R.M.Datta, J. - (1.) A short but an interesting point, though of a technical nature, is involved in this appeal. When the application for stay of the suit under Section 34 of the Arbitration Act, 1940 was moved, a technical point was taken on behalf of the respondent to the effect that the plaint, in connection with the suit which was sought to be stayed, could not be looked into, because a copy thereof was not annexed to the said petition for utay. The Joint petitioners thereto who consisted of the present appellant and one Messrs. Misrilall Dharamchand Private Ltd. realised their difficulties in the matter and asked for leave to withdraw the said application with liberty to make fresh application. The Court thereupon ordered : "Application withdrawn with liberty to make fresh application, cost to be paid by the applicants".
(2.) Since the provisions of the Code of Civil Procedure have been made applicable to arbitration proceedings under the provisions of the Arbitration Act, 1940, no dispute was raised nor any argument was advanced challenging the applicability of the provisions of Order XXIII of the Code of Civil Procedure in making the said order. Accordingly, this matter is being considered on the basis that Order XXIII of the Code of Civil Procedure applies in an application for stay of the suit under Section 34 of the Arbitration Act, 1940.
(3.) The order, as passed, in the said application did not mention why liberty to make fresh application was so granted. In other words, neither any formal defect nor any sufficient ground for allowing such fresh application was indicated. In the subsequent application which was made in pursuance of such liberty, however, the petitioner itself in para. 26 thereof narrated the circumstances under which the aforesaid order was made granting such liberty. The said paragraph 26 of the petition ran as follows: 'The said application mentioned in the last preceding paragraph hereof was contested by the respondent No. 1 and (inter alia) various technical objections thereto were raised. The said application came up for hearing before the Hon'ble Mr. Justice A. N. Ray on the 25tb February 1966 whereupon it was contended on behalf of the respondent No. 1 by way of a preliminary objection that the applicants were not entitled to refer at all to the plaint in the said suit or place the same before the Learned Judge on the ground that a copy thereof had not been annexed to the said petition nor -was reference thereto craved therein. His Lordship the Hon'ble Mr. Justice Ray was pleased to uphold the said preliminary objection on behalf of the respondent No. 1. In the facts and circumstances of the case your petitioner and the respondent No, 2 were advised to pray for leave to withdraw the said application. His Lordship was thereupon pleased to pass the following order: "Application withdrawn with liberty to make fresh application, cost to be paid by the applicant.";