SALMAN HAMID, J.---Through this Reference dated 1-7-2011 the A learned Commissioner has informed the court that the time that was granted for undertaking the commission has lapsed.
Only plaintiffs witness has been examined and partly cross-examined. Under the circumstances further three months' time is allowed to the learned Commissioner for concluding the evidence of the parties with power to impose cost of Rs,7000 on the party seeking adjournment
2. C.M.A. No,11263 of 2010:---This is a submission under section 34 of the Arbitration Act, 1940 (the Act), looking for stay of measures of the suit inasmuch as that there was a clause for motion of dispute through conformity, executed between the plaintiff and defendant No, 2 on 26-6-1996, hereinafter referred to as "the Agreement". The foundation for stay of dealings, inter alia, as urged by the learned counsel for the defendant No,2 were that the gesture could not set in earlier as the arbitration clause in the Agreement has been noticed only upon its tiling at the substantiation phase. The mischief of section 34 of the Act, i,e, stepping into the proceedings therefore should not be a hurdle for defendant No,2 at this stage of time i,e, the evidence. This assertion was fortified by citing the precedent: Pakistan International Airlines Corporation v. Pak Saaf Dry Cleaner (PLD 1931 Supreme Court 553).
3. Skirmishing and resisting motion in the guise of the above C.M.A., erudite counsel, Mr. Kansi embarked upon the task to dislodge it. It was argued that the defendant No,2 having engaged into the proceedings cannot now maintain the C.M.A. Thus, it was argued that it is liable to be dismissed. Augmenting his contention, the learned counsel further urged that the defendant No,2 all along was awake of the stipulations of the agreement, together with the arbitration clause therein; still chose to stay aloof only to prolong the proceedings, which have already been substantially tardy. It was pointed out by the learned counsel for the plaintiff that by way of retort to paragraph two of the plaint, which had spoken of carrying out of the Agreement, the defendant No.2 in their written statement by way of paragraph two admitted that the Agreement was executed. Thus at this belated stage and that too after having taken steps into the proceedings, the defendant No,2's (sic) (haven to the rations) of section 34 of the Act are not even remote.
4. I have heard the urging of the learned counsel and have gone through the trace of the file in facet.
5. It is lucid from the contents of the written statement, filed by the defendant No,2 that the completing of the Agreement is not in doubt or even at variance. Study of the Agreement would divulge that it was signed and executed on behalf of defendant No,2 by its Secretary. It is also a matter of the record that the counter affidavit to the affidavit of the injunction application favoured by the plaintiff was signed by the Secretary of defendant No,2 and also the written statement by the Secretary of defendant No,2. It is thus patent that even if the Agreement was not supplied with the plaint, the fact would stay the same that execution thereof was not dubious. Under the circumstances it is perceptible that the defendant No,2 all along knew not just of the Agreement but was also quiet attentive of its various stipulations, including the arbitration clause but chose to give deaf ear to it consequences whereof it must bear now. Even otherwise agreements of such nature, which is -at sight in this case too, are always couched in the usual B format and language which always have pattern clauses, including the clause for arbitration. Such was the case with the agreement too. This being so, it is demonstrably clear that all along the defendant No,2 and/or the Secretary of defendant No,2 was aware or deemed to be alive of the contents of the Agreement, including the arbitration clause thereof. Under the situation, it is clear that once defendant No,2 chose to take steps into the proceedings; heedlessly enough, cannot now turn back and fall upon the provision of section 34 of the Act. The defendant No,2 has been struck, it seems, by its own wisdom.
6. The case of Pakistan International Airline Corporation v. Pak Saaf Dry Cleaner reported as PLD 1981 SC 553 is of no backing to the defendant No,2. In such case the apex court leave behind orders of the two courts below mainly after making an allowance of the truth that therein an application under section 148, C.P.C. Was only filed and that too with the prayer that since the concerned law officer of the Corporation was unavailable and that all the record of the case was also not in reach of the Corporation because of non-availability of that Officer, only time was sought for filing written statement by extending the application under section 148, C.P.C. This moving of application stirred the other side to the effect that since steps by way of filing application for extension of time had been moved, the Corporation deemed to have entered into the proceedings. Looking at such position, the Hon'bie Supreme Court came to the conclusion that mere filing of an application for enlarging the time for written statement would not sum to taking steps into the proceedings and that too when it was contingent upon the fact that such application was moved because the Corporation was not aware of the Agreement, let alone of the contents thereof.
7. In stark contrast to the above situation that cropped up in the cited precedent, here it is clear that not only the defendant No,2 were quite aware of the Agreement but also its execution was admitted, which was signed by its Secretary, who also signed the counter affidavit, and written statement in the present lis. Needless to mention that it is the office of the secretary, who is also the custodian of the entire record of the defendant. No,2 entrusted with the responsibility to Took after the interest of defendant No,2. It is immaterial as to who was the person holding the post of Secretary at the relevant time as the official record and documents do not change. It is only the person holding such office/designation. Since in the present case the Secretary having taken steps into the proceedings (suit) on behalf of defendant No,2 by way of filing counter-affidavit to the injunction application and also by filing written statement cannot now say that he was not aware or that the defendant No,2 was not aware of the arbitration clause. It is of no gain. Resultantly, the C. M.A. Is hereby dismissed with no order as to costs.