MUHAMED MOHIDEEN NACHIAR Vs. MUHAMED NAINA MARACAIR

JUDGEMENT

(1.) The defendants in their written statement in this suit raised various defences and one of them was that the plaintiffs had agreed to submit their case to arbitration. Various issues were framed, one of which was whether the Court had jurisdiction. That issue and another were heard nearly three years later; and on the last day of arguments on these issues the Court drew the attention of the vakil for the defendants to the fact that he should, under paragraph 18 61 the second schedule to the Civil Procedure Code, have put in an application for a stay. The defendant's vakil acted on this and filed a petition; but even then the petition did not contain1 some of the necessary elements and it had to be amended. Orders were then passed granting stay of the suit to permit the parties having recourse to arbitration. In the first instance a stay for six months was granted and later the suit was adjourned sine die. An appeal was filed to the District Court, which upheld the orders of the Subordinate Judge.

(2.) In revision it is urged that the Subordinate Judge acted illegally in granting a stay at such a late stage of the proceedings; for the provisions of paragraph 18 of the second schedule like those of Section 22 of the Civil Procedure Code, require an application at the earliest possible opportunity or at or before the framing of issues if stay is to be granted.

(3.) The Courts below seem to be of opinion that this objection of the plaintiffs was a highly technical one and one that should not be allowed to prevail. Certain cases were quoted before them; but they came to the conclusion that although there was no ambiguity in the language of paragraph 18 of the second schedule, yet it did not appear probable that paragraph 18 intended to lay down any rigid rule. Reference was made to Dinabandhu Jana V/s. Durgaprasad Jana (1919) I.L.R. 46 Cal. 1041 (F.B.) where it was only in the High Court in appeal that an objection was raised that no application for stay had been put in. In that case, not only had one side failed to put in an application for stay, but the other side had failed to take any objection to the proceedings on that ground; and so the Calcutta High Court thought that the best procedure to adopt was to remand the suit to the stage of framing issues so that the trial Court could consider the merits of an application for stay. I do not think there is anything in this case which suggests that the learned Judges of the Calcutta High Court who heard that appeal thought, that the provisions of paragraph 18 of the second schedule were not mandatory. The wording of paragraph 18, as well as of Section 22 of the Civil Procedure Code, is clearly mandatory and if any authority were needed for the position, it is found in Firm Behari Lal Kanhaya Lal V/s. Official Receiver, Lahore A.I.R. 1925 Lah. 175 and Shiv Datt v. Motiram A.I.R. 1925 Lah. 322 (1). The suit was filed in August, 1933 and issues were framed on 5 December, 1933. The petition for stay, far from being filed at the earliest opportunity, was put in only at the instance of the Court on 11 September, 1936. It cannot therefore be said that the provisions of paragraph 18 of the second schedule were complied with; and I think the lower Courts were wrong in treating the provisions of this paragraph so lightly. It is clearly beyond the powers of a Court to treat some laws of the legislature as being less binding on them than others.