The main legal point established is that an application under Section 9 of the Arbitration Act for interim measures is not maintainable without pending arbitration proceedings, and the party seeking the measures must establish a prima facie case for the injunction.

( 1 ) THIS is an appeal filed under Section 37 of the Arbitration and conciliation Act, 1996, against the order dated 19-4-1997, in miscellaneous Case No. 23 of 1997, on the file of the learned district Judge, Dakshina Kannada at Mangalore.

( 2 ) THE appellant here in filed an application before the lower Court under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Arbitration Act') and sought for permanent injunction to restrain the respondent, his men or agents or any person claiming through him from tresspassing into or in any way interfering with the peaceful possession and enjoyment of A and B Schedule properties shown in the application.

( 3 ) ALONG with the said application, the appellant here in also filed I. A. II under Section 9 (d) of the Arbitration Act read with order 39, Rules 1 and 2 and Section 151, CPC and sought for an ad-interim order of temporary injunction against the respondent and his men.

( 4 ) AFTER entertaining the application, the Trial Court passed an ex parte order of temporary injunction on 19-3-1997. After receipt of the Court notice, the respondent herein appeared before the lower Court and filed his objections to the application filed by the appellant. The Court below, after considering the materials produced by the parties, passed the impugned order rejecting the application filed by the appellant. It is this order which is challenged in this appeal.

( 5 ) THE case put forth by the appellant before the lower Court by filing the application under Section 9 of the Arbitration Act is that he had entered into a partnership with respondent in the year 1976. According to the appellant, he is a doctor and the respondent is also a doctor. The respondent was his teacher in the Medical College. The appellant's mother was also a doctor and she was running a clinic in the premises in question and after her death, the appellant came into possession of the said clinic and it is thereafter that he entered into a partnership with the respondent for running the clinic for a period of 20 years. Admittedly, the Partnership Deed was not registered. There are several conditions under the Partnership Deed and one of the conditions was that the appellant is to receive certain amount monthly from the respondent.

( 6 ) IT was alleged by the appellant that after the expiry of the 20 years period as provided under the Partnership Deed, he issued a notice to the respondent terminating the partnership and sent another notice directing the respondent to deliver back possession of the schedule premises to the appellant. Both the notices were replied by the respondent. There is also a clause in the Partnership Deed for referring any dispute between the partners to arbitration. It is the case of the appellant that he has named an arbitrator but the respondent has not named any arbitrator in spite of his request to the respondent. It was submitted by the appellant that under the Partnership Deed he was entitled to be in possession exclusively after the period mentioned in the deed. In view of the provisions of Section 9 of the Arbitration Act, the appellant sought for issue of perpetual injunction by way of the application.

( 7 ) THE respondent appeared and contended that the application filed-under Section 9 of the Arbitration Act is not maintainable without there being any arbitration proceedings pending. The respondents also denied the allegations made by the appellant in the application. The respondent has also replied to every allegation made by the appellant. The Court below, following the judgment of the Hon'ble Supreme Court in Mis. Sant Ram and Company v State of Rajasthan, held that the application filed before him under Section 9 of the Arbitration act was not maintainable. It also observed that when the appellant has sought for possession from the respondent by issuing a notice, the appellant cannot ask for an order of injunction against the respondent.

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