- (1.) :- This Rule is directed against an order dated 18th February, 1975 passed in Misc. Appeal No. 3 of 1973 by the learned Subordinate Judge, Jalpaiguri dismissing the appeal of the petitioner filed against the order passed by the learned Munsif, Jalpaiguri in 0. C, Suit No. 24 of 1971 allowing the application for stay made under section 34 of the Arbitration Act. A dispute arose in respect of the dealership of the petitioner under the opp. party and the petitioner instituted a suit on 8th February, 1971 being O. C. Suit No. 24 of 1971 before the learned Munsif at Jalpaiguri for declaration that the petitioner had vested right to carry on business as dealer of the opp. party corporation and for mandatory injunction restraining the defendant from giving effect to the letter dated 22nd January, 1971 whereby the opp. party revoked the licence and/or terminated the agreement in so far as the petitioner's dealership of petrol and high speed diesel oil is' concerned, in the said suit the petitioner filed an application for injunction under Order 39 rules 1 and 2 of the code of Civil Procedure on 8th February, 1971 praying for a temporary mandatory injunction requiring the defendant corporation to perform their part of the contract by supplying the products or a temporary injunction restraining the defendant corporation from doing any act which may affect or interfere with the petitioner's trade as a dealer and from giving effect to the defendant's letter dated ' 22nd January, 1971 until the disposal of the suit. A notice was issued on the defendant to show cause within three days from the date of service thereof as to why the plaintiff's petition for temporary injunction should not be allowed. The temporary injunction matter was heard by the learned Munsif in presence of both time parties and the learned Munsif was pleased to grant ad interim injunction against the defendant restraining the corporation from giving effect to the letter (Hated 22nd January. 1971. till the disposal of the plaintiff's petition for temporary injunction.
(2.) IN this connection, certain dates are very relevant. As already stated, the suit was filed on 8th February, 1971. After receipt of summons the defendant appeared on 5th March, 1971. On 6th March an application. was made on behalf of the defendant for time to file an application under section 34 of the Arbitration Act. The application for injunction was heard on 18th March, 1971 and injunction was granted, on 23. 3. 71. The defendant's petition dated 6. 3. 71 praying for time to file a petition under section 34 of the Arbitration Act was heard and the learned Munsif order that the petition be kept on the record as no order was called for on the said petition, the defendent being at liberty to file such petition according to law. On 8. 4. 71 an application was made on behalf of the defendant praying for time to file written objection to the application for injunction made on behalf of the plaintiff.- Further time was prayed for again by the defendant ion 22nd April, 1971. Prior to that on 8. 4. 71 the defendant filed a petition under section 34 of the Arbitration Act after serving a copy of the same on the plaintiff. The learned Munsif fixed 8. 6. 71 for hearing the application under section 34 of the Arbitration Act. On 6th August, 1971 the defendant filed a written objection' supported by an affidavit against the injunction petition filed by the plaintiff. On 29th march, 1973 defendant's petition for stay of the suit under section 34 of the Arbitration Act was heard and the learned- Munsif allowed the application and ordered that tine suit be stayed under section 34 of the Arbitration Act. Against this order the plaintiff went up in appeal and the same was dismissed by the learned Subordinate Judge, Jalpaiguri. Against the said dismissal order the plaintiff-petitioner has come up under section 115 of the Code of Civil Procedure. It is contended on behalf of the petitioner that the suit should not be stayed at the instance of the defendant inasmuch as the defendant Corporation having taken steps in the suit and submitted to the jurisdiction of. the court Was debarred from getting any relief by way of stay under section 34 to the Arbitration Act. The steps taken by the defendant are, as I have already indicated above are that the defendant appeared and participated in the injunction matter on 18th March,. 1971 although prior to that on 6th March, 1971 an application was filed on behalf of the defendant for time to file an application under section 34 of the Arbitration Act. Again on 8th April," 1971 the defendant opp. party made an application for time to file objection to the injunction matter; These two acts on the part of the defendant constituted overt acts showing a plain intention on his part to contest the suit that is, to proceed with the suit and; therefore, it should not be permitted to get stay of the suit under section 34 of the Arbitration Act. What constitutes taking steps in a suit is explained in a case relied upon by the learned Counsel appearing for both sides reported in AIR 1973 SC 2071 (State' of Uttar Pradesv' Vs. Janki Saran Kailssh Chandra ). "to enable a defendant to obtain an order staying the suit, apart from other conditions mentioned in section ' 34 of the Arbitration Act, he is required to present his application praying for stay before filing his written statement or taking any other step in the suit proceedings". "taking other steps in the suit proceedings connotes the idea of doing something in aid of the progress of the suit or submitting to the jurisdiction of the court for the purpose of adjudication on the merits of the controversy in the suit. "
(3.) THE learned Advocate for the opp. party has further relied upon a decision of this court reported in AIR 1975 Calcutta 222 (Biswanath Fiungta Vs. Oriental Industrial Engineering Co. ). In that case a question arose as to whether the defendant had taken steps in the proceeding thus disentitling him from asking stay under section 34 of the Arbitration Act. After the filing of the suit and before a copy of the plaint was served upon the defendant the plaintiff made an application for injuction restraining the defendant No. 1 from operating the bank account with their Allahabad Bank and obtained an order of ad interim injuction. The matter appeared as a New Motion and on 31st May, 1974 after the order of injunction was made absolute, restraining the defendant No. 1, Counsel mentioned on behalf of the petitioner and (defdt.) and prayed for an order that the Allahabad Bank be restrained from allowing the plaintiff from operating the bank account and that was done on 31st May, 1974, From these facts it was argued that the defendant had clearly showed inclination to proceed with the suit by taking steps in the proceeding and hence was disentitled from asking for a stay under section 34 of the Arbitration Act, 1940. Sabyasachi Mookarji, J. following the principles laid down in AIR 1973 SC 2071 cited above, held that in the facts and circumstances of the Case, the7step taken by the defendant did not show a conduct in aid of the suit or any submission to the jurisdiction of the court for the purpose of adjudication of the controversy in the suit. "the order of injunction having been made in favour of the plaintiff, what the defendant did was to circumscribe it to such an extent that the rights of the parties be protected until the disputes are decided". Therefore, it could not be said that the defendant had taken any step in the proceeding.;