' This revision petition arises out of a suit for declaration with consequential relief to restrain the respondents permanently from claiming to be exclusive owners of the properties in dispute and alienating or encumbering the properties or delivering their possession to any other person. The suit was registered on 2-7-1991 and put up before the Court on the same day. The Court ordered issuance of notice to the petitioners/defendants for 9-7-1991 and also passed an order for maintaining status quo. On 9-7-1991, the petitioners were not served and fresh notice was ordered to be issued for 21-7-1991. The status quo order was extended till then. On 21-7-1991, the petitioners entered appearance through Mr. Abdul Shakoor, Advocate. On the said date, the Presiding Officer was on leave and the case was adjourned for 7-9-1991. The petitioners were given a copy of the plaint and the application for temporary injunction and the case was adjourned to enable them to file their written statement and reply to the stay application. On 28-9-1991 the petitioners' learned counsel requested for time to file written statement and reply to the stay application. On the next date, i,e,, 13-10-1991 the petitioners filed an application under Order VII, Rule 11, C.P.C. For rejecting the plaint on the ground that the suit on behalf of an unregistered firm was not maintainable in view of the provisions of section 69 of the Partnership Act. The said application was rejected by the Court vide order, dated 12-12-1991 and the case was adjourned for 7-1-1992. On the said date, the petitioners' learned counsel specifically prayed for time to file written statement. The case was adjourned for 27-1-1992. On the said date, the petitioners filed an application under section 34 of the Arbitration Act. The said application was dismissed by the Court vide order, dated 25-4-1992.
The petitioners assailed the said order by way of an appeal before the learned District Judge, Lahore who dismissed it vide order, dated 13-6-1995.
2. The petitioners' learned counsel submits that the petitioners neither sought time to file written statement in the Court nor actually filed it at any subsequent date. According to the provisions of section 34 of the Arbitration Act an application under the said section can be filed if written statement has not filed by the defendant or no other steps in furtherance of the suit have been taken. According to him, the institution of miscellaneous application under Order VII, Rule 11 of the C.P.C. Or filing of reply to the application for temporary injunction are not steps in furtherance of the proceedings and that the parties have admitted the agreement, dated 18-9-1988 which contained an arbitration clause and the matter ought to have been referred by the Court to arbitration. In support of his contention, he places reliance on the judgment in the case of "Island Textile Mills Ltd., Karachi v V/0 Techno expert and another" (1979 CLC 307).
3. On the other hand, learned counsel for the respondents submits that the petitioners did not promptly file the application for referring the dispute to arbitration; that the petitioners had sought adjournment on 28-9-1991 and 7-1-1992 to file their written statement which were positive steps in the proceedings to the suit as held in the case of "Kh. Muhammad Aslam v.
Ch. Aftab Ahmad and 4 others" (1992 M LD 60); that instead of invoking the arbitration clause at the earliest, the petitioners wanted the Civil Court to decide the matter and for that reason they had even filed an application under Order VII, Rule 11, C.P.C., stating therein that the suit was barred in view of certain provisions of the Arbitration Act but waited for about six months before filing an application under section 34 of the Arbitration Act.
4. There is considerable force in the arguments raised by the respondents' learned counsel. The petitioners' conduct clearly showed that they desired to have the suit decided by the Civil Court and had taken steps for further progress of the suit. The petitioners after being served, appeared in the Court on 21-7-1991 when on their behalf Mr. Abdul Shakoor, Advocate filed his power of attorney.
On that date, the Presiding Officer was on leave and the case was adjourned for 7-9-1991. On the said date, the petitioners were given a copy of the plaint and the Court adjourned the case for 28- 9-1991 for filing of written statement and reply to the application for temporary injunction. The petitioners did not do the needful and their learned counsel specifically requested for an adjournment for filing of written statement and reply to the application for temporary injunction.
Accordingly, the case was adjourned for 13-10-1991. This act on the part of the petitioners clearly showed that they intended to have the suit decided by the Civil Court. They were fully aware of the fact that in the agreement there was an arbitration clause but they did not invoke the same and instead requested the Court to give them time to file a written statement. On the next date, i,e,, 13- 10-1991 they filed an application under Order VII, Rule 11, C.P.C. For rejecting the plaint on the ground that under the provisions of section 69 of the Partnership Act a civil suit in case of non-registered partnership for dissolution of partnership or accounts or realization of property of the firm was barred. This application was also intended to invoke the jurisdiction of the Court to reject the plaint and the petitioners did not opt to fall back upon the arbitration clause in the agreement. The said application was rejected by the Court on 12-12-1991 and the case was adjourned for 7-1-1992 for filing of written statement by the petitioners. Again, on 7-1-1992 the petitioners sought an adjournment for filing written statement in the Court. Thus, for a second time they laid bare their intention to have the controversy decided through the Civil Court. Thereafter, they were not competent to file an application under section 34 of the Arbitration Act. I am fortified in my view by the judgment in Kh. Muhammad Aslam's case (cited by the respondents' learned counsel) in which it was held as under:- "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 was further held:--- "The finding of the learned 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."
' In the case of Island Textile Mills Ltd., (relied upon by the petitioners' learned counsel) it was held that the question as to whether the defendant had taken steps in the proceedings will depend on the facts of each case and it would vary from case to case; that if from the conduct of the defendant it appeared that he had acquiesced to the suit and intended to contest the suit on merits before the Court, he could not thereafter file or press an application under section 34 of the Act; that if a defendant made his stand clear at the earliest opportunity that he wished that the dispute/differences be referred to Arbitration as per arbitration agreement then the mere fact that the defendant had contested an application for injunction or for the appointment of a receiver would not constitute a step in the proceedings.
5. In the present case, the petitioners had entered appearance in the case through their learned counsel on 21-7-1991 but filed the application under section 34 of the Act on 27-1-1992 with a delay of more than six months. During this period they had twice sought adjournments for filing written statement which were positive steps towards furtherance of proceedings in the suit. Therefore, the Courts below had rightly held that they were not entitled to institute an application under section 34 of the Act for referring the dispute to arbitration.
6. For the foregoing discussion, I do not find any merit in this revision petition which is dismissed, leaving the parties to bear their own costs.