W/O KAMALSINGH
CHOUHAN, AGED ABOUT 38 YEARS,
OCCUPATION: HOUSEWIFE R/O GRAM
DHANORA JERABAD TEHSIL GANDHWANI
DIST. DHAR (MADHYA PRADESH)
26. THE STATE OF MADHYA PRADESH
THROUGH COLLECTOR OFFICE OF THE
COLLECTOR, DHAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI YOGESH KUMAR MITTAL, ADVOCATE )
..................................................................................................................................
This appeal coming on for order/judgement this day, the court
passed the following:
JUDGEMENT
Heard finally, with the consent of the parties.
2] This miscellaneous appeal has been filed under Order 43 Rule
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 10-07-2023
18:58:13
1(r) of the Code of Civil Procedure, 1908 against the order dated
01.10.2022, passed in Case No.19-A/2022 by II Additional District
Judge, Manawar, District - Dhar whereby the learned Judge has
rejected the application filed by the appellant/plaintiff under Order
39 Rule 1 and 2 of CPC in the Civil Suit filed by the plaintiff for
specific performance of contract and cancellation of sale deed.
3] In brief, the facts of the case are that the appellant/plaintiff
and the respondent/defendant Nos.1 to 16 entered into a contract
regarding the sale of certain land situated at Gram Jagannathpura,
Tehsil Manawar, District Dhar vide agreement dated 22.10.2018.
Admittedly, after the aforesaid agreement was executed between the
parties, the defendant Nos.1 to 16 have sold a part of the said land
to defendant Nos.17 to 25, which led the plaintiff to file the
aforesaid suit along with an application for temporary injunction. A
reply was also filed by the defendant Nos.1 to 16 wherein it was
contended that since there is an arbitration clause in the original
agreement between the plaintiff and the defendant Nos.1 to 16, the
suit itself is not maintainable and is barred under Section 8 of the
Arbitration and Conciliation Act, 1996. On such plea, the learned
Judge of the trial Court has held that prima facie, as the plaintiff's
suit itself is not maintainable, for the question of grant of temporary
injunction does not arise.
4] Counsel for the appellant has relied upon a decision rendered
by the Supreme Court in the case of Sukanya Holdings (P) Ltd.
Vs. Jayesh H. Pandya and another reported as (2003) 5 SCC 531
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 10-07-2023
18:58:13
to submit that in the present case, despite the fact that there was an
arbitration clause between the parties, the defendant Nos.1 to 16
have sold a part of the land to the defendant Nos.17 to 25 through
registered sale deeds and thus, the aforesaid purchasers are also the
parties to the suit but as they have not entered into any arbitration
agreement with the plaintiff, their sale deeds cannot be challenged
in the arbitration dispute between the plaintiff and the defendants
no.1 to 16. It is submitted that since there are two parts of the
dispute, one, which can be adjudicated under the arbitration
agreement, and the other, in the civil suit only hence, in such
circumstances, arbitration clause would not be applicable and the
only remedy available to the plaintiff is to file a civil suit as has also
been held by the Supreme Court in the case of Sukanya Holdings
(P) Ltd. (supra).
5] Counsel for the respondents, on the other hand, has opposed
the prayer.
6] Having considered rival submissions, perusal of the
documents filed on record as also the decision rendered by the
Supreme Court in the case of Sukanya Holdings (P) Ltd. (supra),
the relevant paras of the same read as under:-
"12. For interpretation of Section 8, Section 5
would have no bearing because it only contemplates
that in the matters governed by Part-I of the Act,
Judicial authority shall not intervene except where so
provided in the Act. Except Section 8, there is no
other provision in the Act that in a pending suit, the
dispute is required to be referred to the arbitrator.
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 10-07-2023
18:58:13
Further, the matter is not required to be referred to the
arbitral Tribunal, if (1) the parties to the arbitration
agreement have not filed any such application for
referring the dispute to the arbitrator; (2) in a pending
suit, such application is not filed before submitting
first statement on the substance of the dispute; or (3)
such application is not accompanied by the original
arbitration agreement or duly certified copy thereof.
This would, therefore, mean that Arbitration Act does
not oust the jurisdiction of the Civil Court to decide
the dispute in a case where parties to the Arbitration
Agreement do not take appropriate steps as
contemplated under sub- sections (1) & (2) of Section
8 of the Act.
13. Secondly, there is no provision in the Act that
when the subject matter of the suit includes subject
matter of the arbitration agreement as well as other
disputes, the matter is required to be referred to
arbitration. There is also no provision for splitting the
cause or parties and referring the subject matter of the
suit to the arbitrators.
14. Thirdly, there is no provision as to what is
required to be done in a case where some parties to
the suit are not parties to the arbitration agreement. As
against this, under Section 24 of the Arbitration Act,
1940, some of the parties to a suit could apply that the
matters in difference between them be referred to
arbitration and the Court may refer the same to
arbitration provided that the same can be separated
from the rest of the subject matter of the suit. Section
also provided that the suit would continue so far as it
related to parties who have not joined in such
application.
15. The relevant language used in Section 8 is "in
a matter which is the subject matter of an arbitration
agreement", Court is required to refer the parties to
arbitration. Therefore, the suit should be in respect of
'a matter' which the parties have agreed to refer and
which comes within the ambit of arbitration
agreement. Where, however, a suit is commenced -
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 10-07-2023
18:58:13
"as to a matter" which lies outside the arbitration
agreement and is also between some of the parties
who are not parties to the arbitration agreement, there
is no question of application of Section 8. The words
'a matter' indicates entire subject matter of the suit
should be subject to arbitration agreement.
16. The next question which requires consideration
is even if there is no provision for partly referring the
dispute to arbitration, whether such a course is
possible under Section 8 of the Act? In our view, it
would be difficult to give an interpretation to Section
8 under which bifurcation of the cause of action that
is to say the subject matter of the suit or in some cases
bifurcation of the suit between parties who are parties
to the arbitration agreement and others is possible.
This would be laying down a totally new procedure
not contemplated under the Act. If bifurcation of the
subject matter of a suit was contemplated, the
legislature would have used appropriate language to
permit such a course. Since there is no such indication
in the language, it follows that bifurcation of the
subject matter of an action brought before a judicial
authority is not allowed.
17. Secondly, such bifurcation of suit in two parts,
one to be decided by the arbitral tribunal and other to
be decided by the civil court would inevitably delay
the proceedings. The whole purpose of speedy
disposal of dispute and decreasing the cost of
litigation would be frustrated by such procedure. It
would also increase the cost of litigation and
harassment to the parties and on occasions there is
possibility of conflicting judgments and orders by two
different forums."
(emphasis supplied)
7] On a bare perusal of the aforesaid decision of the Supreme
Court, this Court has no hesitation to hold that in the present case
the dispute is not only between the plaintiff and the defendant Nos.1
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Signed by: PANKAJ
PANDEY
Signing time: 10-07-2023
18:58:13
to 16 with whom he had an arbitration agreement, but the other
defendants also, namely, defendant Nos.17 to 25, to whom the
defendant Nos.1 to 16 have sold a part of the land, already sold to
the plaintiff through a registered sale deed. In such circumstances,
only the Civil Court will have the jurisdiction to decide the lis
between the parties.
8] In such circumstances, the finding recorded by the trial
Court that the suit itself is barred under Section 8 of the
Arbitration and Conciliation Act, 1996 cannot be countenanced
in the eyes of law and is hereby set aside, and the matter is
remanded back to the trial Court to decide the temporary
injunction application filed by the plaintiff, in accordance with
law.
9] Let the aforesaid application be decided within a period of 15
days from the date of receipt of certified copy of this order.
10] It is made clear that this Court has not reflected upon the
merits of the case.
11] With the aforesaid, the appeal stands allowed and disposed
of.
(Subodh Abhyankar)
Judge
Pankaj
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 10-07-2023
18:58:13
