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Civil Rule No. 405 of 1963, decided on 10th December 1964.

S. 34‑Expression "before filing a written statement or taking any other steps in the proceedings" -----Application for time to file written statement‑Amounts to taking "steps in proceedings"‑Applicant deemed to have submitted to jurisdiction of civil Court and waived his right to arbitration.

New Bengal Shipping Company v. Eric Lancaster Stump of Singapore P L D 1952 Dacca 22 rel.

M. A. Aleem and Md. Yaqoob Ali for Petitioners.

S. M. Abbas for the Opposite‑Party.

This Rule is directed against the judgment and order passed by the learned Additional District Judge dismissing Miscellaneous Appeal No. 355 of 1962 and confirming the decision of the learned Subordinate Judge refusing to stay further proceedings in Title Suit No. 83 of 1962 filed at the instance of the plaintiff‑opposite‑party for accounts and other reliefs against the petitioners. The said title suit was filed on 1‑6‑1962 and summonses were served upon the defendants on 15‑6‑1962. The defendants entered appearance on 27‑6‑1962, and applied for time. This prayer for time was allowed on 29‑6‑1962. Thereafter, on 9‑7‑1962 the defendants‑petitioners filed an application for stay of further proceedings under section 34 of the Arbitration Act stating that there was an agreement for arbitration as between the parties in the partnership deed on the basis of which the said title suit had been filed. This stay application was heard and rejected on 28‑8‑1962. Thereafter an appeal was preferred by the petitioners and it was registered as Miscellaneous Appeal No. 355 of 1962. This appeal was, however, dismissed on 7th of March 1963 as stated above.

Mr. Aleem appearing in support of the rule contends that the application for time as filed on 27‑6‑1962 was in substance an application for time just for arranging instruction to be given to the lawyer as nothing could be made out from the plaint which was a lengthy one. According to him there was nothing on record to suggest that the defendants submitted to the jurisdiction of the civil Court or that they waived their right of asking for arbitration.

Mr. Abbas, on the other hand, contends that the language of the application as filed on 27‑6‑1962, read as a whole, would show that the intention of the appearing defendants who are petitioners in this case was to contest the suit and thus to submit to the jurisdiction of the civil Court. He further points out that in the later application filed on 9‑7‑1962, asking for stay under section 34 of the Arbitration Act, there was no indication or explanation as to why a prayer for time for the purpose of contest was made on 27‑6‑1962. He, therefore, contends that the petitioners have no case under section 34 of the Arbitration Act.

According to section 34 of the Arbitration Act:-

"Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against another party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings . . . . . . . . . ."

It thus appears that the prayer for stay under this section must be made before filing written statement or before taking any other steps in the proceedings. It is quite true that if it appears that without waiving one's right under the agreement for arbitration some step is taken for the purpose of appreciation of the nature of the case then he will be free to make an unqualified prayer for stay in terms of section 34 of the Arbitration Act. But if it appears that he has taken some step in the proceedings whether in the shape of written statement or otherwise signifying thereby, his submission to the jurisdiction of the public forum, namely, the civil Court, then certainly he should be deemed to have waived his right under the Arbitration clause and he should be deemed also to have acquiesced in the proceeding before the civil Court. In the present case paragraph 1 of the petition as filed on 27‑6‑1962 says:-

"That the defendants will contest the suit instituted by the plaintiff and submit written statement in the suit."

In the prayer portion it is said

"It is therefore prayed that your honour would be pleased to grant an adjournment for filing of written statement in the interest of justice."

Mr. Aleem, however, wants to rely upon paragraph 2 of the same petition which is quoted below:-

"That defendants could not manage to instruct their lawyer in filing the written statement as be has not been able to appreciate the extraordinarily lengthy plaint and could not take copies of some more necessary papers as yet and they require sometime for the purpose."

In our view, it seems paragraph 1 and the prayer portion of the petition clearly indicate the intention of the petitioners to contest the suit by filing a written statement. On a reference to the language of paragraph 2 also it seems that the summons having been served on or about 15‑6‑1962, there was enough time for the defendants to go through the plaint consisting of about the pages only and upon perusal thereof the defendants decided to contest the suit and for that purpose the defendants wanted time to procure other documents and papers. This application for time, therefore, was made for the purpose of contesting the suit and in order to get facilities for such contest, time was asked for by means of this application. This was surely indicative of preparation for contest and not indicative of want of appreciation as to the possible nature of the case and conse quent instructions to be given to the lawyer concerned. In our view, by means of this application the petitioners submitted to the jurisdiction of the civil Court. There is nothing by way of explanation in the later application dated 9‑7‑1962 as to what reasons or circumstances compelled the petitioners to file an application like that on 27‑6‑1962. It is difficult to agree with Mr. Aleem, therefore, that merely for the purpose of ascertaining the nature of the case and for the purpose of instructing the lawyer; time was asked for by means of the application filed on 27‑6‑1962.

The case of the New Bengal Shipping Company through Its Managing Agents, Kassim and Ismail, Ltd. v. Eric Lancaster Stump of Singapore (P L D 1952 Dacca 22), decided by a Division Bench of this Court supports the view that an application for time to file written statement to certain circumstances might be regarded as amounting to steps in the proceeding within the meaning of section 34 of the Arbitration Act. In this case the petitioners certainly did not ask for stay before taking any step in the proceeding. It will not be superfluous to mention that the filing of written statement is surely a kind of step taken in the proceeding and a prayer for time to put in the written statement for the purpose of contest is surely another kind of step within the meaning of section 34 of the Arbitration Act. The contention of Mr. Aleem must, therefore, fail.

The result, therefore, is that this Rule is discharged with costs hearing for being assessed at three gold mohurs.

--I agree.

K. B. A. Rule discharged.

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