S.C. Pandey, J.

This revision u/s 115 of the CPC is directed against the order dated 7-2-1996 passed by the Fifth Additional District Judge, Bhopal in M.J.C. No. 27/95. The disposal of this revision shall govern the disposal of Civil Revision No. 857/96 as similar questions of facts and law arise in that revision too.

The non-applicant, a partnership firm, carries on the business of construction. It entered into an agreement dated 5-8-1991 with the applicant No. 1 whereby it was awarded the contract of constructing 112 A', 8 B' and 12 C' type of quarters at Hoshangabad within a period of six months from the date of the receipt of the work order with an additional period of 10 days as grace period, for the amount of Rs. 27,74,467/- after completion of the task under the contract the non-applicant was paid Rs. 22,00,178/- towards the final bill on 25-6-1994 which was received by it under protest.

Thereafter, the non-applicant raised a dispute regarding the item wise payment and claimed that it has been paid short to the time of Rs. 5,33,619/-. The agreement dated 5-8-1991 had an arbitration clause numbered as 25. It provided, inter alia, that in case of difference or dispute between the parties to the agreement, the dispute shall be referred to an arbitrator appointed by the Chief Engineer in charge of the work at the time of dispute or in his absence by the administrative head of the department of the Control Public Work Department (C.P.W.D. for short). No arbitrator was appointed by the Chief Engineer, the Applicant No. 2, despite notices dated 25-1-1995, 9-2-1995, 22-3-995, 15-5-1995 and 16-8-1995. Thereupon the non-applicant filed an application dated 30-6-1995 u/s 8 of the Arbitration Act 1940 (henceforth 'the Act') seeking order from the Court for appointment of an arbitrator.

The applicants in their reply did not question the facts relating to difference between the parties regarding amount to be paid to the non-applicant, but claimed that section 8 of the Act was not attracted. It was further pointed out as per reply dated 6-1-1996 that as provided the arbitration clause No. 25 of the agreement Shri V. Nainani was appointed as the sole arbitrator on 1-8-1995 during the pendency of application u/s 8 (ibid). However, on resignation of V. Nainani, the Applicant No. 2 in exercise of his powers under clause 25 of the agreement, appointed Shri P.K. Kohli as the sole arbitrator by order dated 4th January 1996 and asked him to continue the work of the arbitrator from the stage the previous arbitrator left it at the time resigning the office of the sole arbitrator.

The Court below was of the view that dispute or difference in respect of claims Nos. 2, 8 and 11 was liable to be referred to arbitration. The claims Nos. 1, 9 and 10 were not covered by the arbitration clause. Since there is no challenge on the part of the non-applicant regarding this finding by the non-applicant, it appears that the non-applicant was satisfied by the order of the Court below that only dispute regarding claim Nos. 2, 8 and 11 was liable to be referred to arbitration. However, the applicant challenges the very power of the Court to refer any claim to an arbitrator u/s 8 of the Act. If that be so, the finding of the Court below in respect of all claims is Coram non judice and as such of no consequence. The key to the application of section 8 of the Act has to be found in the interpretation of clause 25 of the agreement dated 5-8-1991 which is being reproduced below as follows:-

Clause 25 of the agreement (Annexure A-1):-

Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality or workmanship or materials used on the work or as to any other questions, claim, right matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, orders or