PUNJAB STATE Vs. MOJI RAM

JUDGEMENT

(1.) THIS is an appeal by the Punjab State against the order of the Senior subordinate Judge, Hissar, by which the Govern-merit's application for stay of the suit filed by Moji Ram for the recovery of Rs. 7,750 has been dismissed.

(2.) MOJI Ram is a Government contractor. On the 1st of May 1951 he was given two contracts to construct at Canal Colony, Hissar, the senior clerk's quarters and Sub-Divisional Officer's bungalow. On 5-2-1952 he was given the contract to construct a V. R. bridge at Rana Distributary and a syphon at Balsamand Distributary. The work entailed in these contracts was described and detailed in work order forms. These forms show that each item of work was specified with rates. On the 3lst august 1954 the contractor filed the present suit for recovery of the balance due for the work done in constructing the buildings. With the plaint he filed the relevant work order forms and also three schedules. One schedule Rave the items of work which are covered by the work orders. The value of this work is Rs. 3. 608-3-0. The second schedule gives the items not covered by the work orders and its value is alleged to be Rs. 4,126-9-0. The third list gives the items of work done and paid for. Thus for the present proceedings we have only to consider the schedule giving the items which according to the plaintiff are not covered by the work orders. The trial Court fixed the 19th of November 1954 for appearance of the defendant. On this date the Government Pleader with one Kartar Singh, Sub-Divisional officer, appeared and asked for time to file written statement as Instructions with a copy of the plaint had not been received. The Court granted adjournment and fixed 17th of December 1954 for filing the written statement. On this date the government Pleader filed the application for stay of the suit under Section 34 of the Indian Arbitration Act. This application was contested by the plaintiff on the grounds that there was no arbitration agreement between the parties and that in any case the suit should not be stayed. Some evidence was lea by the parties and then the Court refused to stay the suit on the ground that the entire suit was not covered by the arbitration agreement, although a" finding was given in favour of the Government that the application for stay was not belated on -account of the Government Pleader's application for adjournment of the case on the 19th of November, 1954.

(3.) ON the 19th of November 1954 when the Government Pleader appeared he stated that he had not received any instructions or a copy of the plaint. There is nothing on the record to show if the plaintiff had filed a copy of the plaint to be served with summons on the Government, nor it can be gathered whether the government had at all been served by that time. The Gov-ernment Pleader filed an affidavit in the trial Court that at the time he had asked for adjournment he had no instructions from the Legal Remembrancer and Secretary to Government, punjab, to defend this case and that he was not conversant with its facts. There is no reason to disbelieve the Government Pleader on these points. The question arises whether in these circumstances the Government can be said to have taken "any steps in the proceedings. " I have not come across any case in which an effort has been made to define as to what is a step in the proceedings. Lindley, L. J. . in Ives and Barker v. Willans, (1894) 2 Ch 478 (A), has said :