STATE OF HIMACHAL PRADESH Vs. LALCHAND SHAHI

JUDGEMENT

(1.) THIS is a defendant's appeal under from an order of the Senior Subordinate Judge of Sirmur dated 24 7 1952 refusing to stay legal proceedings on an application to that effect having been made before him by the appellant under Section 34 of the Act.

(2.) THE plaintiff respondent filed this suit for recovery of Rs. 7,886/9/6 on account of balance of price of empty tins, refund of security deposit etc., on foot of an agreement. The agreement contained an arbitration clause to the effect that in case of any dispute arising between the parties the matter would be referred to the arbitration of the Conservator of Forests and his decision shall be final.

(3.) THE learned Senior Subordinate Judge had before him two affidavits, one by Kr. Dalip Singh, Advocate for the defendant and another fey Sri L. D. Varma, Pleader for the plaintiff. It was averred in the former by Kr. Dalip Singh that it was on 29 2 1952 that he was engaged on behalf of the defendant, the State of Himachal Pradesh, to appear in the case, that by the time he appeared before the Court on that date he had not received instructions for the case, and, that therefore he verbally requested the Court to adjourn the case to enable him to prepare the defence on behalf of the defendant. The counter affidavit of the learned pleader for the plaintiff on the other hand is to the effect that Kr. Dalip Singh asked the Court for extension of time to enable him to file a written statement. It is common ground that no written application was filed but that the request of adjournment made by Kr. Dalip Singh was an oral one. It will be seen that while according to Kr. Dalip Singh he only asked for adjournment for enabling him to prepare the Government's defence, according to Sri L. D. Varma the adjournment was prayed for specifically for filing a written statement. Essentially however there is no difference between the two affidavits, for it may be said that an adjournment to enable the counsel to prepare the Government's defence is the same as one to enable him to file a written statement on behalf of the Government. What is material, however, is that the averment of Kr. Dalip Singh that by the time he appeared before the Court on 29 2 1952 and prayed for adjournment he had received no instructions from the defendant was not controverted on behalf of the plaintiff. I must therefore accept the averment in, the affidavit of Kr. Dalip Singh as correct. The correctness of that averment in Kr. Dalip Singh's affidavit is further supported by a communication on the record of the case from the Deputy Commissioner of Sirmur informing the Court that the counsel in question was being appointed to conduct the case on behalf of the State of Himachal Pradesh, with copies of communication to the counsel and the Conservator of Forests Nahan. The counsel was directed to take the relevant documents and to obtain necessary help for the purpose of conducting the case from the Conservator of Forests, and similar directions were given to the Conservator of Forests. This communication is dated 29 2 1952. There can be no manner of doubt therefore that Kr. Dalip Singh, Advocate was appointed counsel on behalf of the defendant, the State of Himachal Pradesh, on 2S 2 1952, and that by the time he put in appearance in Court on that date and asked for adjournment he had received no instructions. Can it be said in such circumstances that by reason of his having requested the Court for time to file written statement Kr. Dalip Singh should be deemed, within the intendment of Section 34, Arbitration Act, to have taken a step in the proceedings? The only reasonable answer to this question can be in the negative. And this for the simple reason that no person can be deemed to take any step in a proceeding who is not aware of what the proceedings are. 29 2 1952 was the date for settlement of issues and therefore for filing of written statement on behalf of the defendant, and so Kr. Dalip Singh on behalf of the defendant naturally asked for adjournment for filing a written, statement. He had however received no instructions by that time from the defendant, and therefore he could not possibly have been aware of the agreement on foot of which the suit had been filed or of the arbitration clause in that agreement. It was impossible for him therefore to have filed any application on that date for stay of proceedings under Section 34 of the Act. Later on, when he had taken the necessary instructions, he filed such an application. It cannot in the circumstance be said by any show of reason that before filing the application under Section 34 a step in the proceedings had been taken on behalf of the defendant on 29 2 1952 by reason of the defendant's learned counsel having asked for an adjournment on that date in the circumstances mentioned above.