WANCHOO, C. J. - (1.) THIS is an appeal by the defendant under sec. 9 of the Arbitration Act.
(2.) A suit was filed by the plaintiff respondent against the defendant appellant and the 1st of March, 1953 was fixed for filing for written-statement. On that date the defendant appellant appeared and asked for time to file the written-statement and time was granted to him. Then 1st of April was fixed for filing the written-statement and on that date again defendant appellant for time for filing the written-statement and the next date fixed was 7th April, 1953. On that date, however, the defendant appellant instead of filing the written-statement filed an application under sec. 34 of the Arbitration Act for stay of proceedings. The main question which arose for determination in this case was whether the defendant could take advantage of sec. 34 of the Arbitration Act. The section provides that an application under it has to be filed before filing the written-statement or taking any other step in the proceedings. In this case no written-statement was filed up to the 7th April. But the question is whether the defendant appellant had taken any other step in the proceedings. We are of opinion that the fact that the defendant appellant applied twice for postponement in order to enable him to file the written-statement amounts to taking steps in the proceedings and, therefore, it was not open to him on the 7th of April, 1953 to apply for stay under sec. 34 of the Arbitration Act. It is enough to point out that practically all the High Courts are unanimous that an application by the defendant for adjournment for the purpose of filing a written-statement does amount to taking steps in the proceeding. In Roop Kishore vs. United Provinces Government, Lucknow (1) (AIR 1945 All.) it was held that prima facie an application for adjournment should be treated as a step in the proceedings within the meaning of sec. 34, though in some cases such an application may not be a step in the proceedings. Such a case is to be found in Premnath Pran Nath vs. Amba Pd. (2) (AIR 1941 Lah. 64 ). In that case the defendant on appearing in court on the first date of hearing informed the court that no copy of the plaint had been sent to him along with the summons and that unless he had a copy of the plaint he could not take further steps in the matter. Thereupon a copy of the plaint was supplied to him and the case was adjourned for filing a written-statement. On the next date the defendant applied for stay of proceeding. Obviously, in such a case even though it may be said that the case had been adjourned for filing the written-statement on the first date of hearing, there was no step taken by the defendant for the purpose. The next case is Sadhan Kumar vs. Sunil Kumar (3) (AIR 1948 Cal. , 59. ). In that case it was held that "the filing of an application for time is taking other steps in the proceedings as provided in sec. 34 and therefore, a person who has applied for time to file a written-statement is not entitled at a later date to apply for stay of proceedings under sec. 34. " In U. P. Govt. vs. Sri Harnath (4) (AIR 1949 All. ,) it was held that an application for time to file a written-statement is a "step in the proceedings" within the meaning of sec. 34. Learned counsel for the appellant relies on Chimanram, Motilal vs. Vandravandas (5) (AIR 1948 Bom. , 55. ). That case, however, if read carefully does not help him at all. That was a case on the original side of the Bombay High Court where a particular procedure prevails, namely, that attorneys for the parties exchange letters and if there is consent, the case is adjourned. In that case the plaintiff's attorneys wanted the case to be adjourned. They sent a letter to the defendants' attorneys for consent and such consent was granted without any condition. Thereafter the plaintiff's attorneys produced the letter of consent before the Porto-notary who granted time. The defendant then applied for stay under sec. 34 and it was objected that as the defendant's attorneys had unconditionally agreed to grant to time, a step in the proceedings had been taken and the defendant could not apply under sec. 34. The learned Judge repelled this contention. He distinguished it from an earlier case of Edward Radbone vs. Juggilal Kamalapat (l) and said that in that case a letter was produced before the court by the defendant for adjournment after having obtained the consent of the plaintiff's attorneys. It was held in Edward Radbone's case (1) (A. I. R. 1943 Bom. 228.) that as the adjournment had been obtained at the instance of the defendant, though the plaintiff consented to the adjournment, a step had been taken in the proceedings. This view is in consonance with the views of the other High Courts to which we have already referred. In Chimanram's case (2) (A. I. R. 1948 Bom. 55,), however, it was the plaintiff who wanted adjournment and had obtained the consent of the defendant and it was held that the step, if any, was taken by the plaintiff and not by the defendant. The second case relied upon by learned counsel for the appellant is Nuruddin Abdulhussein vs. Abu Ahmed Abdul Jalil (3) (A. I. R. 1950 Bom. 127. ). That case again was on the original side of the Bombay High Court. There, however, all that was done was that the defendant had filed appearance in court and it was urged that as it was unconditional and not "under protest" a practice which seems to prevail in Bombay High Court on the original side, the defendant could not apply under sec. 34 as he had taken a step in the proceedings by filing appearance. It was pointed out that appearance is compulsory for a defendant and mere appearance does not amount to a step in proceedings. The case, therefore, does not help the appellant.
(3.) OUR attention has been drawn to another reason given by the court for not staying proceedings. Even if that reason is incorrect, it would not matter, for the defendant by taking steps as we have already indicated, could not make an application under sec. 34, Arbitration Act, at all. His application was, therefore, rightly rejected and there is no force in this appeal. It is hereby dismissed under order XLI, rule 11, C. P. C. .;