ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.5194 OF PETITION NO.5194 OF PETITION NO.5194 OF 2008 2008 2008 Sou.Shakuntala Vasant Agarwal & Ors. ...Petitioners. Vs. The Five Star Poultry Farm & Ors. ...Respondents. Mr.S.S.Patwardhan for the Petitioners. Mr.Nitesh Bhutekar i/by Mr.Uday Warunjikar for Respondent Nos. 2 and 3. CORAM CORAM CORAM : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. DATED DATED DATED : 17th March, 2009 : 17th March, 2009 : 17th March, 2009 P.C.:- P.C.:- P.C.:- . Heard finally, by consent. 2. By the impugned order, the Ad-hoc District Judge-1, Sangli has allowed the Appeal under Section 37 of the Arbitration and Conciliation Act-1996 (for short, "the Act") which was against an order passed by the Civil Judge, Junior Division, Miraj in Regular Civil Suit No. 303 of 2002 refusing to appoint an Arbitrator in a dispute among the partners of the partnership firm. 3. In the present case, an application for ( 2 ) appointment of Arbitrator, was filed by the plaintiffs themselves, though there was no such objection or application, filed by the Defendants at appropriate time and/ or at any point of time. 4. Whether such application, at the instance of Plaintiffs, is maintainable or not is not the issue, at this stage, I am considering the order dated 11.11.2005 whereby the said application was rejected against that order. The Respondents thereafter preferred an Appeal under Section 37 of the Act. 5. Section 37 of the Act nowhere contemplates such appeal against the rejection of such application under Section 8 of the Act. In absence of this, there was no question of entertaining such appeal under Section 37 of the Act, as done in the present case. It appears that, there was no such objection raised at the relevant time but still without observing anything on the merits of the matter, once it is clear that there was no such provisions and such Appeal is not maintainable, any order passed in such Appeal is without jurisdiction. The remedy is elsewhere. 6. By the impugned order, the learned District ( 3 ) Judge-1, Sangli has allowed the Appeal and set aside the basic order on Exhibit 58 dated 11/11/2005 and directed to appoint an Arbitrator. This in my view, as rightly contended by the learned counsel appearing for the Petitioners, is without jurisdiction in view of above. Therefore, the impugned order dated 11th March, 2008 is quashed and set aside. The order dated 11/11/2005 is restored. However, the Respondents are at liberty to take appropriate steps or file appropriate Petition / Application to challenge the same, if so advice in the above background. 7. Resultantly, the Petition is allowed in terms of prayer clause (a). No order as to costs. (ANOOP (ANOOP (ANOOP V.MOHTA, J.) V.MOHTA, J.) V.MOHTA, J.)