CM(M) No.479/2025 Item No. 139 Suppl List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Pronounced on:07.11.2025 Uploaded on: 08.11.2025 CM(M) No.479/2025 CM No.7228/2025 M/S AMANDEEP BR MEDICITY LTD. …Petitioner(s) Through: Mr. Pranav Kohli, Sr. Advocate, with M/s: Imtiyaz Ahmad Bhat & Mr. Farhan Mirza, Advocates Vs. BASHIR AHMAD DAR & ANR. …Respondent(s) Through: Mr. Mian Tufail, Advocate CORAM:HON’BLE MR. JUSTICE SANJAY DHAR,JUDGE JUDGMENT(ORAL) 1. The petitioner through the medium of present petition has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution assailing order dated 31.10.2025 passed by the learned 1st Additional District Judge, Srinagar, whereby the petitioner has been directed to cover the board of “Ujala Hospital” with a veil, which has been displayed on the roof of the suit premises. 2. Issue notice to the respondent. 3. Mr. Mian Tufail, Advocate, enters appearance and accepts notice on behalf of the respondents. CM(M) No.479/2025 4. Heard and considered. 5. It appears that the respondents (hereinafter referred to as “the plaintiffs”) have filed a suit for permanent and mandatory injunction along with declaration against the petitioner (hereinafter referred to as “the defendant”) before the Court of learned 1st Additional District Judge, Srinagar (hereinafter referred to as “the trial court”). In the said suit, it has been pleaded that the plaintiffs, being owners of the suit premises, have entered into a lease agreement with the defendant on 1st February, 2024, for a period of ten years for the purpose of operating a multi-specialty hospital under the name and style of “AMANDEEP BR MEDICITY” on a monthly rent of Rs.22.00 lacs. According to the plaintiff, the said lease deed contains several express covenants which provide that the lessee shall utilize the premises exclusively for running its own hospital under its corporate name and that no sub-letting, assignment or transfer of rights shall be effected without consent of the lessors. 6. It has been further pleaded by the plaintiffs that in disregard of the aforesaid covenants, the defendant has commenced unauthorized construction activities within the demised premises including erection of a large signboard bearing the name “Ujala Hospital” thereby attempting to re- CM(M) No.479/2025 brand and merge the existing hospital with another entity without consent or knowledge of the plaintiffs. 7. On the basis of aforesaid pleadings, the plaintiffs have prayed for a decree of permanent prohibitory injunction for restraining the defendant from erecting or displaying any signage board under any name other than AMANDEEP BR MEDICITY and from changing or merging the hospital name with any other third-party entity including any other hospital and from undertaking any unauthorized construction, modification or alteration in the demised premises. A decree of mandatory injunction directing the defendant to remove the unauthorized signage canopy, construction, has also been sought. Besides this, a decree of declaration declaring the acts undertaken by the defendant in contravention of the covenants of the lease deed, has also been sought. 8. It appears that summons of the suit was issued to the defendant, who was on caveat, pursuant whereto, the defendant appeared before the trial court and filed an application under Section 8 of the Arbitration and Conciliation Act (for shot “the Act”), seeking reference of dispute to the Arbitration. In the application, it was pleaded by the defendant that lease deed dated 1st February, 2024, contains an arbitration clause, as such, CM(M) No.479/2025 jurisdiction of the civil court is barred and the matter is required to be referred to the Arbitration. 9. The learned trial court, vide the impugned order dated 31.10.2025, while calling upon the plaintiffs to file objections to the aforesaid application, proceeded to pass the interim order directing the defendant to cover the hoarding of “Ujala Hospital” with a veil. 10. The petitioner has challenged the impugned order on the grounds that the dispute involved in the suit is eligible to be referred to arbitration in terms of the lease agreement dated 1st February, 2024, as such, the learned trial court did not have jurisdiction to pass any interim direction without deciding the application of the defendant. It has been contended that as per the terms of the lease agreement, the defendant had the right to enter into a sub- lease agreement of the leased property with any other corporate or non-corporate entity and it had also right to enter into partnership with any other third party, though the leased property was not to be treated as partnership assets. It has also been contended that as per the covenants of the lease deed, the defendant had the right to construct a signage platform on the rooftop or any other suitable place for display. In the face of these covenants, it has been claimed that even on merits, the impugned interim order CM(M) No.479/2025 could not have been passed against the defendant/ petitioner. 11. Learned counsel for the respondents, on the other hand, has contended that merely by filing an application under Section 8 of the Act, the civil court does not lose its jurisdiction to pass an interim order. In this regard, reliance has been placed upon the judgment of the Guwahati High Court in the case of Calcom Cement India Limited v. Binod Kumar Bawri, 2017 SCC OnLine, Gau. 118. 12. The question that arise for determination in this case is as to whether, in the facts and circumstances of the case, it was open to the learned trial court to pass the impugned interim order while application of the defendant under Section 8 of the Act was pending before it. Before proceeding further, it would be appropriate to notice the provisions contained in Section 8 of the Act, which read as under: 8. Power to refer parties to arbitration where there is an arbitration agreement: (1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists. CM(M) No.479/2025 (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof: Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub- section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. 13. From a perusal of the aforesaid provision, it is clear that before a court would exercise its power under the said provision, the following conditions must be satisfied: (1) There must be an arbitration agreement; (2) One of the parties to the agreement must bring an action in court against the other; (3) The subject matter of the suit must be the same as the subject matter of the arbitration agreement; (4) The other party must move the court for referring the parties to arbitration before submitting its first statement on the substance of the dispute. (Refer P. Anand Gajapathi Raju v. P. V. G. Raju, (2000) 4 SCC 539) 14. Thus, once an application under Section 8 of the Act is filed by the defendant before a civil court, it is expected CM(M) No.479/2025 to examine the material with a view to satisfy itself as to whether the aforesaid four conditions are satisfied and if these conditions are satisfied, the dispute is required to be referred to arbitration. Once a civil court comes to the conclusion that it has no jurisdiction to entertain a suit after an application under Section 8 of the Act is made for arbitration, the only option available with the civil court would be to refer the dispute to arbitration. Refusal to do so would amount to failure of justice. (Refer Hema Khattar v. Shiv Khera, (2017) 7 SCC 716). 15. In the present case, the learned trial court is yet to examine the issue as to whether the dispute which is subject matter of the suit is eligible to be referred to arbitration and in this regard objections have been invited by the trial court from the plaintiffs. The issue that arises for determination is as to whether the trial court, in the facts and circumstances of the case, could have passed the impugned interim direction before deciding the application under Section 8 of the Act. 16. In the above context, it has to be noted that once an application in due compliance of Section 8 of the Act is filed, the approach of the civil court should be not to see whether the court has jurisdiction. It should be to see whether its jurisdiction has been ousted. The Supreme Court has, in CM(M) No.479/2025 the case of M/S Sundaram Finance Limited and another vs. T. Thankam, (2015) 14 SCC 444, while explaining this position, observed that there is a lot of difference between the two approaches. The Supreme Court held that once it is brought to the notice of the court that its jurisdiction has been taken away in terms of the procedure prescribed under a special statute, the civil court should first see whether there is ouster of jurisdiction in terms or compliance of the procedure under the special statute as the general law should yield to the special law – generalia specialibus non derogant. The Court went on to hold that the approach should not be to see whether there is still jurisdiction in the civil court under the general law. 17. With the aforesaid legal position in mind, let us now test the merits of the impugned order passed by the learned trial court. The trial court has observed that till objections are filed by the plaintiffs and application under Section 8 of the Act is decided, it retains the limited power to pass interim measures to preserve the subject matter of the dispute. It has been further observed that upon consideration of submissions and pleadings of the parties including the photographs placed on file, it appears that signage board/hoarding has been displayed during the intervening night after receipt of notice of this court by the CM(M) No.479/2025 defendant. It is in these circumstances that the trial court has passed the interim direction asking the defendant to cover the board of “Ujala Hospital” with a veil. 18. As already stated, once an application under Section 8 of the Act is filed before a court seeking reference of dispute to the arbitration, before passing an interim order, the court has to at least frame a prima facie opinion as to whether there is ouster of jurisdiction in terms or compliance of the procedure under Section 8 of the Act. The learned trial court has, without discussing this aspect of the matter and without recording a prima facie opinion about its jurisdiction to pass an interim order, proceeded to pass a direction upon the defendant to cover the hoarding. 19. So far as the judgment of Guwahati High Court Calcom Cement India Limited’s case (supra), which has been relied upon by learned counsel for the respondents/plaintiffs, is concerned, in the said case, the Company Law Board had passed an interim direction during the pendency of the application under Section 8 of the Act but it was specifically observed by the High Court while testing legality of such direction that the Company Law Board had passed the said order after recording the reasons for issuing the said order despite the pendency of Section 8 application. CM(M) No.479/2025 20. In the present case, the learned trial court has not recorded any reasons for passing the impugned interim order nor has it recorded any tentative opinion as regards the ouster of its jurisdiction. The impugned order passed by the learned trial court, on this ground alone, is liable to be set aside. 21. Apart from the above, there was no urgency involved in the case that would have persuaded the learned trial court to pass an interim order without applying its mind to the merits of the application under Section 8 of the Act filed by the defendant. The defendant had only erected a signage board. Even if the trial court would have found that the dispute between the parties is not arbitrable and the plaintiffs were entitled to grant of interim relief, a direction could have been passed by the learned trial court to the defendant to remove the signage board. It was not a case where the previous position obtaining on the date of filing of the suit could not have been restored by the trial court. Thus, the passing of an interim order could have certainly awaited the decision in Section 8 application. 22. For the foregoing reasons, the impugned order appears to have been passed by the learned trial court in erroneous exercise of its jurisdiction which has resulted in failure of justice. The same, as such, is not sustainable in CM(M) No.479/2025 law and is, accordingly, set aside. The learned trial court shall proceed to decide the application under Section 8 of the Arbitration and Conciliation Act filed by the defendant on its merits before passing any further interim order in the case. 23. A copy of this order be sent to the learned trial court for information and compliance. 24. The petition stands disposed of in the above terms along with connected CM(s). (Sanjay Dhar) Judge Srinagar 07.11.2025 “Bhat Altaf-Secy” Whether the order is speaking: Yes/No