Existence of a dispute is a condition precedent for referring a matter to the arbitrator, and a party's actions indicating an intention to adjudicate the matter in court can disentitle them from arbitration.

1. The challenge in this revision is to the order whereby the matter has been referred to the Arbitrator as per order dated 18/11/2000 passed by the learned Additional Civil Judge (Senior division) Kharar.

2. The factual matrix of the case is that Mukta Sharma plaintiff-petitioner (hereinafter referred to as "the plaintiff) filed the suit for possession after ejectment of the defendants -respondents (hereinafter referred to as the defendants) from the tenanted premises and for recovery of Rs. 25,000.00 per month for the ground floor and Rs. 10,000.00 for the basement, in all Rs. 35,000.00 for the illegal use and occupation of premises from July, 1998 till delivery of possession thereof. Interest at the rate of 12 per cent per annum has also been claimed on the amount.

3. The facts not disputed are that the defendants were inducted as tenants in the demised premises and an agreement to this effect was executed on 9-12-1989. Initially, it was given on rent at the rate of Rs. 7475- per month with an escalting clause of enhancement of rent at the rate of 15% after every five years. One of the clauses of the agreement deed related to referring the disputes to the sole arbitrator and that the award given by the arbitrator will be final and binding upon the parties.

4. During the pendency of the suit, an application was filed for referring the matter to the arbitrator, which has been allowed by the trial Court vide the impugned order. But according to the plaintiff, the defendants had taken part in the proceedings. they had been getting adjournments for filing the written statement, therefore, the matter could not be referred to the arbitrator. Secondly, there does not exist any dispute referrable to the arbitrator.

5. I have heard Shri Arun Bansal, learned counsel for the plaintiffs and Shri S. C. Bansal, Senior Advocate, learned counsel for the defendants.

6. The agreement was executed between the parties on 9/12/1989. Copy of the agreement is Annexure P-6 with this petition. The relevant clauses which are important for the purpose of decision of this revision are clauses 6, 7 and 8, which are reproduced hereunder :-

"6. That this agreement will continue for a period of five years from the date of this agreement and during this period of five years the Second Party will not interfere and cause any hindrance or obstruction in the peaceful enjoyment of the said shop.

7 That after five years, this agreement can be renewed on the same terms and conditions except the rate of rent which may be enhanced by 15% and the First Party will have option to renew this agreement for further period of five years and Second Party will be entitled enhanced rent.

8. That the Second Party shall be liable to pay all property taxes such as House Tax and Water Tax etc. to the local authority and the electricity charges shall be paid by the first Party directly to the electricity authority."

7. Mr. Bansal, learned counsel for the plaintiff at the very outset, contended that as per clause 6, the agreement was for a period of five years and after five years this agreement could be renewed on the same terms and conditions as covered under clause 7. Thus, where the period of five years expired and the agreement was not renewed, therefore, the question of referring the matter to the Arbitrator in terms of the earlier agreement did not arise.

8. As far as the renewal part of the agreement is concerned, I am of the view that the plaintiff cannot be allowed to blow hot and cold in the same breath because after the expiry of five years term, as per clause 7, the agreement could be renewed on the same terms and conditions except the rate of rent which may be enhanced by 15 percent. Initially, the rate of rent was 6,500/- per month. Now, the plaintiff is claiming rent at the rate of Rs. 7475.00 witheffect from 1-10-1984. This fact is clearly borne out from the legal notice Annexure P-7. Para No. 1 of the legal notice Annexre P-7 is as follows :-

"1. that the