P L D 1957 (W (PLP)

CONSTANTINE, J.

A suit was filed by the respondents upon contracts for the delivery of wool. The appellant according to the plaintiffs had failed to ship the stipulated amount of wool. Upon the filing of this suit, a writ under Order VI, rule 2 was issued to the appellant. His advocate filed a Vakalatnama and under rule 156 (2) Sind Chief Court Rules (Original Side), the Registrar (O. S.) ordered written statement within a fortnight. This rule is in the following words "(2) if the summons had been issued for settlement of issues, the defendant shall be directed to file his written statement within fourteen days of such appearance, unless the Registrar (O. S.71 for sufficient reasons, allows more than fourteen days' time for the purpose." The appellant did not file a written statement, but instead applied to the Court under section 34 of the Arbitration Act for a stay of the suit. This application was resisted on the ground that the appellant had taken a step in the proceedings, It was argued and this argument found favour with the learned trial judge, that since the appellant allowed the Registrar (O. S.) to pass the order regarding filing the written statement, this was an equivalent of a step in the proceeding. The learned Judge's words were 'I think that in these circumstances to acquiesce in and suffer an order requiring the written statement to be filed is to take a step in the proceedings within the meaning of the section'. The learned judge relied upon two English Cases which have been read to us by Mr. Jamiatrai. They are County Theatres arid Hotels Ltd. v. Knowles ((1902) 1 K B 480) and Richardson v. Le Maitre ((1903) 2 Ch. 222). In these two cases there had been a writ directed to the defendant. He appeared and in accordance with what appears to be the English practice, the Master issued directions to the parties and one of these directions was that the plaintiff should deliver a statement of claim. We do not know the English practice, but it appears that unlike the practice here a copy of the plaint, in those days at least, was not attached to the writ. In one of those cases there was also a further order against the plaintiff, but in Richardson's case the only order against the plaintiff was the filing of the statement of claim, and the defendant was ordered to file his written statement. Mr. Abul Khair on behalf of the appellant has relied upon a decision of Tendolkar, J., in Nuruddin v. Abu Ahmed (A I R 1950 Bom. 127), in which other authorities have been quoted by the learned judge. He has cited the case of Ives v. Willams ((1894) 2 Ch. 478), and has quoted the observations of Lindley, L. J., in that case. There the plaintiff had issued a writ and the defendant entered appearance and by a formal document required the statement of claim. Lindley, L. J., held that this was not a step in proceedings precluding the defendant from making an application for stay. He said that the authorities show that a step in the proceedings meant something in the nature of an application to the Court. Later there was a House of Lords case Ford's Hotel v. Bartlett ((1896) A C 1), and Tendolkar, J., has quoted the observation of Lord Shand, "This appears to me to have in effect been an abandonment of the proposal to have the subject of the cause disposed of by arbitration." This was echoed by Ridley, J., in Austin v. S. Bowley ((1913) 108 L T 921), The learned judge stated " In my opinion what is intended by a step in the proceedings is some step which indicates an intention on the part of a party to the proceedings that he desires that the action should proceed and has no desire that the matter should be referred to arbitration". The requirement therefore, of Lindley L. J., that there should be something in the nature of an application should also take out a summons or something of that kind which is in the technical sense a step in the proceedings, has been extended to anything which shows an intention of a party that he desires that the action should proceed. The two cases which have been mentioned at the beginning of this judgment were not referred to by Tendolkar, J. They are in our opinion to be considered from the point of view that where an order is passed against the other side and you stand by and allow that order to be passed you should be treated as having applied for that order. But we do not think that such a consideration can be attached to an order which is passed against oneself and which is passed as a matter of course and against which one cannot protest. Rule 156 in our opinion makes it obligatory for the Registrar (O. S.) to pass an order directing a written statement within a fortnight further period upon the appearance of they defendant and the defendant has nothing to do with the making of that order. We, therefore, consider that the appellant is justified in this appeal in so far as it should have been held that he had not taken a step in the proceeding. Mr. Jamiatrai, however, contends that in this case the application for stay was mala fide. The applicant resides in Karachi whereas the venue of the arbitration proceedings according to the arbitration clause is New York. No steps had been taken by the defendant to obtain arbitration. We asked Mr. Abul Khair what advantage his client would secure by having the arbitration in New York and his only reply was that business men would hear the matter, and that the relations between the parties would be sweeter. Furthermore, he said that since the plaintiff had insisted upon an arbitration clause for his advantage then the defendant was equally entitled to rely on the arbitration clause. We think however, that in such a matter we ought to consider how the dispute between the parties can be most readily resolved. The plaintiff resides here and we doubt very much that he could find representation in New York, An award made in New York would have to be filed in this Court for enforcement. We think that the application was merely a device to delay the evil day that is, the decision of the case. We therefore dismiss the appeal with no order as to costs. A.H. Appeal dismissed.