“8. The admitted position is that the appellant/defendant for the
first time appeared in the Court on 28th of March, 1998 when
the same was adjourned to 17-4-1998 for submission of the written statement and filing power of attorney. The written
statement was not filed as such suit was adjourned to 30-4-
1998 when the learned Presiding Officer was on leave. The suit
was accordingly adjourned to 13-5-1998 yet on the said date
written statement was not filed. Learned counsel for the
appellant/defendant requested for adjournment to file written
statement which was allowed and suit was adjourned to 18-5-
1998 but as the Presiding Officer was on leave, therefore the
suit was again adjourned to 30-5-1998 when application under
section 34 of the Arbitration Act was moved. From the above
proceedings in the Court it would be clear that the appellant
even after the receipt of notice of the plaint got three clear
dates for filing written statement but the application under
section 34 of the Act was moved on the fourth date. Above acts
of the appellant on number of dates stated above would show
that he intended to participate and defend the suit before the
Court. In this process he engaged a counsel and filed
adjournment application or requested for adjournment on the
above dates. We may also observe that test for determining
whether an act is a step in the proceedings or not, this Court in
the case of Pakistan International Airlines Corporation v. M/s.
Pak Saaf Dry Cleaners PLD 1981 SC 553 at page 559 in the
last para. has observed:---
"As would be seen from above, the mere existence of a
clause providing for arbitration does not bar a suit or other
legal proceeding in Court. It only entitles a party to have
the legal proceedings stayed. In order that a stay may be
granted under the provisions of this section, certain
conditions must be fulfilled. The party must take the
objection and apply for stay proceedings before taking any
step, for example, the filing 'of the written statement, that
is, before he placed his cards on the table. The provisions
of the section, further imply that the Court should, first of
all, examine whether the arbitration clause applies to the
dispute, and if it does, whether the nature of the dispute is
such that the ends of justice will be better met by the
decision of the Court than by that of private forum chosen
and agreed upon, and to which the parties had made
themselves bound to adhere and adopt in case that type of
dispute arose between them. The Legislature has, of
course, clearly implied in the language used in the section that the arbitration clause should be respected, but has also
made it abundantly clear that the party seeking to avail of
the provision of stay under this section must clarify his
position at the earliest possible opportunity, so as to leave
no manner of doubt that he wishes to have resort to
arbitration proceeding. If he hesitates in this regard, or
allows the suit to proceed in any manner, that conduct
would indicate that he has abdicated his claim to have the
dispute decided under the arbitration clause, and to have
thereby forfeited his right to claim stay of the proceedings
in the Court."
In para. 3 at page 564 of the above cited decision this Court has
observed:--
"In my opinion, the true test for determining whether an
act is a step in the proceedings is not so much the question
as to whether the party sought an adjournment for filing
the written statement although of course that would be a
satisfactory test in many cases but whether taking into
consideration the contents of the application as well as all
the surrounding circumstances that led the party to make
the application display an unequivocal intention to
proceed with the suit, and to give up the right to have the
matter disposed of by arbitration. An application of such
nature, therefore, should prima facie be construed as a step
in the proceedings within the meaning of section 34 and
the whole burden should be upon the party to establish
why effect should not be given to the prima facie meaning
of the application."
Used in Judgement of
Lahore High Court
Civil Revision
249999/18
0 comments:
Post a Comment