N.M.Kasliwal, J. - (1.) THIS is an appeal by the defendants against an order of the learned Additional District Judge, Alwar, dated 1st May, 1978, whereby he rejected the application filed under Section 34 of the Arbitration Act and refused to stay the proceedings of the Civil Suit.
(2.) BRIEF facts giving rise to this appeal are that on 29th March, 1976, Pra-bhu Dayal s/o Bhonrey Lal and Raghu-nandan s/o Prabhu Dayal filed a suit for the dissolution of the firm Bhonri Lal Hiralal and for rendition of accounts of the firm and for partition of the movable and immovable properties and for separate possession. The plaintiffs also moved an application for appointment of receiver under Order 40, Rule 1, C.P.C. On 30th March, 1976, one of the defendants Om Prakash appeared in the trial Court suo motu and requested that he should be heard before passing any order on the application under Order 40, Rule 1. The copy of the application and the plaint was given to the defendant Om Prakash and the summons of the suit and notices of the application for appointment of receiver were ordered to be issued for the other defendants. The case was fixed for 15th April, 1976 for hearing arguments on the application for appointment of receiver. I deem it necessary to reproduce the order-sheet dated 30th March, 1976 as most of the arguments have been advanced on the basis of the order passed on 30th March, 1976:- ..(VERNACULAR MATTER OMMITED).. On 15th April, 1976, Om Prakash and two other defendants Moti Lal and Lalta Prasad filed an application under Section 34 of the Arbitration Act for staying the proceedings of the suit. The learned trial Court by its order dated 1st May, 1978, rejected the application filed by the defendants under Section 34 of the Arbitration Act. The defendants aggrieved against the said order of the trial Court, have come in appeal to this court. It is argued by the learned counsel for the appellants that the defendant Om Prakash cannot be said to have taken any other step in the proceedings as contemplated under Section 34 of the Arbitration Act, merely by appearing in the court on 30th March, 1976 in order that he might be heard before any ex parte order is passed on an application for the appointment of receiver. It is submitted that admittedly no written statement has been filed by the defendants and the defendant Om Prakash alone had appeared on 30th March, 1976 merely for the purpose of bringing it to the notice of the learned trial Court that no order may be passed on the application filed by the plaintiffs under Order 40, Rule 1, C.P.C. without hearing him. The defendants were not even aware of the nature and scope of the suit filed by the plaintiff as they had not been served upon with the copy of the plaint or application for appointment of receiver and as such it cannot be said by any stretch of imagination that the defendant had taken any other steps in the proceedings. It is further submitted that the defendants were entitled to the stay of the proceedings of the suit as the plaintiffs were hound to refer the dispute to arbitration in accordance with the arbitration agreement and that the applicants at the time when the proceedings were commenced and still remained, ready and willing to do all things necessary to the proper conduct of the arbitration. It has been further argued that by merely attending the court on 30th March 1976, as indicated above in the order-sheet dated 30th March, 1976, it cannot be inferred that the defendants had any intention to take part in suit or to waive the exercise of their right under Section 34 of the Arbitration Act. Reliance is placed on Sansar Chand Deshraj v. State of M. P., AIR 1961 Madh Pra 322, Dunichand Sons and Co., v. Fort Gloster Industries Ltd., AIR 1962 Cal 541, Anandkumar Parmanand Kejri-wala v. Kamaladevi Hiralal Kejriwal, AIR 1971 Bom 231, Union of India v. Hind Galvanizing and Engineering Co. Pvt. Ltd., AIR 1973 Cal 215, Queens College Kanetra v. Collector, Varanasi, AIR 1974 All 431, Sat Pal Anand v. R. K. Ahuja, AIR 1973 Punj and Har 197, Biswanath Rungta v. Oriental Industrial Engineering Co. Pvt. Ltd., AIR 1975 Cal 222, Joharimal v. Fatehchand, 1960 Raj LW 84 and State of U. P. v. Janki Saran Kai-lash Chandra, AIR 1973 SC 2071.
(3.) IT is also submitted by the learned counsel for the appellants that there was no complicated question of law involved in the suit and even a question of law can be decided by the arbitrator and the learned trial Court was wrong in refusing to stay the proceedings of the suit on this ground. Reliance is placed on Firm Chimanram Mothilal v. Firm Van-dravandas Gordhandas, AIR 1948 Bom 55, and Chandanmull Jhalaria v. Clive Mills Co. Ltd., AIR 1948 Cal 257. Mr. Agrawal learned counsel for the plaintiff-respondents has argued that even the action of the defendant Om Prakash of contesting the application for the appointment of receiver will be considered as taking any other steps in the proceedings within the meaning of Section 34 of the Arbitration Act. According to the learned counsel even if the defendant Om Prakash had not filed any written statement, he had appeared having knowledge of the suit filed against him and he had received the copy of the plaint and application on 30th Mar. 1976 with an intention to file a written statement and his prayer for not passing any ex parte order on the application for appointment of receiver without hearing him should be considered a clear act of estoppel or submitting to tbe jurisdiction of the court for the purpose of adjudication of the merits of the controversy in the suit. He placed reliance on P. Gunnu Rao v. P. Thiagaraja Rao, AIR 1949 Mad 58-2, Amritraj Ko-thari v. Golecha Financiers, AIR 1966 Cal 315, Abdul Quddos Dost Mohammed Momin v. Abdul Gani Abdul Rahman, AIR 1954 Nag 332, Deluxe Film Distri-butors Ltd. v. Sukumar Kumar, AIR i960 Cal 206, Union of India v. Hansraj Gupta & Co., AIR 1957 All 91, S, Ramalingam Chettiar v. S. Sarveswaran, AIR 1977 Mad 189, Nandipati Kami Reddi v. Nandipati Padma Reddy, AIR 1978 Andh Pra 30, and Kunte Malla Reddy v. Soma Srinivas Reddy, AIR 1978 Andh Pra 289.;