R MCDILL AND COMPANY PVT LIMITED Vs. GOURISHANKARSARDA

JUDGEMENT

(1.) These appeals by special leave are directed against the order of the Calcutta High court dated 2/02/1973. Brief facts necessary for the determination of these appeals are that Shri Gouri Sankar Sarda (hereinafter referred to as 'respondent 1') filed a Suit No. 1783 of 1965 in the Calcutta High court against R. Mcdill and Company Pvt. Ltd. (in short appellant 1, Misrilal Dharmchand (Pvt. ) Ltd. (in short appellant 2 and Shri Misrilal Jain for the recovery of some amounts as well as for some other reliefs. On or about 15/12/1965 both appellants 1 and 2 who were also defendants in the suit submitted a joint application in the High court for staying proceedings of the aforesaid suit, under S. 34 of the Arbitration Act, 1940 (hereinafter referred to as 'the Act'). In view of some formal defect in the application the High court by order dated 25/02/1966 gave permission to withdraw the said application with liberty to file a fresh application. As the entire case hinges on the above order dated 25/02/1966, relevant portion of the said order is reproduced as under:

(2.) Aggrieved against the aforesaid order of the High court dated 2/02/1973 the appellants have filed these appeals by the grant ofspecial leave. Order XXIII Civil Procedure Code as it existed at the relevant time is reproduced as under:

(3.) It was contended on behalf of the appellants that the provisions of Order XXIII were not applicable in the matter of applications filed under S. 34 of the Arbitration Act. It was contended that the provisions of Order XXIII could only apply to the proceedings of a suit and not in respect of any applications filed under the Act. It was submitted that the High court committed an error in taking a highly technical view of the matter that initially a joint application was submitted for staying the suit and liberty was given to withdraw the same and to make a fresh application and as such the appellants were not entitled to submit two separate applications though for the same purpose. It was contended in this regard that there were two separate agreements between the plaintiffs and appellants 1 and 2 containing an arbitration clause and as such the appellants were given a legal advice to submit two separate applications for staying the suit and the High court should not have dismissed the applications on the ground that liberty to file fresh application was given in respect of one application only. Learned counsel for theappellants in support of his contention placed reliance on Nawab Usmanali Khan v. Sagarmal.