By the Court.—This appeal has arisen out of the order dated 9.10.2007, passed by the learned Civil Judge, (S.D.), Lucknow in Regular Suit No. 117 of 2007, by which the suit had been dismissed for want of prosecution due to arbitration clause by allowing application Paper No. 10-C, moved by the defendant.

2. Brief facts of the case are that the plaintiff-appellant filed suit for recovery of Rs. 8,60,000/- together with 18 per cent pendente lite and future interest on the grounds inter alia that it is a proprietorship concern; the defendant appointed the plaintiff as sole distributor of medicines in the State of Uttar Pradesh and the plaintiff had agreed to purchase medicines from the defendant and order for supply of medicines were filled; there is a custom in the medicine business that if the medicines are not sold by the whole seller then the manufacturer takes back the medicines supplied by it; this is also a custom that if the purchaser informs the manufacturer in advance that the expiry of certain medicines is coming to an end, then the manufacturer takes back those medicines and either replaces the same or refunds its price. It is mentioned in paragraph No. 9 of the plaint that medicines were supplied on different dates of different amounts by defendant to the plaintiff; the defendant also asked the plaintiff to pay certain amount and price of good for the medicines that were supplied; there is dispute regarding payment. Hence, the suit was filed.

3. The defendant appeared and moved application No. 10-C to the effect that the Court has no jurisdiction to try and entertain the present suit as there was an arbitration clause. The defendant also annexed therewith the copy of agreement. The plaintiff filed objections by pleading inter alia that no written statement has been filed and there was no arbitration agreement between the parties dated 10.5.2005. Learned Trial Court allowed the application of the defendant, against which this appeal has been preferred.

4. We have heard learned counsel for the appellant and have gone through the records. None appeared on behalf of the defendant/respondent. Paragraph Nos. 4 and 6 of the plaint are relevant which are reproduced below :

“4. That the defendant appointed the plaintiff as its sole distributor of medicines for whole Uttar Pradesh and approached the plaintiff at Naya Gaon East, P.S. Kaiserbagh, Lucknow to purchase medicines manufactured by it.

6. That on this assurance of the defendant the plaintiff agreed to purchase medicines from the defendant and the order form for the supply of medicines was filled and written by Sri Prashant Kumar Srivastava, Regional Business Manager of the defendant in the presence of Sri Dinesh Gupta, general Manager of the defendant.”

5. The plaintiff-appellant did not file any agreement and has relied upon mischievous pleadings as is evident from paragraph No. 6 of the plaint as reproduced above. The defendant has filed photocopy of the agreement along with application paper No. 10-C, which has not been denied by the plaintiff appellant in his objection paper No. 13-C. He has vaguely alleged that there was no arbitration agreement. It has not been denied in this objection that there was no agreement at all and there is an admission in paragraph No. 6 of the plaint that there was an agreement which was filled and written by Regional Business Manager of the defendant in presence of the General Manager of the defendant. This agreement is basis of the suit which should have been filed along with the suit and if the said agreement was not available with the plaintiff, in original, he should have made a request to the learned Trial Court that the defendant may be directed to produce the original agreement deed, which the plaintiff did not do.

6. It was argued by learned counsel for the plaintiff-appellant that the impugned order is bad in law on the ground that no issue has been framed and the suit should have been dismissed as beyond jurisdiction