' This is a petition under Article 9 of the Provisional Constitution Order, 1981 whereby Mian Khuda Bakhsh and 3 others, the petitioners want this Court to declare the order, dated 3rd October, 1983 of the learned Civil Judge, respondent No, 1 and orders, dated 20th March, 1984 and 22nd March. 1984 passed by the learned Additional District Judge, Vehari to be without lawful authority and of no legal effect.
2. The facts leading up to this petition in brief are that on 24th August, 1983 Mian Ahmad Bakhsh, respondent No, 3 filed a suit for declaration against the petitioners and 5 others. The written statement was filed by the petitioners/defendants on 1st September, 1983. On 3rd September, 1983 Mian Barkhurdar, respondent No, 4 one of the defendants moved application to the effect that because of arbitration clause in the partnership deed, the suit could not proceed and was liable to be stayed under section 44 of the Arbitration Act. On 7th September, 1983, the Civil Judge allowing the application stayed the proceedings in the suit. On 8th September, 1983 Mian Barkhurdar, respondent No, 4 filed application requesting the Court to direct the parties to propose the names of Arbitrators. On this, the trial Court vide its impugned order, dated 3rd October, 1983 not only appointed two Arbitrators but also passed a stay order. Feeling aggrieved, the petitioners filed appeal which was dismissed by the learned Additional District Judge, respondent No, 2 on 20th March, 1984, on the ground that before filing the appeal, the petitioners/appellants therein had not served a notice on the respondents as required by Order XLIII, rule 3, C. P. C. After the dismissal of appeal, the petitioners herein filed fresh appeal alongwith application under section 5 of the Limitation Act for the condonation of delay in filing the appeal. The appeal was entrusted to the learned Additional District Judge, respondent No, 2 who dismissed the appeal as well as the application on 22nd March, 1984, hence this writ petition.
3. The learned counsel for the petitioners mainly contended that the trial Court after having stayed the proceedings in the suit vide its order, dated 7th September, 1983 had virtually took its hand off, the matter had become functus officio as such, had no jurisdiction to entertain application, dated 8th September, 1983 and to pass the impugned order, dated 3rd October, 1983 thereon. Further, the order, dated 3rd October, 1983 being a void order, the same could be challenged at any time through appeal and as such, the order of the learned Additional District Judge, respondent No, 2, dated 22nd March, 1984 dismissing the appeal as well as the application under section 5 of the Limitation Act was passed without lawful authority.
4. I have considered the arguments advanced by the learned counsel with care and have not been able to persuade myself to agree with him. I find that Mian Barkhurdar, respondent No, 4 (on whose request the proceedings were stayed) had complained before the trial Court that the parties were not evincing interest in the appointment of arbitrators and it was on that application that the trial Court on 3rd October, 1983 appointed two arbitrators and also passed a stay order. The material and important question for determination is as to whether after having stayed proceedings under section 34 of the Arbitration Act, the trial Court had become funaus officio ? My answer is in the negative because it is well-known in law that as a result of staying proceedings under section 34 of Arbitration Act, the suit does not become dead but it is in the state of suspended ,animation and if the Court finds that arbitration cannot smoothly go on due to obstinate attitude of either of the parties, it can pass any appropriate order. It I also well-settled that after having stayed proceedings under section 34 of the Arbitration Act, the Court ought not to renounce its powers and duties disposing of suit and shall exercise as much control as it can over the proceedings before the Arbitrators. It is its duty to see that the parties do not delay the disposal of the arbitration proceedings and to see as soon as possible they prosecute the proceedings. The principle underlying under section 34 of the Arbitration Act is to force by an indirect method, a contumacious party who had agreed to arbitration to go to arbitration therefore, in my mind, by appointing the two arbitrators, and passing stay order, the trial Court has just performed its legal duties in the circumstances of the case and has not exceeded its jurisdiction in any manner. As far the impugned order of the learned Additional District Judge, I find that the appeal was admittedly barred by time. It was within the discretion of the learned Additional District Judge to condone it or not. The learned Additional District Judge has applied his conscious mind to the facts and circumstance of the case and has given sound and cogent reasons for the dismissing the appeal as well as the application.
5. For what has been stated above, it is not a fit case for interference with the impugned orders while sitting in Constitutional jurisdiction. Dismissed in limine.