- (1.) SHRIMATI Saroj Malik filed a suit against Amarjit Singh for his ejectment from Booth No. 55, Sector 19-C, Chandigarh. Amarjit Singh moved a petition under Section 34 of the Arbitration Act, 1940, praying that the proceedings in the suit be stayed, because there was an agreement between him and Shrimati Shakuntala Rani, the previous owner of this property, that such a matter would be referred to arbitration. Saroj Malik had purchased the property from Shakuntala Rani and, therefore, she was bound by that agreement.
(2.) THIS petition was contested by Saroj Malik saying that the defendant had taken steps in the proceedings in the suit before he filed the petition under Section 34 of the Arbitration Act, and therefore, the suit could not be stayed. A preliminary issue was framed to the effect--"whether the defendant-applicant had taken steps in the proceedings in the suit before filing this petition, if so its effect?" Both the Senior Subordinate Judge and the learned District Judge, Chandigarh, have found this issue in favour of Saroj Malik and dismissed the defendant's petition under Section 34 of the Arbitration Act. The defendant has come here in revision.
(3.) THE facts are not in dispute. Summons in the suit were issued to the defendant first for 17th March, 1970. But since no service was effected for that date on him, the plaintiff moved an application under Order 5, Rule 20, Civil Procedure Code, that the defendant be served by substituted service. Substituted service for 16th April, 1970, was then effected on the defendant by citation in a local newspaper, Mail Milap by name. The citation appeared in the paper dated 13th April, 1970. It is the case of the petitioner that 14th and 15th April, 1970, were holidays and the Court was closed on these two days. The petitioner appeared with his counsel before the trial Judge on 16th April, 1970, the date fixed in the case, and requested for an adjournment for filing a written statement. The case was adjourned for this purpose to 21st April, 1970. On that date, instead of filing the written statement, the petitioner moved the petition under Section 34 of the Arbitration Act. As already mentioned above, this petition was dismissed by both the Senior Subordinate Judge and the learned District Judge and the only question for decision in this case the request for an adjournment by the counsel for the petitioner on 16th April, 1970, for filing a written statement was "a step in the proceedings in the suit" within the meaning of this expression in Section 34 of the Arbitration Act. Learned counsel urged that the petitioner was not supplied with a copy of the plaint and, therefore, his counsel asked for an adjournment. It was not a conscious act on his part for getting an adjournment for filing a written statement, but it was a sort of routine request so that he might know the nature of the suit against him and then take appropriate proceedings on the next date fixed in the case. In support of his submission, counsel referred to a number of authorities; for example, M/s. Prem Nath Pran Nath v. Amba Parshad, AIR 1941 Lah 64; Punjab State v. Moji Ram, AIR 1957 Punj 223 and Nuruddin Abdulhusein v. Abu Ahmed Abdul Jalli, AIR 1950 Bom 127.;