BHANWARLAL Vs. INSAF ALI

JUDGEMENT

(1.) THIS is an appeal by defendants-appellants under Section 39 of the Arbitration act against an order of the District Judge, Bikaner, dated 8-9-67 whereby the learned District Judge dismissed the three identical applications filed by the defendants-appellants for staying the suit filed against them by the plaintiffs-respondents in accordance with Section 34 of the Arbitration Act. The facts relevant for the purposes of disposing this appeal are briefly these:

(2.) PLAINTIFF-RESPONDENT Insaf Ali through his next friend filed a suit against the defendants-appellants for realising Rs. 12,342,50 paise. The plaint was presented in the court of the learned District Judge on 26-7-67 and 25-8-67 was fixed for the film of the written statement. Summonses were issued by the Court on 5-8-67 and they were served on the defendants on 13-8-67. On 25-8-67, that is, the date of hearing fixed for the filing of the written statement one Shri Sampatlal, Advocate appeared for the defendants and asked for an adjournment for filing the written statement Accordingly, the learned District Judge adjourned the case to 4-9-67. On this date three applications were moved on behalf of the defendants under section 34 of the Arbitration Act for staying the proceedings as the agreement between the parties provided for arbitration. On 8-9-67, an affidavit was produced by the defendant purporting to show that he was ill on 25-8-67 and, therefore, he could not instruct the advocate properly The learned District Judge heard the arguments and he dismissed the applications under Section. 34 on 8-9-67. The learned, District Judge held that as on 25-8-67 the adjournment was sought on behalf of the defendants for filing the written statements it amounted to taking a step in the proceedings which, according to the learned Judge, disentitled the defendant from making a prayer for staving the suit. The learned District Judge placed reliance on Daulatram Ralaram v. State of punjab, AIR 1958 Punj 19 and came to the conclusion that a prayer for extension of time to put in a written statement indicated a desire on the part of the defendant to contest the suit on merits in Court and displayed an intention to abandon the right to have the matter disposed of by arbitration. The sole point that falls for consideration in the present appeal, therefore, is whether the learned district Judge was right in holding that the prayer for adjournment made on behalf of the defendants on 25-8-67 for filing the written statement was tantamount to taking a step in the proceedings as would disentitle the defendants from getting the suit staved under Section 34 of the Arbitration Act.