1982CLC1039 (PLP)

3. It is the case of the plaintiff that the Defendant No. 1 in violation of the above contract closed lift on the first floor and started raising construc tion of shop on the open space and on the waiting lobby of the first floor and has thus deprived the plaintiff and other shopkeepers of first floor the use of lift and waiting lobby and thus the Defendant No. 1 committed breach of contract between the parties. According to the plaintiff the above construc tion is in contravention of the approved plan of the building on common property and will cause great inconvenience to plaintiff and other shop keepers and customers and will be nuisance, trespass and would obstruct free passage of light and air to the plaintiffs' shop and other shops. Relying on the aforementioned pleas, and making the grievance that in spite of repeated requests, Defendant No. 1 are continuing with their unauthorised constructions, the plaintiff brought the suit claiming the following reliefs:‑ "(a) For mandatory injunction directing the Defendants to pull down or remove the construction made on the open space and on waiting lobby of first floor and open the lift for the use of first floor of Textile Plaza, M. A. Jinnah Road, Karachi. (b) For permanent injunction restraining the Defendant No. 1, its servants, agents and contractors from raising construction on the waiting lobby of first floor and from closing the lift for first floor of the above building."

4. On receipt of summons, the Defendant No. 1 without taking any steps in the suit, filed an application under section 34 of the Arbitration Act, praying therein to stay the above suit on the ground that the agreement referred/relied upon by the plaintiff contains an arbitration agreement for reference of disputes between the parties to arbitrator, and that the subject matter of the suit is liable to be settled by the forum in accordance with the agreement between the parties i. e. through arbitration as provided in Clause No. 7 of agreement, dated 17‑3‑1980.

5. The plaintiff filed counter affidavit and, contended that the suit is not liable to be stayed on the following grounds: (i) That the arbitration agreement is, vague, uncertain,, unenforcible and illegal. (ii) That the subject‑matter of the suit in any case is not covered by the arbitration clause. 6. 1 have heard the learned counsel for the parties, and find that the arbitration clause is neither vague nor suffers from any of the defects urged by the learned counsel for the plaintiff. The arbitration Clause No. 7, contained in the agreement of sale has been reproduced in para. 2 above whereby both the parties have agreed that "all disputes and differences" arising between the Vendor/ Defendant No. 1 and the vendee/plaintiff shall be referred to arbitration of an independent person to be nominated in the manner provided therein. The arbitration clauses containing the phrases such as "all disputes and differences" arising between the parties have been construed to have wide meaning (see Russel on Arbitration, 9th Edition at pages 92 to 97). The learned author on the construction and scope of submission and arbitration agreement at page 96 commented as follows:‑ "The phrase "all disputes" or "all claims" by itself is possibly wider than "all disputes arising out of the contract". The phrase in an arbitration clause of a contract", "all disputes arising between the parties", has been held to mean "disputes arising under this agreement", rather than "disputes arising in relation to the subject -matter of the agreement." Thus the first objection raised on behalf of the plaintiff fails.

7. As regards the second objection, it has already been seen that the disputes and differences enumerated in the present suit/which according to the plaintiff as pleaded in para. 5 of the plaint, have arisen due to construction which the Defendant No. 1 are carrying out illegally, unauthorisedly and in contravention of approved plan of building, are no doubt fully covered by Clause No. 7 which provides for reference to arbitration, as submitted by the learned counsel for Defendant No.

1. In order to appreciate the above plea of the Defendant No. 1 reference may also be made to clause 12 of the agreement which has also been reproduced above. The aforementioned clause 12 inter alia provides for the rights of easement and passages etc. which the Vendee and Vendor shall enjoy, and it is further covenanted therein:‑ " . . . . . . Similarly the Vendor hereby grant, to the Vendee all such rights enumerated above and all other rights of easement to which the Vendee or his heirs or successors‑in‑title may otherwise be entitled to." The subject‑matter of the suit thus clearly relates to and arises out of the agreement of sale and is covered by arbitration clause, which itself is a matter of agreement. In the circumstances the parties are bound by the arbitration clause and to get their disputes adjudicated by the forum agreed upon which is a consideration for entering into the agreement under which the plaintiff has agreed to purchase and the Defendant No. 1 has agreed to sell the shop in question. In such circumstances the disputes must be referred to the arbitration unless there are special reasons to the contrary. As no reasons have been made out to refuse to stay the suit and for reference of the disputes to arbitration, and finding that the Defendant No. 1 have always been and even now are willing to do all the things necessary to proper conduct of the arbitration, the application made under section 34 of the Arbitration Act filed by the Defendant No. 1 is allowed and the suit consequently is ordered to be stayed. The application accordingly stands disposed. K. M. A. Appeal allowed.