- (1.) THIS is an application for revision of an order passed by the learned Judge, Small Cause Court, lucknow. The material-facts lie within a short compass :
(2.) A suit for recovery of rent for certain premises was instituted by Shekhar Chandra Jain against the Union of India, Defence Department. Shekhar Chandra Jain died during the pendency of the suit and the names of his legal representatives were substituted in his place on the record. The suit was instituted on 13th May 1950. 18th August 1950 was fixed for final disposal of the case. On that day the Additional Government Pleader for the U. P. Government appeared before the court and prayed for an adjournment. The application made by him stated that as he had not received a copy of the plaint or other papers from the office concerned, he might be granted two months' time for filing the written statement. This application was allowed and time was granted till 13th October 1950. On that day an application was made by the plaintiff inviting the Court's attention to Section34 of the Arbitration Act 10 of 1940. It was contended that as the application for adjournment of the case to enable the defendant to file a written statement made on 18th august 1950, was a step in the proceedings the suit could not be stayed. The matter was argued before the learned Judge. Relying on two cases of this Court, -- 'united Provinces Government v. Sri Har Nath', AIR 1949 All 611 and -- 'roop Kishore v. United Provinces Government, lucknow', AIR 1945 All 24 he held that the proceedings could not be stayed. Dissatisfied with this decision, the present revision application has been filed. It was contended by the learned counsel for the Union of India that it was held by their lordships, Dar and Sinha JJ. in -- 'roop Kishore's case', (AIR 1945 All 24) that it was possible to hold in some cases that an application for adjournment of a case to enable the defendant to file a written statement was not a step in the proceedings within the meaning of Section34 of the Act and his case was one of that kind. He invited my attention to the statement made by the government Pleader in his application of 18th August 1950, that he had not received a copy of the plaint and other papers from the office concerned. It was contended that in view of this clear statement the Government Pleader could not be in a position to say what defence would be taken and it should not be taken that by making that application he had acquiesced in the case being decided by the Court and not being referred to arbitration.
(3.) HAVING heard the learned Counsel for the parties, I am of opinion that the case is covered by the later decision of this Court in -- 'united Provinces Government v. Sri Har Nath', AIR 1949 all 611. Malik C. J. and Mushtaq Ahmad J. referred to a number of cases including that of -' prem Nath Pran Nath v. Amba Parshad', AIR 1941 Lah 64. Their Lordships observed : "the Lahore High Court appears to have been reluctant to accept this view and seems to have indicated that an application for extension of time to file a written statement is not such a 'step in proceedings' as contemplated by those words of Section34, Arbitration Act. In the first place that case is in our opinion distinguishable from the present one, inasmuch as there the defendants had not received a copy of the plaint filed in Court. That being so, he was not in a position to know anything about the nature of the suit filed, so as to realise that the suit related to a matter about which there had been an agreement for arbitration between the parties. " They further observed: "in any case we feel that the preponderance of authority is in favour of the view taken by this court in -- 'roop Kishore v. U. P. Government, Lucknow', AIR 1945 All 24. ";