Mr. Raj Mohan Singh, J.: - Present revision petition has been filed by the petitioner against the order dated 04.08.2016 passed by Civil Judge (Sr. Divn.) Ludhiana whereby prayer of the petitioner/defendant for trying the issue No.3 relating to arbitration clause as preliminary issue was declined.

2. Issue No.3 was to the following effect:- “Whether the present suit is liable to be dismissed as premature in the view of Arbitration Agreement? OPD”.

3. Admittedly, there was an agreement having arbitration clause. Brief facts are that a suit for mandatory injunction was filed by the plaintiff directing the defendant to complete the pending jobs as per non-compliance report dated 19.08.2013 and to replace the substandard material supplied by the defendant instead of material agreed in the Purchase Orders. Suit for recovery of damages in the context of non-compliance by the defendant was also sought. Evidently, none of the parties has resorted to Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter to be referred as ‘the Act’).

4. Defendant/petitioner while filing written statement has taken the objection with regard to the suit being premature on the ground of non-invoking of arbitration clause.

5. Issues were framed by the trial Court. At that stage, defendant filed application under Order 14 Rule 2 CPC for treating the issue No.3 to be a preliminary issue. The case was fixed for plaintiff’s evidence for 18.12.2015, when the application was filed before the trial Court. The trial Court dismissed the application vide order dated 04.08.2016. That is how the present revision petition has been filed before this Court.

6. Learned counsel for the petitioner vehemently contended that once the objection was taken in the written statement, it was obligatory upon the Court to refer the dispute to the Arbitrator. By referring to the ratio laid down in Hindustan Petroleum Corpn. Ltd. vs. M/s Pinkcity Midway Petroleums, 2003(3) RCR (Civil) 686 contended that once the agreement and arbitration clause were admitted between the parties, then in view of mandatory language used in Section 8 of the Act, the Court was bound to refer the dispute to the Arbitrator. The applicability and non-applicability of the arbitration clause was to be raised before the Arbitrator and it was to be decided by the Arbitrator only. The Arbitrator has the jurisdiction to adjudicate and decide upon his own jurisdiction, validity and existence of arbitration agreement and the arbitrability of the subject matter.

7. Learned counsel also referred to Sharad P. Jagtiani vs. Edelweiss Securities Ltd., 2015(2) R.A.J. 165 and submitted that Section 8 of the Act does not specify the manner in which the party has to submit its first statement on the substance of the dispute. Normally the first statement of the substance of the dispute by the defendant would be the written statement. If the written statement was filed and it was brought to the notice of the Court that there was an arbitration agreement in existence between the parties which covers the subject matter of the suit, then the Court was under obligation to refer the parties to the arbitration.

8. Learned counsel for the respondent by relying upon Ombir @ Om bir vs. Smt. Richa Sharma and another, 2016 (2) PLR 717; Vijay Kumar Sondhi vs. The Zira Cooperative Sugar Mills Ltd., Zira, [2012(5) Law Herald (P&H) 773 : 2012(2) Land L.R. 343 (P&H)] : 2012(13) R.C.R. (Civil) 173 and V.K. Mantrao & sons and others vs. M/s Select Global Hotel Pvt. Ltd., and others, 2016(2) PLR 257 contended that the framing of preliminary issue in terms of Order 14 Rule 2 CPC can only be framed for expeditious disposal of the case. The parties cannot be allowed to lead evidence. If the issue requires leading of evidence, then such an issue cannot be allowed to be framed as a preliminary issue. Such an issue has to be decided along with other issues on the basis of evidence to be led by the parties.

9. Learned counsel also pointed