' A suit for recovery of Rs, 16,000 was filed by the respondent against the petitioner in which summons for framing of issues were issued for the 7th of July, 1979. On that date, the following order was passed by the learned trial Court. {{URDU TEXT}}
2. On the 17th of July, 1979, however, the petitioner filed an application under section 34 of the Arbitration Act for staying the proceedings in the suit in view of an agreement to refer the matter to arbitration. The learned trial Court dismissed this petition on the 10th of October, 1979. Instead of filing an appeal, the petitioner filed a revision petition before the learned District Judge, Sargodha.
At the time of the hearing of the revision petition, an objection to the maintainability of that petition was taken by the other party which was given effect to by the learned District Judge. He did not allow the revision petition to be converted into an appeal. However, he found on merits that since the petitioner had been granted an adjournment for filing the written statement, this amounted to the petitioner taking a step in aid of the proceedings and thus debarring himself from invoking section 34.
3. This case was admitted to a regular hearing to consider whether the learned District Judge was legally justified in refusing to consider the revision as an appeal. There is no doubt that in case where the petition has been filed within the time of limitation for an appeal and is properly stamped according to Court-Fees Act, such permission ought to be granted. It does net take away any right vested in the other party but is only a rectification of a formality.
4. This does not however end the matter since I find that the learned District Judge has given a finding on merits also am not in agreement with the argument of the learned counsel for the petitioner that the learned District Judge could not have gone' into the merits once he had come to the conclusion that this was not a fit case for allowing the conversion of the petition for revision into an appeal. The learned District Judge could have, after giving a finding about the maintainability of the revision petition 8 and refusing permission to convert it into an appeal, gone alternatively into the question of merits assuming that the conversion had been allowed.
5. The learned counsel for the appellant contended that in view of the facts of this case there was no. Step in aid of any proceedings taken by the petitioner on the 7th of July, 1979. He submitted that the Court had itself given the adjournment for filing the written statement without there being any application oral or written in this behalf. In support of this he relied upon Messrs M. M. Yaseen v.
Messrs Irving R. Body & Co. (1).
6. That case is clearly distinguishable. The matter was decided in accordance with rule 156(2) of the Sind Chief Court Rules (0. S.) which provides that "if the summons had been issued for settlement of issues, the defendant shall be directed to file his written statement within fourteen days of such appearance, unless the Registrar (0. S.) for sufficient reasons, allows more than fourteen days' time for the purpose". . . . In view of this rule the Registrar had granted time for filing of the written statement. It was in these circumstances that it was held that by accepting grant of time the defendant had not taken any step in the proceedings.
7. This rule is not applicable to the Lahore High Court nor is any corresponding rule here. According to Order IX, rule 1, 7th of July, 1977 was the first date of hearing. This date was for framing of the issues which meant that it was the date for hearing, there being no rule to the contrary, for filing the written statement. It appears that the petitioner had already had with him the copy of the plaint, otherwise he should have applied for delivery of such copy to the Court. The words in the order dated 17-7-1979, clearly go to show that this was an adjournment granted to the defendants and must have been granted on an application by them. Such a request is implied in the order. In these circumstances, the authorities which are applicable to the facts of this case would be Muhammad Idris and others v. Tobarak Hussain (2) and New Bengal Shipping Company v. Eric Lancaster Stump of Singapore (3).
8. The learned counsel for the petitioner, however, relied upon Government of Baluchistan and 4 others v. Mir Qadir Bakhsh & Sons (4), Badsha Meah Sowdagar v. Nurul, Haq and others (5) and Muhammad Esack v. Raja Mian and others (6).
9. Government of Baluchistan and 4 others v. Mir Qadir Baksh & Sons is of no help at all since in that case the case had been fixed for hearing on different dates in the presence of the parties and applications were also made under Order VIII, rule-10 and Order VII, rule 19. All these facts were held to amount to a further step in the proceedings. Reference {{FOOT NOTE}}
(1) PLD 1957 Kar. 756 (2) PLD 1965 Dacca 260
(3) PLD 1952 Dacca 22 (4) PLD 1978 Quetta 204
(5) PLD 1967 Dacca 250 (6) PLD 1969 Dacca 719 {{FOOT NOTE}} ' has been made in that case to G. M. Pfaff A.-G. v. Sartaj Engineering Co. Ltd., Lahore and 3 others (1), in which the expression 'step in proceedings' has been held to include submission to the jurisdiction of the Court.
10. In Badsha Meah Sowdagar v. Nurul Haq and others the facts were absolutely different. In that case, there was an application for appointment of receiver alongwith the application under section
34. Objections were filed to the application for appointment of receiver also for which time had been asked for earlier. In view of the circumstances of that case it was held that grant of time for such a purpose and filing of objections against the appointment of receiver did not amount to taking any step in the proceedings. However, reference was made, with a view to distinguish it, to the case of Subal Chandra v. Muhammad Ibrahim (2) in which the following order was passed on the appearance of the parties, "Court adjourned for three weeks. Affidavit in opposition within a fortnight. Reply by Saturday following " It was held that this amounted to an application by the petitioner through his counsel to obtain time for filing the affidavit in opposition and clearly implied a statement to the effect that the defendant would proceed to defend the action and would not insist on the right to have the disputes disposed of by arbitration." In fact, the facts of the Calcutta case are very near to the facts of the present case and that authority was distinguished by the Dacca High Court in the above case.
11. The Dacca High Court in this case also referred to the test for determining whether a particular action amounts to any step in the proceedings and approved the following rule laid down in Nuruddin Abdulhusein v. Abu Ahmad Abdul Jalil (3) : "The true test for determining whether an act is a step in the proceedings is not so much the question as to whether there has been an application in the suit although, of course, that would be a satisfactory test in many cases-but whether the act displays an unequivocal intention to proceed with the suit and to give up the right to have the matter disposed of by arbitration."
12. Now this test is fully applicable and if it is once held that the adjournment must have been granted on the oral application of the petitioner, the petitioner must be held to have taken further steps in the proceedings.
13. The facts in PLD 1969 Dacca 791 were similar as in the earlier Dacca case but none of these authorities overruled the case reported in PLD 1965 Dacca 26U referred to above. I, therefore, hold that the learned District Judge was right in holding this conduct of the petitioner to amount D to a step in the proceedings. The petition is without force and is dismissed, but I would leave the parties .To bear their own costs. {{FOOT NOTE}}
(1) PLD 1970 Lah. 184 (2) AIR 1943 Cal. 484
(3) AIR 1950 Bom. 127 {{FOOT NOTE}}