JUDGMENT :

1. This is an application under Article 227 of the Constitution of India against the order dated 7th October, 2021 passed by the learned Civil Judge (Senior Division), 3rd Court at Barasat in Title Suit No.498 of 2020. By the impugned order, the learned Trial Court rejected the defendant’s challenge about maintainability of the suit with cost of Rs.500/-.

2. The petitioner’s case is that the plaintiff/respondent filed the instant suit, being Title Suit No.498 of 2020, for a decree of eviction and recovery of Khas possession of the two properties mentioned in Schedule-A and Schedule-B to the plaint against self-same defendant. The defendant/petitioner appeared in the suit and filed an application challenging the maintainability of the subject matter of the suit, where plaintiff filed written objection. The defendant also filed written statement subsequently. Learned Trial Court had taken up the application for maintainability filed by the defendant/petitioner on 7th October, 2021 and was pleased to reject the contention of the defendant/petitioner as above.

3. Mr. Rajib Mukherjee, learned counsel appearing on behalf of the petitioner submits that it is settled law that if any agreement contained arbitration clause, then upon an application of either party of the suit, the matter should be referred to an Arbitrator. Learned Court below failed to appreciate such proposition of law since there is an arbitration clause in the agreement for tenancy, the Court below should have referred the dispute to an Arbitrator for settlement. He further submits that defendant is occupying two different tenancies arose from two different contracts and clubbing together two different tenancies in a single suit is not legally permissible and hit by misjoinder of cause of action. He further submits that the notices given under Section 80 of the Code of Civil Procedure and Section 106 of the Transfer of Property Act are defective and invalid for which also the suit is not maintainable.

4. Mr. Shuvasish Sengupta, learned counsel appearing on behalf of the opposite party submits that in the matter of ejectment of the same tenant jointly from two or more tenaments in one suit by the landlord is legally permissible and the same cannot be dismissed for misjoinder of causes of action. In this connection, he relied upon the judgment of this Court delivered in CO 818 of 2013 (M/s. Klar Sehen (P) Ltd. v. Runtu Dutta). He further submits that even if there is any arbitration clause, the defendant as on this date has not made any prayer for referring the matter before the Arbitrator and furthermore he contended that the question of legality and validity of the notice under Section 80 of Code of Civil Procedure or under Section 106 of the Transfer of Property Act is always a mixed question of law and fact which can only be determined at the time of final hearing of the suit and the suit cannot be dismissed at its threshold merely on those grounds.

5. I have heard learned counsel for both sides at length and also perused the materials on record. It appears that the defendant/plaintiff had made the aforesaid prayer contending that the suit is not maintainable without mentioning any specific provision of law. Be that as it may, his contention is based mainly on three grounds. Firstly that the plaintiff has clubbed two separate causes of action in respect of two different tenements which is not permissible. Secondly, the Court below has overlooked that there is an arbitration clause in the tenancy agreement and without referring the dispute before the Arbitrator, he has rejected defendant’s petition for maintainability and thirdly, notice under Section 80 of Code of Civil Procedure or under Section 106 of the Transfer of Property Act is defective.

6. It is admitted that in the agreement between the parties, there is an arbitration clause. It further appears that neither party as on this date has prayed for referring the matter before the Arbitrator, on the cont