P L D 1961 (W (PLP)

(v) That this suit was originally instituted at Lahore, where steps were taken by the defendant to defend it and that no objection was raised there on the basis of the arbitration clause. (vi) That the defendant had formerly referred the question of restitution of conjugal rights to an arbitrator who had declined to consider and decide it.

3. In order to appreciate the above objections it is necessary to state the facts which form the background of this suit, and then to state the grounds of this suit against that back ground. The facts are that the parties have entered into a contract on the 29th of September 1958 in which there is a clause that "any dispute between the parties shall be decided by Messrs Abdul Majid Shaida and Shah Jamil Alain". This clause was amended by another agreement dated the 24th of October 1958, to eliminate the names of the arbitrators and to provide for arbitration by one arbitrator of each of the two parties and an umpire to be appointed by the arbitrators. Certain disputes were referred to arbitration in 1959, and Shah Jamil Alain purporting to act as the arbitrator of the parties had given an award on the 16th of June 1959. It was filed in this Court on the 23rd of June 1959, to be made a rule of the Court. The arbitrator had held inter alia that disputes relating to the restitution of conjugal rights could not be decided by him; therefore, the defendant has filed Suit No. 135 of 1959 for restitution of conjugal rights on the 14th of July 1959. The plaintiff has likewise filed this suit for dissolution of marriage. It was first instituted on the 15th of June 1959, at Lahore. The defendant appeared in the Court of the Senior Civil Judge at Lahore and "among other objections" raised the objection "that the Courts at Lahore do not have the jurisdiction to try this suit as framed." The learned Judge framed an issue on this objection and upholding it returned the plaint to the plaintiff on the 16th of January 1960 for pre senting it in a competent Court.

4. Continuing the statement of facts in chronological order, I may mention here that the award which was filed in this Court has been set aside on the 25th of February 19(0, and a letters patent appeal has been preferred against it on the 16th of March 1960. It is pending for decision by a Division', Bench of this Court.

5. Resuming the history of this suit I should mention that the plaint which was returned at Lahore was presented in a District Court at Karachi on the 4th of May 1960, along with an application for amendment and an amended plaint, but was returned on the ground that the presentation was not proper. It was then presented in this Court, but was returned because the value of the suit was below the pecuniary jurisdiction of this Court. It was, therefore, presented again in a District Court of Karachi. A summons was issued to the defendant who did not appear in spite of service and, therefore, the Court ordered on the 1st of August 1960 that the suit be proceeded ex parte and fixed a date for production of ex parte proof. The defendant applied on the same date under Order IX, rule 7, C. P. C. for setting aside the ex parte orders. He made another application on the 9th of August 1960, under section 34 of the Arbitration Act for getting the proceedings stayed. The appli cation for setting aside the ex parte orders was accepted on the 28th of August 1960. The plaintiff then applied to this Court for withdrawal of the suit from the District Court and for hearing it along with the suit of the defendant for restitu tion of conjugal rights, namely suit No. 135 of 1959. The application was granted by consent on the 12th of December 1960 by the following order:‑ "By consent suit No. 1023 of 1960 pending in the Court of III Sub‑Judge Karachi is transferred to the High Court.. I his suit will be heard along with suit No. 135 of 1959 pending in this Court." Today the application before me under section 34 of the Arbitra tion Act, 1940 is the same which was filed in the Court of the Sub‑Judge, Karachi.

6. As disclosed above, this is a suit for dissolution of marriage. The grounds on which it has been brought are summarised in paragraph 7 of the plaint, which are as follows:‑ "(a) `Lian'; (b) Habitual cruelty to which the plaintiff has been subjected by the defendant; (c) The defendant's addiction to alcohol resulting in his leading an infamous life and calculated to render married life miserable and intolerable; (d) Defendant's conduct in preventing the plaintiff to exercise her legal rights over her property."

7. It is clear from the above statement of facts that the first objection, out of six which have been enumerated above, has no force, because the ex parte orders on which reliance has been placed on behalf of the plaintiff, have been set aside by the learned Sub‑Judge, Karachi himself. The stand taken in the second objection that the plaintiff has repudiated the agreements does not by itself constitute a valid objection because bare repudiation of a contract by a party does not make it ineffective. The allegations of duress and misrepresentation have been made in the objection without giving necessary particulars. The plea taken in the objections in this regard is as follows:‑ "That the alleged agreements dated 22nd September 1957, and 24th October 1958, the true copies of which have been supplied to the petitioner, or if there be any other, all of them are invalid, illegal and void and have been procured under duress and coercion, misrepresentation and false pretences after practising fraud in collusion with others while on sick bed without properly understanding or explaining the same, and the same has no binding effect." In the absence of particulars of duress and misrepresentation it is difficult for me irrespective of the omission of the defendant to raise this objection, to reasonably uphold the allegations. Moreover, these allegations are of a basic character and, therefore, they should better be the subject‑matter of proceedings under section 33 of the Arbitration Act, 1940, rather be an incidental defence g to an application under section 34 of the Act. They are not the subject‑matter of this suit and I am not bound while, deciding this application either to go elaborately into the question of fraud and undue influence, or to stay the proceed ings of this suit on its account. I find support to this view in Bhagwan Das v. Atmasing (A I R 1945 Bom. 494).

8. The third objection that a claim for dissolution of marriage cannot be referred to arbitration is not free from c difficulty, but it has not been argued before me with due pre paration and care. I find that the Lahore High Court appear to have consistently taken the view that the question of restitu tion of conjugal rights as a whole cannot be referred to arbitration though its component parts may be so referred, because the discretion exerciseable in granting such a decree is a discretion of the Court which cannot be delegated to arbitra tors. Reference in this connection may be made to:‑ (1) Hira v. Dina (1895) 37 P R 1895; (2) Kalabatu v. Prabh Dial A I R 1918 Lah. 357 (2) (3) Faiz Ali v. Mst. Ashraf Khalun A I R 1929 Lah. 177; (4) Malka v. Sardar A I R 1929 Lah. 394; (5) Ishar Das v. Mst. Viran Bai A I R 1930 Lah. 707; (6) Nathu v. Sarnun A I R 1933 Lah. 532 (1). I further find that a distinction has been drawn by that Court between ordinary judicial discretion and the discretion exerciseable in restitution of conjugal rights; vide Hari Shanker v. Amraoti (A I R 1944 Lah. 280 at p. 281). The view of that Court does not appear to me to have been shared by the Sind Judicial Commissioner's Court see Umar v. Mst. Dadli, (A I R 1926 Sind 128) Isribai v. Pevibai (A I R 1930 Sind 195) by the Oudh Chief Court see Rup Narain v. Mst. Nandrani (A I R 1934 Oudh 494) by the Peshawar Judicial Commissioner's Court see Mst. Kunti Devi v. Bhola Ram (A I R 1941 Pesh. 43) and by the Madras High Court see Nalla Ramudamma v. Nalla Kasi Naidu (A I R 1945 Mad. 269). The reasons advanced in the judgment of these Courts are that there is nothing in the legal provisions under which disputes are referred to arbitration to exclude from the scope of arbitration disputes relating to the conjugal matters and personal relations and that the analogy of Insolvency Act and Divorce Act is not correct. Moreover, an award becomes a decree only when it is made a rule of the Court. No arguments have been addressed to me on the basis of the Dissolution of Muslim Marriages Act, 1939, or the Shariat Act. In these circumstances, I am hesitant to express any opinion on the soundness of this objection of the plaintiff, and do not express any opinion because I find that it is unnecessary in this case to do so. It is unnecessary because the next three objections of the plaintiff have sufficient inducement in them to enable me to make up my mind that the proceedings of this suit should not be stayed. Firstly, the defendant has filed a suit in this Court for restitution of conjugal rights which is closely linked up with this suit. The reason for its institution is that the arbitrator had held that disputes relating to restitution of conjugal rights could not be referred to arbitration. Secondly, the order made on the 16th of January 1960, by the learned Senior Civil Judge at Lahore shows that other objections besides the objection to the jurisdiction of that Court were raised before him. We do not know what they were but obviously they were more than two and were not limited to the jurisdiction of that Court. The plaintiff's affidavit shows that they did not include an objection under section 34 of the Arbitration Act, 1940. In order to emphasise their adverse effect on this application and as an independent argument, counsel for the plaintiff has pointed out that the defendant's counsel had also consented to the withdrawal of this suit from the lower Court to be "heard along with suit No. 135 of 1959, pending in this Court." This consent was given without reservation, though this applica tion under section 34 of the Arbitration Act, 1940 had already been made in the lower Court. The unconditional consent in all reasonableness should be taken to mean agreeableness to the trial of this suit on merits, in spite of the application for stay. As the consent was given after making this application, it may not be technically fatal under section 34 to the prayer fort, staying the proceedings of this suit, but should mean waiver or at least absence bf due regard for this application. This negligent conduct induces a belief that the objections that were raised at Lahore' might have been raised similarly negligently and could have been a "step in the proceedings" in terms of section

34. As those objections are not before me I do not hold that they have debarred the defendant from pressing for stay but I do feel inclined, for purposes of exercising my discretion, to think that the defendant has not been keen on getting the proceedings stayed. Moreover, his keenness in, this respect would have been inconsistent with the institution of his own suit in this Court because his suit and the suit of the plaintiff are more or less inter‑dependent. As he has brought his suit in this Court accepting the decision of the arbitrator that a claim for restitution of conjugal rights could not be referred to arbitration, he should concede the same forum to the plaintiff, particularly because he has agreed that the two suits should be heard together.

9. My conclusion accordingly is that this is a fit case in which stay of the proceedings should not be granted. The application is dismissed with costs.