MADHUBHAI MANGABHAI SONERI Vs. MOTIVARAS PREMJI MAVJI

JUDGEMENT

(1.) The effect of making an application for adjournment to file a written statement for the purpose of Sec. 34 of the Arbitration Act, 1940 (the 'Act' for brief) has been settled by the Supreme Court in its various judgments and yet this very question has been raised before me in this Appeal from Order directed against the reasoned order passed by the learned Civil Judge (S. D.) at Porbandar on 11/04/1983 below the application at Exh. 19 in Special Civil Suit No. 19 of 1979. Thereupon the learned Trial Judge was pleased to reject the present appellant's application for stay of the suit under Sec. 34 of the Act.

(2.) The facts giving rise to this Appeal from Order move in a narrow compass. The respondents filed one suit in the Court of the Civil Judge (S.D.) at Porbandar for a decree in the sum of Rs. 92,540 and in the alternative for possession of one fishing boat bearing the name "Gomti" and bearing call No. 245 on the strength of one agreement produced by the plaintiff at Mark 4/2 on the record of the Trial Court. It came to be registered as Special Civil Suit No. 19 of 1979. The agreement in question contained one clause for resolution of the dispute between the parties through arbitration. The appellant herein, thereupon, moved one application for stay of the suit as provided in Sec. 34 of the Act. It was taken on record at Exh. 19 by the Trial Court. The present respondents filed their written reply at Exh. 20 on the record of the Trial Court and resisted the present appellant's application for stay of the suit under Sec. 34 of the Act on various grounds. The present respondents inter alia contended in their reply at Exh. 20 on the record of the Trial Court that the present appellant had sought adjournment twice by means of his applications at Exhs. 15 and 18 on the record of the Trial Court for the purpose of filing his written statement to the suit, and as such he could be said to have forfeited his right of claiming the benefit under Sec. 34 of the Act. It appears that the said contention urged on behalf of the present respondents found favour with the learned Trial Judge. By his reasoned order passed on 11/04/1983 below the application at Exh. 19 in Special Civil Suit No. 19 of 1979, the learned Civil Judge (S. D.) at Porbandar was pleased to reject the present appellant's application for stay of the suit under Sec. 34 of the Act. The aggrieved appellant has thereupon invoked the appellate jurisdiction of this Court as provided in Order 43 of the Code of Civil Procedure, 1908 (the 'Code' for brief).

(3.) The effect of filing an application for adjournment for filing a written statement in the suit for the purpose of Sec. 34 of the Act was considered by the Supreme Court in the case of the State of Uttar Pradesh and Anr. v. M/s. Janki Saran Kailash Chandra and Anr., reported in AIR 1973 SC 2071. In that case the opposite party had moved an application for adjournment for filing the written statement to the suit before filing an application for stay of the suit proceedings under Sec. 34 of the Act. After reviewing the case law the Supreme Court held that an application for adjournment for filing a written statement would amount to taking a step in the proceedings, and would therefore prove fatal to an application for stay under Sec. 34 of the Act.