1. ABDUL, KADIR SHAIKH, J.-Facts briefly stated are that by an agreement dated 16th August 1969, the respondent agreed to act as a contractor for rendering dry cleaning and dyeing services to the appellant on certain terms and conditions mentioned therein, which inter alia, provided for an arbitration clause as under :-- "All matters of dispute or difference. Arising out of this agreement between the Corporation and the Contractor, the settlement of which is not otherwise specifically provided for in this agreement, shall be referred to the Managing Director, Pakistan International Airlines Corporation and his decision shall be final and binding on the parties. The work under the contract shall, if reasonably possible, continue during the proceedings before the said Managing Director and no payment or payable by the Corporation shall be withheld on - account of such proceedings unless they are the subject of the dispute. The venue of arbitration shall be the place from where the contract is issued or such other place as the Corporation at their discretion may determine."
2. The contract which was initially for the period up to 31st July, 1970 was extended, by mutual consent, up to 31st July, 1971 on the same terms and conditions, including the said arbitration clause.
3. According to the appellant, the respondent did not render satisfactory services, as contracted, and also recovered large sums of money in excess of the amount due and payable under the contract, and since the respondent had to refund the amount recovered in excess, the appellant withheld payment of certain bills of the respondent for adjusting the amount paid in excess. Thus certain bills of the respondent were in dispute, and the differences between the parties in this behalf should have been normally referred to arbitration under the agreement.
4. The respondent, however, without referring the dispute to arbitration, filed Suit No. 43 of 1972 in the former High Court of Sind & Baluchistan, at Karachi for recovery of Rs. 1,12,536.65, being the amount allegedly due on certain bills for the services rendered to the appellant during the period from 29th December, 1959 up to 6th October, 1971.
5. The summons in the suit were served on the appellant for appearance before the Registrar on 29th March, 1972. It is the case of the appellant what during the relevant period, their Law Officer Mr. Mahmood Alam, who had the custody of the relevant papers including the said agreement, was outside Pakistan and their employee on being served with the summons handed over the same to the standing counsel. In the aforesaid circumstances, the counsel could not be given any files, papers or instructions.
6. On 29th March 1972, counsel's clerk filed Vakalatnama, and the Registrar, in the normal course, fixed the case for 6th April 1972 for filing the Written Statement. On 6th April 1972, appellant's counsel applied for extension of time to file Written Statement on the ground that "the Law Officer concerned who is dealing with the case has gone out of the country and is expected back by the end of the next month". On the next date, the 31st May, 1972, appellant's counsel again filed another application for extension of time on the ground that the Written Statement "could not be prepared due to the Officer-in-charge being out of Karachi". The request was granted and the next date of hearing was fixed for 9th August 1972. the Law Officer is said to have returned to Karachi, and he handed over a?1 the relevant files and papers, including the agreement between the parties, to his counsel and drew his attention to the arbitration clause, and also give him the necessary instructions. Subsequently, on 9th August 1972, appellant's counsel filed an application under section 34 of the Arbitration Act, 1940 for the stay of the proceedings I .1 the suit, and for direction/order that the matter be referred to arbitration in accordance with the said agreement between the parties dated the 16th August, 1969.
7. The application was, however, rejected by a learned Single Judge of the High Court by the order dated 6th February, 1.973 on the ground that "the defendant in applying for the time to file the Written Statement has displayed submission to the jurisdiction of the Court, and has taken steps in the proceedings".
8. Against this order, appellant filed an appeal under section 39 of the Arbitration Act before the Letters Patent Bench of the said High Court, but it :vas dismissed by the order dated 25th May 1973 on the short ground that it was not maintainable. The order reads as follows "This appeal is not maintainable as it is directed against an order refusing to stay the suit under section 34 of the Arbitration Act. The whole suit was not disposed of and, therefore, under the Law Reforms Ordinance, no appeal is maintainable to the Division Bench against an order of the learned Single Judge on the Original Side.
9. The appeal is rejected."
10. Special leave to appeal from the judgment of the High Court was granted in order to examine the submission advanced by the learned counsel for the appellant that the appeal before the Letters Patent Bench was maintainable under section 39 of the Arbitration Act, which is a special Act regarding arbitration, and that the Law Reforms Ordinance, 1972 which prohibited appeal from an interlocutory order, is a general Act, and it cannot override the provisions of the Arbitration Act.
11. Furthermore, that the Law Reforms (Amendment) Ordinance, 1972 was promulgated on 12th September, 1972 and, therefore, it could not retrospectively affect appellant's right of appeal under the Arbitration Act which vested in him on 19th August 1972 when the application under section 34 of the said Act was made. This was,' indeed, the first point that Syed Sharifuddin Pirzada, learned counsel for the appellant emphasised and in support of the submission referred to several reported decisions such as Sutlej Cotton Mills Limited v. Industrial Court (PLD 1966 SC 472 Shohrat Bano v. Ismail (1968 SCMR 574), Nabi Ahmad v. Home Secretary, Government of West Pakistan (PLD 1969 Lah. 966), Mirza Ashiq Hussain v. Additional Settlement Commissioner, Lahore and others (PLD 1977 Lah. 684), Abdul Majid Ahmed Bowany and others v. IIIrd Sind Labour Court, Karachi and 3 others PLD 1979 Kar. 549 On merits of the case, learned counsel submitted that the learned Single Judge in the High Court erred in holding that the appellant had submitted to the jurisdiction of the Court and had taken step in the proceedings and thus became disentitled to make an application under section 34 of the Arbitration Act. In this behalf, learned counsel pointed out that the appellant bad prayed for extension of time for the reason that their Law Officer who was dealing with the case had gone out of the country and, therefore, their counsel had no instructions in the matter and he was not even aware of the agreement between the parties till such time as the relevant files and documents were handed over to him. Learned counsel further added that the learned Single Judge also failed to appreciate that although the respon--dent had referred to the agreement between the parties in paragraph 2 of the plaint, yet deliberately and intentionally did not produce of file the said agreement in violation of the requirement laid down in this behalf under Order VII, rule 14, C. P. C.
12. And this omission on the part of the respondent is also significant, in that, appellant's counsel could not be aware of the contents of the agreement till the Law Officer of the appellant returned to Pakistan and handed over the relevant files to him. The learned counsel, therefore, submitted that in the circumstances and in the event that happened at the relevant time, there was no act on the part of the appellant as would indicate acquiescence in the method adopted by the respondent of having the dispute decided by the Court.
13. So far as the first point raised by Syed Sharifuddin Pirzada is concerned, the position in law is well- settled that the right of appeal is not mere matter of procedure, but it is a substantive right; and that the institution of a suit carries with it the implication that all rights of appeal then in force''' are preserved to the parties concerned till the rest of the career of the suit: and that these rights can be taken away only by a subsequent enactment., provided it so provides expressly or by necessary intendment, and not otherwise.
14. This doctrine was first laid down by the Privy Council in Colonial Sugar Refining Company Limited v.
15. Irving (1905 A C 369There, the facts were that an action commenced in the Supreme Court of Queensland on October 25, 1902. On that date, according to the Order in Council dated June 30, 1860 an appeal lay to the Privy Council against the judgment of the Supreme Court. While the action was pending, the Judiciary Act, _ 1903 came into force on August 25, 1903, and the result of it was to abolish appeals to the Privy Council and to substitute therefore a right of appeal to the High Court of Australia in respect of matters mentioned therein. On September 4, 1903, the Supreme Court gave judgment dismissing the action. But granted leave to the plaintiff to appeal to the Privy Council. The plaintiff having lodged an appeal pursuant to the leave, a preliminary objection was raised as to its maintainability on the ground that as the judgment under appealhad been pronounced after the coming into force of the Judiciary Act, any appeal against the same would be governed by the provisions of that Act, and that, in consequence, the appeal to the Privy Council was incompetent. In overruling this contention, Lord Macnaghten observed "The Judiciary Act is not retrospective by express enactment or bynecessary intendment. And therefore the only question is, `was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a matter of procedure'? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to anew tribunal. In either case there is an interference with the existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."
16. Sutlej Cotton Mills Limited v. Industrial Court of West Pakistan and others, this Court approved the principle laid down by the Privy Council in Colonial Sugar Refining Company Limited v. Irving and later on re-affirmed this view in Mst. Shohrat Bano v. Ismail. Since this proposition of law has now been firmly deep-rooted in our legal system, its correctness was not questioned, and very rightly so, by the learned counsel for the respondent.
17. The next question that arose was whether in view of the fact that the learned Judges of the Letters Patent Bench of the High Court fell in error in dismissing the appeal filed by the appellant on the ground that it was not maintainable under the Law Reforms Ordinance, and the appeal is therefore, deemed to be pending in the High Court, the present appeal before us should be allowed and the case be remanded to the High Court so that the Letters Patent Bench may hear the controversy between the parties, afresh, regarding the,, correctness of the decision of the learned Single Judge of the High Court as to whether the appellant, by applying for extension of time to file Written Statement, had displayed submission to the jurisdiction of the Court and taken step in the proceedings which entailed rejection of the application under section 34 of the Arbitration Act.
18. On this aspect of the case, learned counsel for both the parses submitted that in view of the fact that the controversy has remained pending for several years, this Court may itself decide the question whether the view that prevailed with the learned Single Judge in the High Court as to the com--petency of appellant's application under section 34 of the Arbitration Act is correct or not.
19. We ourselves were of the same view as the learned counsel for the parties, and, therefore, proceeded to hear the appeal on merits.
20. The precise question now to be considered is whether any of the actions taken by the appellant in the proceedings of the suit before the application under section 34 of the Arbitration Act was filed amounts to taking "step in the proceedings" so as to entail rejection of the application. In order to provide answer to this question, it is only appropriate that the provisions of section 34 be reproduced. These read "Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming' under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or, taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings; and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings."
21. It would at once be seen that the words "taking any other steps in the proceedings" are of general character, and of very wide import, and these are capable of embracing large variety of acts. In order to understand the purpose and the true meaning that is to be attributed to such wide variety of actions covered by the aforesaid words, reference may be made to the various parts of the section as follows :--"(l) Where--(a) any party to an arbitration agreement, or (b) any person claiming under him commences any legal proceedings against any other party to the agreement, or any person claiming under him-
(2) in respect of any matter agreed to be referred, (3) any party to such legal proceedings may--
(a) at any time-- (i) before filing the written statement, or (ii) taking any other steps in the proceedings, (b) apply to the judicial authority before which the proceedings are pending to stay the proceedings; and (4) the Court, if statisfied,--
(a) that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement, and (b) that the applicant was-- (i) at the time when the proceedings were commenced, and (ii) still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings."
22. As would be seen from above, the mere existence of a clause providing for arbitration does not bar a suit or other legal proceeding in Court. It only entitles a party to have the legal proceedings stayed. In order that a stay may be granted under the provisions of this section, certain condition must be fulfilled. The party must take the objection and apply for stay of proceedings before taking any step, for example, the filing of the written statement, that is, before he places his cards on the table. The provision of the section, further imply that the Court should, first of all, examining whether the arbitration clause applies to the dispute, and if it does, whether the nature of the dispute is such that the ends of justice will be better met by the decision of the Court than by that of private forum chosen and agreed upon, and to which the parties had made themselves bound to adhere and adopt in case that type of dispute arose between them. The Legislature has, of course, clearly implied in the language used in the section that the arbitration clause should be respected, but has also made it abundantly clear that the party seeking to avail of the provision of stay under this section rust clarify his position at the earliest possible opportunity, so - as to leave no manner of doubt that he wishes to have resort to arbitration proceedings. If he hesitates in this regard, or allows the suit to proceed in any manner, that conduct would indicate that he has abdicated his claim to have the dispute decided under the arbitration clause, and to have thereby forfeited his right to claim stay of the proceedings in the Court.
23. Now taking into consideration the facts of present case, in the light of the broad principles enunciated above, it may be stated at the outset that the assertions made by the appellant as to the facts and circumstances preceding the filing of the application under section 34 are not controverted. The crucial assertions that the learned counsel for the appellant was not given any instructions and that he was not even aware of the contents of the agreement upon which the respondent had based his claim and which also incorporated the arbitration clause, till such time that Mr. Mahmood Alam, the Law Officer of the appellant returned from abroad in June, 1972 and for the first time handed over the files to him and gave him the necessary instructions are not denied.
24. There is also great force in the argument advanced by Syed Sharifuddin Pirzada that the violation of the provisions of Order VII, rule 14, C. P. C. On the part of the respondent, which required him to file a copy of the agreement alongwith the plaint in suit, fundamentally contributed to the seeking of adjournments by appellant's counsel on the ground that he was waiting. The return of the Law Officer from abroad in order to obtain instructions, for, had the copy of the agreement been filed by the respondent alongwith the plaint and copy thereof supplied to him as required by the aforesaid provision of law, the .Learned counsel would have at once noticed the arbitration clause in the said agreement, and would have lost no time in filing the application under section 34.
25. With the background of these facts, the question is now whether the application for stay of the proceedings and for reference to arbitration under section 34 was made "before filing a written statement of taking any other step in the proceedings" ? It is not disputed that the application was made before the filing of the written statement, and the entire controversy in the case is whether it was made before taking any "other steps in the proceedings". Learned Single Judge in the High Court very correctly observed that the test for determining whether an act is a step in the proceedings is to see whether the act displays an unequivocal intention to submit to the jurisdiction of the Court, but he took the view that the appellant "in applying for the time to file the written statement has displayed submission to the jurisdiction of the Court and has taken steps in the proceedings".
26. The question arises whether an application made for adjournment of a case with a view to enable the party to file . Written statement is to be treated, as a matter of law, "a step in the proceedings". .
27. Learned Single Judge in the High Court has observed that "it has been held in several reported cases that an application for extension of time to file a written statement is taking a step in the proceedings and in this connection, I may only mention the case, of Muhammad 1dris v. Tobarak Hussain (PLD 1965 Dacca 260It is true that in several reported, cases it has been so held, but this is not the universal view. North, J. In Brighton Marine Palace & Pier Limited v. Woodhouse (1893) 2 Ch. 486), held that "obtaining time by agreement (to put in defence) is not a step in the action", and for this view quoted with approval the observations of Mr. Justice Denman in Chappell v. North ((1892)
28. 2 Q B 252). In that case there was a counter claim, and the plaintiff had taken out a summon and obtained leave to administer interro--gatories after the counter claim was put in. He bad also obtained time to put in a statement of defence in the counter claim. He moved to stay proceedings in the counter claim on the ground that there was a submission to arbitration. All these circumstances were relied upon as an answer to the motion. As regards the circumstances that "he had obtained a series of consents from the defendant for extension of time for the delivery of reply", Mr. Justice Denman gave decision in favour of the applicant, observing further : "No doubt, if the consent had been refused the plaintiff would have had to take out a summons, and that summons would have been a step. But I do not think that obtaining a consent, which was asked for the very purpose of avoiding the necessity of taking a step, can itself be regarded a step taken". It is noteworthy to mention here that the English rules of procedure relating to the filjng of written statement are not identical, but the principle laid down as to whether -seeking adjournment to file written statement amounts to "step in the proceedings" is fully attracted.
29. Zalinoff v. Hamnoud ((1898) 2 Ch. D 92) is a case in which an application was made by the plaintiff for appointment of a receiver in. Support of which he filed certain affidavits, and all that the defendants did was to file affidavits-in-- answer, upon which Stirling, J. Observed "It seems to me that mere filing of affidavits in defence to motion for a receiver is not in the nature of an application to the Court and con--sequently not a step in the proceedings within the meaning of the section. By such, a step is meant a substantive step taken by a party."
30. Ives & Barker v. Williams ((1894) 2 Ch. D 478), is also a relevant case in point. The observations of their Lordships of the Chancery Division, in their own words, highlight the point, and I may reproduce as under "The defendant entered an appearance, to the precipe and by a formal document he required a statement of claim. That was contem--poraneous with the entry of the appearance. Then he wrote a letter to the plaintiffs' solicitors, saying that he should desire a statement of claim. That is all he did. He took no other steps before he made this application for a stay under the section to which I have referred. -The contention on the part of the plaintiffs is this : that the defendant was too late because he asked for, .Or gave notice that he should require, a statement of claim, and that is said to be the taking of a step in the proceedings. Now the language of the section requires a little attention. It is quite obvious that the step to be taken by the appellant. It is not before any pleadings are delivered by anybody or any step is taken by anybody but it is before the party applying delivers any pleadings or takes any other steps; and, therefore, the question we have to consider is narrowed down to this : whether a request by one party to another to take a step is taking a step himself. That is what the defendant did. He asked the plaintiffs to take a step, to deliver a statement of claim. I cannot say that is taking a step in the proceeding which precludes the defendant making the application, and I do not think it would be good sense if we held that it was. Consider what the defendant did? He had received a writ and the writ shewed him that there was a claim for breach of contract. That he knew what the contract was I do not doubt, but he did not know from the writ what the particular breaches were in respect of which the plaintiffs were suing him, and, until he did know that, at all events, how was he to form an opinion as to whether it would be desirable to apply for an order or not? He had not the materials before him to enable him to exercise his judgment in the matter and it appears to me, therefore, that we should be doing any injustice to a defendant if we said that he must apply under the section for an order to refer before he knows what the plaintiff is suing him for. Quite apart from the case not being within the words, therefore, it is not within the spirit of the sense of the Act. Before a man can make up his mind as to which of the alter--natives he will take, he ought to know what the alternatives are, and ought to be in a position to exercise some kind of judgment in the matter, and if we were to hold that the defendant ought to have applied before, we should be saying that he should make his application in ignorance of material facts."
31. (Underlinings* are mine)
32. Messrs Prem Nath Pran Nath v. Ambar Parshad (AIR 1941 Lah. 64), the defendant appeared on the date fixed and brought it to the notice of the Court that copy of the plaint was not attached with the summons. He was supplied with a copy of the plaint and the case was adjourned in order to give him time to file written statement. On the date fixed for submission of the written statement, .The defendant applied for stay of proceedings under section 19 of the Arbitra--petition Act, 1899 (equivalent to section 34 of Arbitration Act, 1940). The trial Judge rejected the application on the ground that grant of adjournment meant that the defendant had taken a step in the proceedings.
33. Beckeet J, reversed the decision observing thus "Since the provision of the Code of Civil Procedure require that a copy of the plaint should be attached to the summons, as it may obviously be impossible for a defendant to know, what the case is about until this is done, the proceedings cannot be said to have commenced until the defendant has been supplied with a copy of the plaint ; and if time is then fixed for the preparation of the written statement, the time for this purpose is necessarily given by the Court and I do not think that it can be regarded in any sense as a step taken in the proceedings by the defendant."
34. Province of the Punjab v. Messrs Irfan & Co. (PLD 1956 Lab. 412) the Government Pleader appeared on behalf of the. Province (defendant) on the day of hearing and sought adjournment in order to obtain instructions. His request was granted and he afterwards moved an application under section 34 of the Arbitration Act. S. A. Rehman, C. J. (as he then was), after reviewing several reported decisions, held that the act of the Government Pleader did not constitute a step in the proceedings within the meaning of section 34 of the Arbitration Act, and for this view quoted with approval the observation of Das, J. In Subal Chandra v. Muhammad Ibrahim (AIR 943 Cal. 484that the criterion to decide whether an act constitutes a step in the proceedings is (a) whether the application was made to the Court either on summons or orally, and (b) whether the act was such as would indicate that the patty was acquiescing in the method adopted by the other side of having the dispute decided by the Court. Applying this criterion, S. A. Rehman, C. J. Observed that "the Government Pleader has received no instructions in the case and he, therefore, asked for time to do so It did not, to my mind, imply that there was no objection on the part of the Province to adjudication of the dispute by the Court".
35. Punjab State v. Moji Ram (AIR 1957 Pb 223) to which reference was made by Syed Sharifuddin Pirzada, the Government Pleader appeared with a departmental official on the date of hearing in Court and requested for time to file written statement as instructions had not been received by him. The Court granted adjournment, and on the next day he filed an application for stay of the pro--ceedings under section 34 of the Arbitration Act. On the facts of the case it was proved that the Government Pleader "did not know anything about the case, nor did he know the nature of the cause of action on which it was based. He did not even know whether the suit was based on a contract or on some other cause of action. He merely acted as a volunteer and asked for adjourn- -ment on the assumption that in due course he would receive instructions from the Government".
36. In these circumstances, it was held that It cannot be said that the Government, i. e., the defendant, took any step at all in the proceedings.
37. In arty case, application for adjourn--ment in such circumstances really amounts to an application to get time to discover the exact nature of the suit and nothing more. It cannot at all be said that the application in the present case was trade with a view to take a step in the proceedings within S. 34 of the Arbitra--petition Act."
38. Sat P.I v. R. K. Ahuja (AIR 1973 Ph. & Har. 197,) relied upon by Syed Sharifuddin Pirzada almost identical situation arose as the present case. C. J. Suri, J. Rely--ing upon the decisions in (i) Messrs Prem Nath Pran Nath v. Amba Parshad (AIR 1941 Lab. 64), (ii) State of Himachal Pradesh v.
39. Lalchand Shahi (AIR 1953 Him. Pra. 75and (iii) Dunichand Sons & Company v. Fort Gloster Industries Limited (AIR 1962 Cal. 541and others observed that "the material thing to keep in mind was that the defendant should know what the case against him was, and that with that knowledge he should conduct him--self in a manner from which we could infer that he had agreed to submit to the jurisdiction of the civil Court and to give up the right to get the differences settled by the alternative mode or arbitration. " . . . If the copy of the plaint was being supplied to defendants' ' counsel for the first time that day, it cannot be said that he was aware of the alternative mode of settlement of the dispute by arbitration, or of the fact that his accepting the copy of the plaint or the adjournment in the case was likely to prejudice the defendants' right to have resort to that alternative mode of the settlement of the dispute".
40. State of Himachal Pradesh v. Lalchand Shahi (AIR 1953 Him. Pra. 74) another case relied upon by Syed Sharifuddin Pirzada, defendant's counsel prayed for extension of time to enable him to file the written statement, and afterwards he filed an application for stay of the proceedings under section 34 of the Arbitration Act. The Court found that the statement of the defendant's counsel that he had no instructions, and that he had in fact requested for adjournment to prepare defence to the suit was correct. On these facts, it was held that "before any act of a party in the nature of an application for adjournment can be inter--preted as the taking by him of a stay in the proceedings, it must be the act of a party willing that the suit should proceed. That being so, the act of a counsel for a party in asking for an adjournment before having received any instructions from his client cannot be construed as indicating that he was willing that the suit should proceed".
41. The correct view seems to have been stated by Dar, J. In Roop Kishore v. Urited Provinces Government (AIR 1945 All. 25) who after review of several English and Indian decisions held as under "It may be possible to hold in some cases that an application for adjourn--ment of a case to enable the defendant to file a written statement was not a step in the proceedings within the meaning of S. 34 of the Act. But prima facie such an application should: be treated as a step in the proceedings within the meaning of section 34 and the whole burden should be upon the defendant to establish the circumstances which will lead to the result that effect should not be given to the prima facie meaning of the application."
42. Now, if the uncontroverted facts 'of the present case, which have already been summarised in the earlier part of the judgment are considered in the light of these principles, the conclusion become unresistable that the initial presumption that is to be attached to an application for extension of time so as to file written statement is thoroughly dislodged. `None of the acts of the appellant's counsel or the applications made by him can be considered as indicative of appellant's acquiescence to the method adopted by the respondent' of having the dispute decided by the Court, or that the appellant had displayed submisssion to the. Jurisdiction of the Court, or, bad abdicated their claim to have the matter decided in the manner provided in the arbitration clause ofthe agreement. On this view of the case, this appeal must succeed and is . Allowed, with the result that the order of the learned Single Judge dated 26th February, 1973 rejecting appellant's application under section 34 of the Arbitration Act and also the judgment of .The Letters Patent Bench dated 25th May, 1973 dismissing the appeal filed by the appellant are set aside, and' appellant's application under section. 34 of the Arbitration Act is granted and accordingly proceedings in Suit No. 48 of 1972 filed on the Original side.Of the High Court of Sind are stayed with the direction that the dispute in the case shall now be referred to arbitration in accordance with the arbitration agreement between the parties, .And for this purpose the file of the case shall be laid before the High Court for passing appropriate orders, in -accordance with the law.
43. In the normal course, the cost should follow the result but since the learned counsel for the appellant stated that he would not like to burden the respondent with costs, the parties are left to bear their own costs.
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