- (1.) THIS is in form an appeal from an order of the learned Civil Judge of Rae Bareli dated 15-4-1953.
(2.) ON 29-5-1952. the first respondent filed a suit against the State Government, the Assistant engineer, Public Works Department, and two other persons. His principal claim in this suit was for the recovery of a substantial sum of money from the State Government as damages for the alleged breach of a contract entered into by him with the State Government on 25-2-1948, where under he was to supply 50,000 C. ft. of Kanpur lime to the Government at a certain price. The other reliefs sought by the plaintiff were not related to the claim founded on the alleged breach of the contract dated 25-2-1948, and with these reliefs we are not now directly concerned. On 6-10-1952, the first and second defendants filed what purported to be an application under ss, 32 and 34 of the Arbitration Act. They contended that under Clause 23 of the contract entered into between the plaintiff and the first defendant all disputes arising out' of the contract were to be referred to the Deputy Chief Superintending Engineer for the time being 'whose decision would be final, and that the Deputy Chief Superintending Engineer had in fact considered and rejected the plaintiff's claim. In these circumstances the defendants submitted that the suit was not maintainable under Section 32 of the Arbitration Act, and that under Section 34 of the same Act it was incumbent upon them to apply for the proceedings to be stayed. There was clearly some confusion in the mind of the person who drafted this application and the learned Civil Judge very properly required these defendants to state whether their application was to be deemed to be one under Section 32 or under Section 34. They elected that it be treated as an application for stay of proceedings under Section 34. That application was considered and dismissed by the learned Judge by an order dated 31-3-1954, on the ground that if the arbitration clause applied to the dispute arising out of the contract of 25-2-1948, there had been an award by the arbitrator. No appeal was filed against this order which has become final.
(3.) THE learned Civil Judge left undecided the question whether the arbitration clause applied to the dispute between the parties; his order of 31-3-1954, concluded as follows: "the plaintiff challenges the existence of the aforesaid arbitration clause in the bond. It is therefore necessary that this question should also be deeded before passing any further order. If the question is decided in favour of the plaintiff the suit will proceed and if it is answered in the affirmative the suit will stand dismissed under Section 32 of the Arbitration Act. Put up for disposal of this question on the 11th April. ";