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Civil Revision No.58 of 1986, decided on 1st June, 1987.

---S.34--Suit--Stay of proceedings-- Application under S.34, Arbitration Act to be made within reasonable time--Respondents on their own showing appearing before Court in November, 1983 but making application under S.34 of Act in April, 1984 without realising that invocation of arbitration clause was to be made possibly on the first day before taking any step in aid of decision of Court--Respondents taking no precautions in filing their application which they filed after they had taken some steps in aid of proceedings--Held, respondents lost their chance of invoking arbitration clause--Order of District Court allowing respondents' application under S.34 of Act set aside and their application was dismissed--Suit of petitioner-plaintiffs allowed to proceed in accordance with Civil Procedure Code.

Sheobabu v. Udit Narain and another 24 IC 490 and Board of Intermediate and Secondary Education, Sargodha and another v. Messrs Akhtar Brothers 1981 C L C 221 rel.

Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners P L D 1981 S C 553 ref.

S.M.Masud for Petitioner.

Syed Farooq Hassan Naqvi for Respondents.

This Civil Revision calls in question an order dated the 12th of November, 1985, of the learned Addl. District Judge, Faisalabad, whereby accepting the respondents-defendants' appeal, their application under section 34 of the Arbitration Act, 1940, was allowed.

2. The petitioner-plaintiff Mazhar Ullah instituted the suit for rendition of accounts on the 8th of January, 1983. Summonses were issued to the three respondents for the 5th of February, 1983, and then for the 8th of March, 1983, when the respondent Sarwar alone appeared. Fresh summonses were issued for the 28th of April, 1983, for the other two respondents, but on this date the Presiding Officer was absent and the case was adjourned to the 9th of June, 1983, when the respondent Sarwar was ordered to file written statement while summonses were repeated for appearance of respondents Nos.2 and 3 on the 21st of July, 1983. On this date respondent No.1 sought adjournment which, of course, was allowed to him till the 14th of September, 1983, on payment of Rs.50 as costs but respondents Nos.2 and 3 were still not served. Summonses were again issued to them for the 21st of September, 1983. This time respondent No.1 made an application for adjournment on the ground that their counsel had left for performance of Hajj. The case was adjourned to the 17th of November, 1983, when though counsel for all the three respondents appeared but failed to file written statement. Again the case was adjourned to the 9th of December, 1983, with a direction to the respondents to file written statement. On the next three dates viz. the 19th of December, 1983, the 28th of January, 1984, and the 26th of February, 1984, the Presiding Officer was on leave and finally the hearing was adjourned to the 9th of April, 1984, when the respondent filed an application under section 34 of the Arbitration Act for staying proceedings.

3. The petitioner-plaintiff contested the said application maintaining, inter alia, that after having obtained a number of adjournments for filing written statement, the respondents had taken steps in aid of hearing of the suit thereby relinquishing their right to invoke arbitration clause.

4. The trial Court dismissed the application, but in appeal a different view was taken and understandably the application was allowed.

5. There is not gainsaying the fact that the respondent-defendant Sarwar had requested on the 21st of July, 1983, for an adjournment for filing written statement and he was granted the same on payment of Rs.50 as costs. He had made even applications at pages 35 and 37 of the present file for seeking adjournments to file written statement. In presence of this material, it is difficult for him to wriggle out and individually he had lost right as also opportunity to invoke arbitration clause later on the 9th of April, 1984. The case of the other two respondents, though ostensibly distinguishable, does not ex facie appear to be any the different. Undeniably they were not served for many dates, or the Presiding Officer was absent on quite a few of them, but they all were personally present on the 17th of November, 1983, when owing to the failure to file written statement, they were directed to submit the same on the 9th of December, 1983. This adjournment was claimed to have been "impliedly" asked for by them having had the effect of a step in aid of adjudication of the suit by the Court. Referring to the grounds of appeal filed before the lower appellate Court, it was contended that on their own showing it was an adjournment obtained by all the respondents jointly and hence they all had abandoned the right to invoke arbitration clause. Support for this view was sought from Sheobabu v. Udit Narain and another (24 I.C. 490) and Board of Intermediate and Secondary Education, Sargodha and another v. Messrs Akhtar Brothers 1981 C L C 221 which among other things laid down that failing to file application under section 54 within a reasonable time after appearance in the Court, or written statement and obliging the Court to further adjourn the hearing would be tantamount to making an implied request for adjournment for the purpose.

6. On the other hand, it was stressed that At least respondents Nos.2 and 3 did not make any request for adjournment and that they made the application under section 34 ibid the very first day when they appeared.

7. Considering the pros and cons, there seems force in the contention that Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners P L D 1981 S C 553 relied upon by the lower appellate Court did not lay a flat rule of general applicability. It related to its own peculiar facts including withholding the agreement by the opposite counsel. The application was made there after the factum of the agreement came known to the defendant. It was not a case between two individuals. One of the parties was P.I.A. and the knowledge about the agreement was acquired by the defendant after the same was brought to limelight quite late after appearance of the parties in the Court. No such situation arises in the present case and, therefore, the rule enunciated above may not be applicable to the present case stricto sensu. In the case in hand no doubt some adjournments were allowed to effect service on defendants Nos.2 and 3 but they had all appeared before the Court on the 17th of November, 1983, when the case was adjourned to the 19th of December, 1983, to enable them to file their written statement. This adjournment was necessitated only because they had not filed the written statement. Evidently it involved an implied request on their behalf to adjourn the case so that they could file the written statement. The rule laid down in the above Board of Intermediate and Secondary Education, Sargodha's case would apply to construe this judgment having taken place on the implied request of the respondents. The respondents themselves took up such instance in their grounds of Appeal where they affirmed that they jointly asked for adjournment. This authority was sought to be distinguished on the ground that it had used peremptory words of directing the respondents to file the written statement next time in all events. The use of the language may not postulate much of difference. Even the emphasis laid on filing the written statement is a little different from seeking adjournment. In fact, the latter element was more significant and since the hearing was adjourned for receiving written statement next time, the implication clearly was that it was made to accommodate the respondents. It served as a step in aid of adjudication of the suit relinquishing intention to implement arbitration clause. There was justification to apply the rule laid down in the Sheobabu's case as well. It contemplated making an application under section 34 within reasonable time. Here, the respondents on their own showing as also borne out by the record had appeared before the Court on the 17th of November, 1983, but they made an application under section 34 as late as the 9th of April, 1984. They should have shown more promptitude realizing that invocation of arbitration clause was to be made possibly on the first day before taking any step in aid of the decision by the Court. They took quite a few months in making the application after their first appearance. No doubt on a few intermediary dates the Presiding Officer was absent, yet nothing prevented them to file the application even in the absence of officer concerned. In fact, under section 23 of the West Pakistan Civil Courts Ordinance, 1962, in the temporary absence of a Presiding Officer, his successor is appointed to deal with urgent work. Assuming that no such arrangement existed on the dates the Presiding Officer was on leave, yet for purposes of filing the petition the forum of District Judge as a Principal Court of civil jurisdiction could have been availed. No such precaution was observed by the respondents. Their application was made after they had taken some steps in aid of proceedings and thereby had lost the chance of invoking it.

8. I feel constrained to differ with the lower appellate Court. The revision petition is accepted and the impugned order is set aside. The respondents' application under section 34, Arbitration Act, is dismissed. The suit shall proceed in accordance with the Civil Procedure Code. Parties to appear before the lower Court on the 4th of July, 1987. The record, if called here, be sent back without delay.

M.Y.H./M-382/L Petition accepted.

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