' This appeal is directed against order dated 6-12-1990 passed by Senior Civil Judge, Lahore whereby application filed by the appellant under section 34 of the Arbitration Act, 1940, seeking the stay of the suit has been dismissed.
2. I have heard learned counsel for the appellant and perused the certified copies of the record of the learned trial Court appended with the appeal.
3. The learned trial Court held that the appellant having sought various adjourments in the suit for filing written statement had taken steps in the proceedings and could not seek the stay of the suit on the ground that there was an Arbitration Agreement between the parties to refer the dispute raised in the suit to arbitrators.
4. The main burden of argument of the learned counsel for the appellant presented in support of this appeal was that the adjournments were taken by the appellant for filing replies to the applications filed by the respondents/plaintiffs with the suit and no request for adjournment was made for filing written statement, therefore, the finding of the learned trial Court that the appellant had taken steps in the proceedings are based on misreading and misconstruction of the record.
The submission has no force. The certified copy of the order-sheet placed on the file shows that the suit was filed on 25-6-1990 by the respondents which was ordered to be registered and notice as well as summons for issues were ordered to be sent to the defendant/appellant for 2-7-1990. Lt is manifest from this order that the learned trial Court did not record separate order on the misc.
Applications moved with the suit and in the suit itself. On 2-7-1990 the appellant's counsel appeared and the learned trial Court adjourned the case to 10-7-1990 for. Filing replies. On 10-7- 1990, the learned trial Court observed that replies were not ready and a request was made for filing replies therefore, the case was adjourned for that purpose and arguments to 21-7-1990. The next order passed in the case was passed on 14-11-1990 which shows that the record was received on the said date by the learned trial Court from the Court of learned District Judge. Leamed counsel for the appellant when questioned stated that an application was made by the appellant before the learend District Judge for transfer of the suit to some other Court and it was in connection with the said application that the record was summoned by the learned District Judge which remained pending before him till 14-11-1990. On 14-11-1990 the leamed trial Court passed an order in the presence of the learned counsel for the parties for adjournment of the case to 24-11-1990 for filing replies and arguments. On 24-11-1990 the appellant again made a request for grant of further time for filing replies and the case was adjourned for that purpose on 29-11-1990. On 29-11-1990, an application was moved on behalf of the appellant under section 34 of the Arbitration Act for staying 1he proceedings in the suit, which has been rejected by the impugned order. The expression 'replies' used by the learned trial Court in various orders as argued by the learned counsel for the appellant in the facts and circumstances of this case cannot be construed to mean that a request was made only for filing reply to the misc. Applications and not for written- statement merely because the word written-statement was not used. As 1 have already observed as is apparent from the certified copies of the order-sheets and which fact was also n6t disputed by leamed counsel that the trial. Court from the very beginning passed consolidated orders both in regard to suit as well as the applications. Separate orders were not passed admittedly on the applications moved with the suit, therefore, the expression 'replies' used in the various orders for filing which requests for adjournments were made related to replies to the applications as also the written-statement. The appellant if wanted to enforce arbitration clause in the agreement regarding the disputes raised in the suit was not required to seek adjournments and an application under section 34 of the Arbitration Act could very well be made promptly. It is also clear from the application made by the appellant under section 151, C.P.C, seeking amendment in the application under section 34 of the Arbitration Act in which he clearly stated that on 14-11-1990 the suit was adjourned for filing written-statement from which it is manifest that the appellant was in no manner in doubt that the case had been got adjourned by him for filing written-statement.4-A.
Learned counsel for the appellant placed reliance on judgment reported as Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners (PLD 1981 SC 553) to argue that mere request for adjournment of the case for filing written-statement was not in all circumstances a step in the proceedings within the contemplation of section 34 of the Act. The facts of that case are substantially different and the rule laid down in the said case in those circumstances does not advance the case of the appellant in peculiar circumstances of his case. In the reported judgment the facts were that the learned counsel for appellant/Corporation made out a case that while making a request/applications for adjournment of case for filing written-statement he had not been given instructions and was not aware of the contents of the agreement till such time that law officer of the appellant/Corporation returned from abroad in June 1972. The learned counsel for the appellant was handed over the files by the said law officer and gave him necessary instructions.
The correctness of these facts forming the background of the said case as observed in the judgment itself was not denied.
5. In the present case it was not the case of the appellant that he was prevented from seeking instructions from the appellant or that the appellant due to some unavoidable circumstances not within his control could not give him the instructions in the matter, and brought to his notice that there was an agreement of arbitration between the parties. The conduct of the appellant was rather that delay as much as possible may be caused in the disposal of the suit. The appellant made application for transfer of the suit in which much time was consumed.
6. An application was made on behalf of the appellant under section 151, C.P.C, for permission to amend the application made under section 34 of the Arbitration Act to the effect that the appellant could not contact the appellant to take instructions in the suit which was rightly rejected by the learned trial Court. I am also of the considered view that this application was an attempt on the part of the appellant to bring the facts of the present case as far as possible at par with the facts of the reported judgment mentioned above on which reliance was placed so as to derive benefit from the rule laid down on the basis of facts of that reported case by the Supreme Court.
7. The finding of the leamed trial Court that the appellant sought adjournments for filing written- statement and as such had taken steps in the proceedings, therefore, the application under section 34 was not maintainable does not suffer from any illegality. The appeal fails which is hereby dismissed in limine.