# Jetendra Pandey Revisionist v. Narain Jotwani - **Citation:** (2016) 8 ILRA 995 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-08-17 - **Bench:** Attau Rahman Masoodi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jetendra-pandey-revisionist-v-narain-jotwani-44293 - **Pages:** 5 ## Headnote This revision has been filed against the order dated 20.5.2016 whereby the application filed under Order VI Rule 17 read with Section 151 CPC in SCC Suit No. 000187 of 2014 has been rejected on the ground that the revisionist has not shown due diligence in bringing on record the plea sought to be raised in the application, and it was found that allowing such a plea to be incorporated in the written statement at a stage when the suit proceedings had progressed to the stage of evidence which was about to close would defeat the expediency of proceedings. I have given my anxious thought to the rival submissions made before this Court and it is found that an arbitration clause would not oust the jurisdiction of the civil court under Section-9 CPC or the remedy available under the Small Causes Court Act unless the parties invoke the arbitration clause at the threshold of dispute. Once the civil remedy is subscribed to by an aggrieved person by filing first statement, the course of arbitration shall stand obstructed due to the operation of Section 8 of the Arbitration Act. Moreover, once there is a failure on the part of the revisionist to take advantage of Section 8 of the Arbitration Act and from his conduct it is clear that the jurisdiction of the judicial authority has been subscribed to, for him waking up at a later stage to invoke the provision of Order VI Rule 17 for seeking an amendment which otherwise is not permissible under law, would defeat the very object of expediency of trial. The civil revision is accordingly dismissed with no order as to cost. Held: Para- Case Law discussed : 2016 (34) LCD 177 (Ishaq @ Gama Ahmad v. Smt. Champa Devi); 2005 (23) LCD 658 (Murari Lal v. 5th Additional District Judge, Bulandshahr and others); 2008 All. C.J. 2333 (Chander Kanta Bansal v. Rajinder Singh Anand); and (2001) 2 SCC 472 (Ragu Thilak D. John v. S. Rayappan and others). Magma Leasing & Finance Ltd. V. Potluri Madhavilata, (2009)10 SCC 103, Santlal v. Ramkewal and others, 2014 (6) All. L.J. 602 996 INDIAN LAW REPORTS ALLAHABAD SERIES ## Text 8 All. Jetendra Pandey Vs Narain Jotwani 995 (2016) 8 ILRA 995 REVISIONAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 17.08.2016 BEFORE THE HON'BLE ATTAU RAHMAN MASOODI, J. S.C.C. Revision Defective No.- 128 Of 2016 Jetendra Pandey ...Revisionist Versus Narain Jotwani ...Opposite party Counsel for the Revisionist: Anand Dubey Counsel for the Opposite party: Ashish Saxena, Brijesh Kumar Saxena This revision has been filed against the order dated 20.5.2016 whereby the application filed under Order VI Rule 17 read with Section 151 CPC in SCC Suit No. 000187 of 2014 has been rejected on the ground that the revisionist has not shown due diligence in bringing on record the plea sought to be raised in the application, and it was found that allowing such a plea to be incorporated in the written statement at a stage when the suit proceedings had progressed to the stage of evidence which was about to close would defeat the expediency of proceedings. I have given my anxious thought to the rival submissions made before this Court and it is found that an arbitration clause would not oust the jurisdiction of the civil court under Section-9 CPC or the remedy available under the Small Causes Court Act unless the parties invoke the arbitration clause at the threshold of dispute. Once the civil remedy is subscribed to by an aggrieved person by filing first statement, the course of arbitration shall stand obstructed due to the operation of Section 8 of the Arbitration Act. Moreover, once there is a failure on the part of the revisionist to take advantage of Section 8 of the Arbitration Act and from his conduct it is clear that the jurisdiction of the judicial authority has been subscribed to, for him waking up at a later stage to invoke the provision of Order VI Rule 17 for seeking an amendment which otherwise is not permissible under law, would defeat the very object of expediency of trial. The civil revision is accordingly dismissed with no order as to cost. Held: Para- Case Law discussed : 2016 (34) LCD 177 (Ishaq @ Gama Ahmad v. Smt. Champa Devi); 2005 (23) LCD 658 (Murari Lal v. 5th Additional District Judge, Bulandshahr and others); 2008 All. C.J. 2333 (Chander Kanta Bansal v. Rajinder Singh Anand); and (2001) 2 SCC 472 (Ragu Thilak D. John v. S. Rayappan and others). Magma Leasing & Finance Ltd. V. Potluri Madhavilata, (2009)10 SCC 103, Santlal v. Ramkewal and others, 2014 (6) All. L.J. 602 996 INDIAN LAW REPORTS ALLAHABAD SERIES (Delivered by Hon'ble Attau Rahman Masoodi, J.) 1. Heard Sri Anand Dubey, learned counsel for the revisionist and Sri B. K. Saxena, learned counsel for opposite party. 2. Delay in moving the revision is condoned. 3. This revision has been filed against the order dated 20.5.2016 whereby the application filed under Order VI Rule 17 read with Section 151 CPC in SCC Suit No. 000187 of 2014 has been rejected on the ground that the revisionist has not shown due diligence in bringing on record the plea sought to be raised in the application, and it was found that allowing such a plea to be incorporated in the written statement at a stage when the suit proceedings had progressed to the stage of evidence which was about to close would defeat the expediency of proceedings. 4. Before entering into other grounds of challenge against the impugned order passed on the application filed under Order VI Rule 17 CPC, it is desirable to answer whether such a plea in the teeth of Section-8 of the Arbitration Act, 1996 was at all open to be raised. A question to this effect has cropped up. The reason being that the lease deed postulates an arbitration clause and the plea of arbitration clause being available was not taken before filing of the written statement in order to stop suit proceedings to progress before the court below under the provisions of Provincial Small Causes Court Act, 1887. Now at an advanced stage when proceedings have reached the stage of evidence, it is questionable whether raising of such a plea is permissible under law. 5. Briefly stated, facts of the case are that the revisionist entered into a lease agreement with the opposite party in respect of the premises in question rented out to him on a monthly rent of Rs. 30,000/-for a period of five years, subject to other terms and conditions stipulated in the lease dated 27.12.2013. The monthly rent was payable in advance on the first day of every calendar month and various bills/taxes levied by the government and municipality and other local body/authority were liable to be paid by the lessee i.e. the revisionist. The revisionist-lessee as per the allegations made in the plaint was alleged to have breached not only the stipulation of payment of rent but also the dues payable to the local bodies, particularly electricity dues as such, occasion to terminate the tenancy by a written notice arose and tenancy was terminated on 19.7.2014. The tenant-lessee, however, is said to have not responded to the notice of termination of tenancy and continued to remain in arrears of rent as well as the dues towards other heads in terms of the lease deed. The failure to act in response to the notice of termination of tenancy, led to the institution of suit for eviction by the opposite party. The suit was filed in the month of August, 2014 wherein written statement was filed by the revisionist-respondent on 9.3.2015. The suit proceedings progressed further and have reached the stage of evidence with due participation of the parties. However, as aforesaid, an application under Order VI Rule 17 read with Section 151 CPC was filed by the revisionist whereby the stipulation of arbitration clause was sought to be pleaded through amendment in the written statement. 8 All. Jetendra Pandey Vs Narain Jotwani 997 6. The application filed by the revisionist was opposed by the opposite party, namely, the plaintiff. The objections filed by the plaintiff clearly stated that a copy of the lease deed being available to the revisionist and its subject matter being known to him, such a defence was open but at this stage, through an amendment, taking the plea would be impermissible. The amendment was also opposed on the strength of the provisions underlying the Order VI Rule 17. The court below, having regard to the facts and circumstances of the case, has rejected the application by means of the impugned order, giving rise to the present revision. 7. It is argued by learned counsel for the revisionist that the court below without delving into the subject matter of the application on the touchstone of Section 8 of the Act, has only dealt with the application within the purview of Order VI Rule 17. The submission proceeds that unless the application was allowed, the issue that arbitration clause bars the suit would be decided at a later stage. In other words, the stage of appreciating the grievance in the light of Section 8 of the Arbitration Act would arise only after allowing the application. Failure on the part of revisionist to act diligently is attributed to the negligence on the part of counsel who was previously conducting the case. 8. Learned counsel for the revisionist essentially argued that the application for amendment ought to have been allowed and legality of the objections was open to be considered later but the court below having failed to do so, has committed a manifest error of law warranting interference under Section 115 CPC. 9. Learned counsel for the revisionist placed reliance upon the decisions reported in 2016 (34) LCD 177 (Ishaq @ Gama Ahmad v. Smt. Champa Devi); 2005 (23) LCD 658 (Murari Lal v. 5th Additional District Judge, Bulandshahr and others); 2008 All. C.J. 2333 (Chander Kanta Bansal v. Rajinder Singh Anand); and (2001) 2 SCC 472 (Ragu Thilak D. John v. S. Rayappan and others). Relying upon the aforesaid, it is submitted that the plea giving rise to a legal question, was open to be taken at any stage of the proceedings and precluding the revisionist to advance such a plea amounts to miscarriage of justice. 10. Per contra, learned counsel for the respondent, while defending the impugned order, argued that the court below while passing the impugned order has not committed any error of law, rather, the very application filed by the revisionist for seeking an amendment in the written statement is in the teeth of Section 8 of the Arbitration Act, which permits the plea of arbitration to be raised before the stage of filing written statement. It is argued that once stage of filing an application under Section 8 is allowed to lapse, the revisionist having waived the right available to him, cannot turn around for taking shelter of such a plea after filing the written statement. In fact, inclusion of such a plea in the written statement itself amounts to waiver of right, therefore, the application filed by the revisionist erodes the foundation of his own case. 11. Section 8 of the Arbitration Act being relevant for the present controversy is extracted below: "8. Power to refer parties to arbitration where there is an arbitration agreement:- 998 INDIAN LAW REPORTS ALLAHABAD SERIES (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made." 12. From a plain reading of the aforesaid provision, it is clear that it is always open to a party to raise objection on the strength of an arbitration clause before subscribing to the jurisdiction of a judicial authority which in the present case is the Judge, Small Causes Court. Once the written statement was filed before the court below, the stage of filing an application under Section 8 of the Arbitration Act was allowed to lapse by the revisionist consciously. To turn the clock back for availing the benefit as was open to the revisionist at the time of instituting the suit proceedings seems to be too late. This Court finds that the revisionist had shown no inclination to protest on the strength of arbitration clause against the notice issued to him nor any protest was put up by filing an application before the court below under Section 8 of the Act so as to avoid suit proceedings in terms of clause-26 read with clause 29 of the agreement. The revisionist also failed to file an application raising the plea with regard to the arbitration clause before filing the written statement. In such a situation, inviting attention of this Court to the decision rendered by apex court rendered in Branch Manager, Magma Leasing & Finance Ltd. v. Potluri Madhavilata, (2009)10 SCC 103 and by this Court in Santlal v. Ramkewal and others, 2014 (6) All. L.J. 602, it is demonstrated that the course adopted by the revisionist by filing an application under Order VI Rule 17 being not open in law and the scope of principles embodied thereunder being also against the revisionist, has rightly been construed by the court below while passing the impugned order. 13. I have given my anxious thought to the rival submissions made before this Court and it is found that an arbitration clause would not oust the jurisdiction of the civil court under Section-9 CPC or the remedy available under the Small Causes Court Act unless the parties invoke the arbitration clause at the threshold of dispute. Once the civil remedy is subscribed to by an aggrieved person by filing first statement, the course of arbitration shall stand obstructed due to the operation of Section 8 of the Arbitration Act. Moreover, once there is a failure on the part of the revisionist to take advantage of Section 8 of the Arbitration Act and from his conduct it is clear that the jurisdiction of the judicial authority has been subscribed to, for him waking up at a later stage to invoke the provision of Order VI Rule 17 for seeking an amendment which otherwise is not permissible under law, would defeat the very object of expediency of trial. 14. The order passed by the court below in the facts and circumstances of the present case does not suffer from any illegality so as to call for interference by this Court. The civil revision is accordingly dismissed with no order as to cost. --------- 8 All. Sudhir Kumar Mishra Vs State Of U.P. & Ors. 999 (2016) 8 ILRA 999 APPELLATE JURISDICTION CIVIL SIDE DATED: LUCKNOW 19.08.2016 BEFORE THE HON'BLE AMRESHWAR PRATAP SAHI, J. THE HON'BLE DR. VIJAY LAXMI, J. Special Appeal No.- 175 Of 2016 Sudhir Kumar Mishra ...Appellant Versus State Of U.P. & Ors. ...Respondents Counsel for the Appellant: Anuj Kumar Garg, Ram Mohan Mishra Counsel for the Respondents: C.S.C. This special appeal has been filed against the judgment and order dated 20.01.2016 passed by learned Single Judge in Writ Petition No.7501 (SS) of 2005, Sudhir Kumar Mishra vs. The State of Uttar Pradesh and others whereby the order dated 28.09.2006 of the state government rejecting the representation of the petitioner for compassionate appointment was confirmed and Writ Petition was dismissed. The father of the appellant, Shri Rama Shanker Mishra, while working as Collection Amin at Tehsil Bighapur, District Unnao, died on 01.10.1996 leaving behind his widow, three daughters and the petitioner. The mother of the petitioner, Smt. Vijaya Devi, did not claim compassionate appointment but moved an application on 28.08.2000 before the District Magistrate, Unnao, making submissions that she did not claim compassionate appointment since she was neither qualified nor was able to take up employment due to her continued illness. Her three daughters were of marriageable age and were not inclined to take up any employment. Her only son, the petitioner, who was studying in Class-X, was not eligible for appointment as he was minor and was to attain majority in year 2004. In this situation, it was, thus, prayed that in view of amended provisions of Section 5 of the Uttar Pradesh Recruitment of Dependents of Government Servant Dying in Harness Rules, 1974 ( in short referred to as "1974 Rules") period of 5 years may be relaxed in respect of her son who may be considered for employment and a post be kept reserved for employment of her son under the Rules. On the basis of objective considerations founded on the disclosures made by the petitioner in this case for compassionate appointment and having considered the reasons for the delay, we are of the opinion that undue hardship within the meaning of the first proviso to Rule 5 of the Rules would be caused to the petitioner and his family by the application of the time limit of five years. The expression 'undue hardship' has not been defined in the Rules. Undue hardship would necessarily postulate a consideration of relevant facts and circumstances of the case. In view the income of the family, its financial condition, the extent of dependency and marital status of its members, its liabilities, the terminal benefits received by the family; the age, together with the nugatory income from any other sources in this case, we are of the view that the family continues to suffer financial distress and hardship occasioned by the death of the bread winner. Considering the penurious condition of the family, it appears to be one of the rarest of rare cases where due to exceptional