JUDGMENT :

Sabyasachi Bhattacharyya, J.:

1. As per previous direction, the appeal itself is taken up for hearing along with the application.

2. The present appeal has been preferred by the plaintiff in a suit for specific performance of contract.

3. By the impugned judgment and decree, the learned trial Judge, simultaneously allowed an application of the respondent/defendant under Section 8 of the Arbitration and Conciliation Act, 1996 (in short “1996 Act”) and dismissed the suit itself.

4. Learned counsel for the appellant argues that even Section 8 of the 1996 Act does not contemplate a dismissal of the suit, but merely speaks about reference to arbitration.

5. That apart, the defendant/respondent did not take out any application under Section 8 of the 1996 Act either simultaneously with or prior to the filing of the written statement, which was the first statement on the merits of the defence within the contemplation of Section 8 of the 1996 Act.

6. Hence, in any event, the application under Section 8 of the 1996 Act filed subsequent to the filing of the written statement in the trial Court ought to have been dismissed by the learned trial Judge.

7. Learned counsel appearing for the def