J. K. MAHESHWARI, J.

This order shall also govern disposal of Civil Revision No. 136 of 2008.

Both the revisions are filed under Section 115 of the Code of Civil Procedure, 1908 assailing the orders passed by the learned XI Civil Judge, Class 1, Indore rejecting the application under Section 8 of the Arbitration and Conciliation Act, 1996 read with Order VII Rule 11 of Civil Procedure Code, filed by the applicant.

The facts which are not in dispute that petitioner, a multimedia system operator, has entered into an agreement with non-petitioner on 01.06.2006, whereby the cable lines belonging to them had been taken by non-petitioner for operation for the period of three years with effect from 01.04.2006 as per the terms and conditions specified in the agreement. Clause 14 of the said agreement provides for arbitration to a dispute, if any, arises between the parties, which may be decided in accordance with the provisions of the Arbitration and Conciliation Act, 1996 or by the arbitrators Mahi Pal Ji and Manish Dixit Ji, and their decision shall be agreeable to the both parties.

On arising some disputes of title, petitioner had filed a suit on 04.02.2008 for declaration and permanent injunction, wherein the relief for temporary injunction was refused by the trial court and the appeal against the said order was also dismissed. However, the plaintiff has moved an application under Order 23 Rule 1 of Civil Procedure Code for withdrawal of the suit on 31.03.2008, but on the same date non-petitioner/defendant has filed the counter-claim against plaintiff; the trial court has passed the order and permitted to withdraw the suit filed by plaintiff - petitioner, however, the counter-claim filed by defendant/non-petitioner remains pending. On the next date, i.e. 09.04.2008 petitioner has moved an application under Section 8 of the Arbitration and Conciliation Act, 1996 read with Order VII Rule 11 of the Civil Procedure Code, inter alia contended that as per Clause 14 of the agreement, the counter-claim cannot be continued and the parties may be directed to refer under the Arbitration and Conciliation Act, 1996 for settlement of their disputes. The reply to the said application was filed on 22.04.2008 stating that because the petitioner had withdrawn his suit remaining unsuccessful in getting injunction even on having the knowledge of the arbitration clause, however, on behest of petitioner such an application is not entertainable. It is further stated that once the plaintiff has filed his statement of substance and filed the suit, on objecting by defendant, the injunction was refused, ex consequentia the said suit was withdrawn by them. Now while trying counter-claim of defendant, application under Section 8 of the new Act, to refer the parties for arbitration, is not entertainable, because it is amounting to approbate and reprobate the relief, which is not permissible, and the plaintiff is now estopped to take such plea.

By passing the order impugned on 05.05.2008, learned trial court has rejected the application of petitioner filed under Section 8 of the Arbitration and Conciliation Act, 1996 and recorded the finding that he has waived his right to raise the objection to refer the parties to resolve the dispute as per arbitration clause specified in arbitration agreement. It is further held that because his application for temporary injunction was rejected by the trial court in his suit, however, on withdrawal of the said suit and on entertaining the counter-claim such objection is not entertainable.

Shri B. L. Pavecha, learned senior counsel, has argued that the compliance of Section 8 is peremptory to a judicial authority before whom action is brought to challenge, in a case, if it is the subject-matter of the arbitration agreement. It is further argued by him that the counter-claim was filed by the non-applicant on 31.03.2008, i.e. the date of withdrawal of the suit and the said counter-claim is required to be tried as suit.