ORDER
1. This is a tenant's writ petition challenging the judgment and order dated 1-11-1994 of the respondent No. 1; VIth Additional District Judge Muzaffarnagar decreeing the suit filed by the respondent No. 4 lor ejectment of the petitioner and award dated 10-7-1991 of the arbitrator upon which the said decree is based.
2. This writ petition has been heard for final disposal at admission stage in view of the statement of the learned counsel for contesting respondent No. 4 to the effect that he does not propose to file any counter affidavit in view of the material placed on record.
3. The rt-spodent No. 4 had filed ejectment suit before the J.S.C.C. Muzaffarnagar on the ground of structural alterations likely to diminish the value of the shop in question and to disfigure it, and also on the ground of having sublet a portion of the said shop as well as having used it for a purpose other than for which he was admitted to the tenancy. The suit was contested and the allegations were denied by the petitioner.
4. The J.S.C.C. by his judgment and order dated 30-10-1987 negatived the contentions of the respondent and dismissed the suit. A revision under Section 25 Provincial Small Cause Courts Act was preferred by the respondent. Another proceeding under Section 21 of 1972 for release on the ground of alleged personal need of the landlord was also pending between the parties.
5. It appears that the parties moved an application before the J.S.C.C. to refer their dispute to sole arbitrator Kanwar Sen Jain, Advocate. The reference was accordingly made on 11-4-1991. The arbitrator submitted his award dt. 10-7-1991 Annexure 16 allowing the prayer of the respondent landlord for ejectment, arrears of rent and damages, on the ground of subletting. After inviting objections and hearing the parties thereon, the learned revisional Court found no ground to set aside the award and confirming the same passed the impugned decree in terms thereof.
6. On behalf of the petitioner, the impugned judgment passed on the award is assailed on the ground of non-applicability of the provisions of Arbitration Act to Small Cause Suits. Reference in this connection is made to Section 40 of Arbitration Act. The said section runs as follows :--
"A Small Cause Court shall have no jurisdiction over any arbitration proceeding or over any application arising therefrom save on application made under Section 21."
It is clear therefore that the jurisdiction of Small Cause Court is not barred over any arbitration proceedings or any application arising on the application made under Section 21 of the Arbitration Act. In the mstant case the arbitration proceedings arose out of an application moved under Section 21 before the Revisional Court or reference to an arbitrator. The bar in Section 40 therefore, was not attracted. For the same reason the petitioner does not derive any support from the decision rendered in Ishwari Balani v. Mahesh Chand Nandwani reported in 1982 Alld. Civil Journal 89 and the principles laid down in Natraj Studioes (P) Ltd. v. Navrang Studioes reported in AIR 1981 SC 537.
7. It was next contended on behalf of the petitioner that the reference in this case having been made by revisional Court, and not the Court of Small Cause, the same was incompetent and the award and the decree based thereon is without jurisdiction. This contention however, looses sight of the fact that a revision is continuation of the proceedings in the suit and as such the powers available to the J.S.C.C. in the matter of suit before it under Section 21 of the Arbitration Act cannot be said to be not available to the Court hearing revisions under Section 25 of the Provincial Small Cause Courts Act.
8. The plea that the Court of Small Cause hearing the ejectment suit being a Court of exclusive jurisdiction reference could not be made at the instance of parties to abitration is also not tenable in view of the legal position that in the matter of trial of suits between the landlord and the tenant is also not tenable in view of the legal position that the Court of Small Cause in such a matter is a Court of preferential jurisdiction and not exclusive jurisdiction, as laid down in a full bench decision of this Court in Manjoorul Haq v. Hakim Mohsin Ali reported in 1970 ALJ 670 : (AIR 1970 All 604) and another decision rendered by Hob'ble Mr. Justice R. R. K. Trivedi in Rama Kant Gupta v. Ramashwar Das reported in 1992 (2) ARC 10.
9. The reference also could not be held invalid on account of the fact that the arbitrator by means of the same was given wider powers that the revisional Court itself to go into the question of fact. The arbitrator being a forum chosen by the parties and the dispute in its entirety having been referred to him there can be no bar to the arbitrator going into the questions of fact.
10. Lastly the award and the decree passed thereon is sought to be assailed on the ground of misconduct. The contention is that the arbitrator apart from evidence relied also on his own personal knowledge, to come to a conclusion about subletting of a portion of the shop in question by the petitioner to his father-in-law Ram Gopal. There is, however, nothing in the award to support this contention. The conclusions were arrived at and the award rendered by the arbitrator on the basis of the evidence and his own enquiry and the answer to his queries by the parties. By no stretch of interpretation the same could be construed as basing the award on this personal knowledge.
11. The authorities cited in this regard by the petitioner Jajodia (Overseas) Pvt. Ltd. v. Industrial Development Corporation of Orissa Ltd. 1993 (2) ARC (SC) 186 also does not help, in so far as it lays down that the award has to be read as a whole and harmoniously. The grounds upon which an award can be set aside are limited. The Court should be very circumspect about setting aside an award reached by an arbitrator for parties have agreed that the dispute that may arise or have arisen between them should be resolved not by a Court of law but by arbitration. In the instant case, as already said above, the award has been given by the arbitrator on a cumulative consideration of the parties versions, evidence and circumstances and no misconduct is involved.
12. In view of the above stated facts and conclusions, therefore, the petitioner has not succeeded in making out any case for interference with the impugned award of the arbitrator and the decree based thereon.
13. The writ petition being devoid of merit is accordingly dismissed. There is no order as to costs.
14. Petition dismissed.