The main legal point established in the judgment is that the dismissal of the suit was an erroneous application of words, and the review jurisdiction was exercised incorrectly. The court observed that the suit was not dismissed but the parties were referred to arbitration, and therefore, the order was to be treated as passed under sections 5 and 8 of the Arbitration and Conciliation Act, 1996.

1. Heard Mr. J. Roy, learned counsel appearing for the petitioner as well as Mr. H. Maurya, learned counsel appearing for the respondent.

2. This is an appeal under Order XLIII Rule 1(w) read with section 104 CPC. The appeal is directed against the order dated 29.11.2008 passed by the learned Civil Judge No.3, Kamrup (M), Guwahati in Misc. (J) Case No.195/08, thereby allowing the application for review preferred by the respondent against the judgment and order dated 25.07.2008 passed by the said learned Court in Misc.(J) Case No.105/08 arising out of T.S. No.03/2008. By the order dated 25.07.2008, the learned Court below had allowed the application filed by the appellant under section 5 and 8 of the Arbitration and Conciliation Act, read with sections 9 and 151 CPC and the parties were referred to arbitration. Incidentally, while referring the parties to arbitration, the learned Court below had passed an order to the effect that the suit is dismissed.

3. The facts in brief are that the respondent No.1 herein had filed a suit being T.S. No.3/2008. The said suit was filed before the Court of learned Civil Judge No.3, Guwahati for disposal. In the plaint, the respondent No.1 had made the following prayers:

“(a) Declaration to the effect that the schedule vehicle sold by the defendants to the plaintiff has an inherent manufacturing and incurable defect and hence the plaintiff is entitled to replacement of the vehicle with a defect free new vehicle of the same make and kind under the same loan cum hypothecation agreement subject to necessary corrections and settlement of accounts and to be made effective from the date of replacement of the vehicle by duly adjusting the payments already made by the plaintiff.

(b) Declaration to the effect that the loan cum hypothecation agreement and the installment chart sent by the defendant No.2 are contradictory to each other and are unenforceable, illegal and malafide and of no effect in their present form.

(c) Rendition of Accounts by the defendants & Settlement of the same with correct statements and figures by correcting the amounts of down payment, interest period, interest amounts, and thereby resettling the installments after correct calculation.

(d) Waiver of overdue, late interest, penal interest etc. if any, as the default in payment of installments, if any, is due to the inherent manufacturing defect of the vehicle rendering the vehicle unfit for operation as mentioned above and for reimbursement of overdue, penal interest, late interest, if any, already collected by the defendants.

(e) Reimbursement of the sum of Rs.85,997/- (Rs. Eighty five thousand Nine hundred Ninety seven) only, which is unnecessarily incurred by plaintiff as stated above with interest @ 12% p.a. with effect from institution of this suit till realization.

(f) Full costs of the suit.

(g) any other relief/ reliefs to which the plaintiff may be found entitled to under the law/ equity.”

4. The case projected by the respondent No.1 was that the vehicle manufactured by the respondent/appellant herein was a defective vehicle and it is in the said context that the aforesaid prayer was made in the plaint. It is further seen that for the purpose of getting finance for purchasing the vehicle, the respondent No.1 entered into a loan cum hypothecation agreement dated 21.09.2005, inter-alia, containing arbitration clause. In view of the existence of the arbitration clause the appellant filed an application under section 5 and 8 of the Arbitration and Conciliation Act, 1996 read with sections 9 and 151 CPC for referring the parties for arbitration. As indicated above, the said application was allowed and while referring the matter to arbitration, the suit was dismissed. Aggrieved by the dismissal of the suit and based on the said order dated 25.07.2008, the respondent No.1 preferred an application for review under section 114 read with Order XLVII Rule 3 CPC. The learned trial Court upon hearing the learned counsel for both sid