' This civil revision is directed against the judgment of District Judge, Rahim Yar Khan, dated 18-9- 1984, whereby he set aside on appeal the judgment, dated 26-5-1984 of Senior Civil Judge, Rahim Yar Khan, staying the proceedings under section 34 of the Arbitration Act in the suit filed by the respondent.
2. Briefly the relevant facts are that the respondent, a construction company, obtained a contract from petitioner No.2 for constructing a four columns with four beams building. Later on the design of the building was changed under the instructions of petitioner No.2 and the respondent, therefore, constructed five column with five beams building. Thereafter petitioner No.2 issued letter, dated 20- 3-1984 directing the respondent to pay a sum of Rs. 87,868 as compensation for the loss occasioned to the Government due to the change in the design. Aggrieved of this letter/order the respondent filed instant suit for declaring the said letter as male fide and against the rules of justice. Alongwith the suit an application for an interim injunction was moved praying that petitioner No.2 be restrained from making the recovery of disputed amount till the final disposal of the suit. Notice for 18-4-1984 was given to the petitioner on injunction application. On 18-4-1984, it was adjourned to 30-4-1984 for filing of the reply and on that day petitioner No.2 moved application under section 34 of the Arbitration Act praying to stay the proceedings of the case because under clause 25-A of the agreement executed between the parties it had been stipulated that if any dispute would arise the matter would be decided by petitioner No.2 (Superintending Engineer, Provincial Building Circle, Bahawalpur) as an arbitrator. The respondent vehemently contested this application on two grounds i.e., firstly, that petitioner No.2 by seeking adjournment for filing the reply to the injunction application had taken step further in the proceedings and, secondly, the appointment of petitioner No.3 as arbitrator being violative of the principle that "no one can be the Judge of his own cause" hence the proceedings in the suit cannot be stayed. The learned trial Court after hearing arguments and considering the data available before it observed that the case was not adjourned at the petitioner's request, therefore, it cannot be deemed as step taken in the proceedings, so the petitioner was not debarred from invoking section 34 of the Arbitration Act seeking stay of proceedings. As for the second objection it observed that the agreement bears signatures of the parties which provides for arbitration by the petitioner No.3, therefore, the respondent cannot now take somersault on the pretext that he cannot be the Judge of his own cause. In this view of the matter, learned trial Court accepting the application of the petitioners under section 34 of the Arbitration Act stayed the proceedings till the decision of the dispute by the arbitrator. Feeling dissatisfied the respondent went in appeal. The learned District Judge deciding the appeal held that since Deputy District Attorney appeared for the petitioners and requested for adjournment, 'therefore, it was a step taken in the proceedings as held in the case of Board of Intermediate and Secondary Education, Sargodha v. Messrs Akhtar Brothers 1981 CLC 221 and that petitioner No.3 (Superintending Engineer) being himself party to the suit could not be appointed as sole arbitrator as it offends against the rule of justice that no person can sit as Judge of his own cause and consequently he set aside the order of learned Senior Civil Judge staying the proceedings under section 34 of the Arbitration Act. This decision has been challenged through instant revision.
3. I have heard learned counsel for the petitioners as well as for the respondent and also perused the record.
4. It is an admitted fact that agreement signed by both the parties contains clause 25-A which provides that in case of disagreement between the parties the dispute shall be referred to the Superintending Engineer (petitioner No.3) for arbitration. Section 34 of the Arbitration Act clearly provides that any party to the agreement containing arbitration, clause is entitled during the pendency of suit pertaining thereto to have legal proceedings stayed of course before filing written statement or taking any step in the proceedings.
5. Since both the parties to the contract had consciously agree and accepted that any dispute arising between them would be referred for arbitration to petitioner No.3, therefore, I find that the plaintiff respondent is estopped from subsequently challenging the arbitratio clause as being violative of the principle that nobody can sit as th judge of his own cause.
6. As for the second objection that, seeking of adjournment b Deputy District Attorney tantamounts to taking step in the proceedings, therefore, provision of section 34 of the Arbitration Act for stayin the proceedings cannot be invoked is also misplaced. The dictum laid down in Pakistan International Airlines Corporation v. Messrs Pak Saa Dry Cleaners PLD 1981 SC 553 provides complete answer to the problem in hand. I may quote here the instructive observation made b their Lordships of Supreme Court in this connection:- "In my opinion, the true tests for determining whether an ac is a step in the proceedings is not so much the question as t whether the party sought an adjournment for filing the written statement although of course that would be a satisfactory test in many cases but whether taking into consideration the content of the application as well as all the surrounding circumstances that led the party to make the application display an unequivoca intention to proceed with the suit, and to give up the right t have the matter disposed of by arbitration. An application o such nature, therefore, should prima facie be construed as a step in the proceedings within the meaning of section 34, an the whole burden should be upon the party to establish why effect should not be given to the prima facie meaning of th application. "
' Now applying the above test to the facts of the case I am of th considered view that there is nothing on record to show that on 18-4-1984 the Deputy District Attorney had requested for adjournment for filin reply to the injunction application. And even if it was so, it cannot be considered as indicative of petitioners' acquiescence to the method adopted by the respondent to get the dispute decided by the Court, or that the petitioners displayed submission to the jurisdiction of the Court, or had abdicated claim to have the matter decided in the manner provided in the arbitration clause of the agreement.
7. For all these reasons the impugned judgment of learned Appellate Court being NOT in consonance with the dictum laid down by th Supreme Court in case reported as 1981 SC 553 it is not sustainable and is, therefore, set aside and that of trial Court is restored. There shall, however, be no order as to costs.