Prakash Tatia, J.—Heard learned counsel for the parties.

3. The petitioner/defendant is aggrieved by the order dt. 01.12.2005 passed by the Court below dismissing the petitioner’s application under Sec. 8 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act of 1996’).

3. Brief facts of the case are that the plaintiff/respondent filed suit for injunction against the petitioner/defendant. On the first date 01.12.2004, the learned Presiding Officer of the Court was on leave and, therefore, the case was adjourned for filing written statement. On 11.12.2004, time was sought for filing written statement. On 15.12.2004 i.e. on the next date, an application was submitted under Order 7 Rule 11 CPC for rejection of the plaint on the ground that there is an arbitration clause, therefore, the civil Court has no jurisdiction to entertain the suit. With this application, the original arbitration agreement was not submitted by the defendant nor any copy was submitted. On 31.01.2005, copy of arbitration agreement was submitted by the defendant in the trial Court. On 25.02.2005, another application under Sec. 8 of the Act of 1996 was submitted by the petitioner/defendant.

4. The trial Court did not decide the application filed under Order 7 Rule 11 CPC and proceeded to decide the application under Sec. 8 of the Act of 1996. The trial Court vide its impugned order observed that the petitioner did not submit the original or the copy of the arbitration agreement along with the application under Order 7 Rule 11 CPC and, therefore, even if the application under Order 7 Rule 11 CPC is treated as application under Sec. 8 of the Act of 1996, then that was not accompanied with the copy of arbitration agreement. So far as the application filed under Sec. 8 of the Act of 1996 is concerned, that was not filed at the first instance and, therefore, in view of Section 8(1), the matter cannot be referred to the Arbitrator.

5. Learned counsel for the petitioner submitted that in the application filed under Order 7 Rule 11 CPC, the petitioner’s only ground was for referring the matter to the Arbitrator and the contents of the application alone can decide the nature of the application and not the title alone. In view of the above reason, the application was submitted by the petitioner for relief under Sec. 8 of the Act of 1996. It is also submitted that the arbitration agreement is admitted fact and copy of that was placed on the record of the trial Court before decision on the application under Order 7 Rule 11 CPC or the application under Sec. 8 of the Act of 1996. It is also submitted that the trial Court misread Section 8 of the Act of 1996 and proceeded to decide the application on assumption that the petitioner since took time for filing written statement, therefore, has not took the plea under Sec. 8 of the Act of 1996 at the first instance and before submitting his defence. The trial Court proceeded to hold that since the petitioner sought time for filing written statement, therefore, he cannot take benefit of Section 8 of the Act of 1996. In fact, Section 8 of the Act of 1996 is different than Section 34 of the Arbitration Act of 1940.

6. Learned counsel for the respondent vehemently submitted that the petitioner took time for filing written statement and fact of officer on leave is irrelevant. It is also submitted that the application under Order 7 Rule 11 CPC was submitted by taking a defence and, therefore, also, the petitioner’s second application filed under Sec. 8 of the Act of 1996 was not maintainable. It is also submitted that admittedly copy of the agreement was not submitted along with any application. It was filed after the filing of the application under Order 7 Rule 11 CPC and before the filing of the application under Sec. 8 of the Act of 1996, therefore, the trial Court rightly did not refer the matter to the Arbitrator.

7. I considered the submissions of learned counsel for the parties and perused the facts of the case.

8. Section

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