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D.S. Tewatia, J.—The learned Single Judge before whom the present revision petition was listed for motion hearing after admitting the same referred it to the Division Bench, for he was of the opinion that the decision of this Court reported as Messrs William Jacks & Company (India) Limited. Bombay v. The Saraswati Industrial Syndicate Limited (1984) 86 P. L. R. 489, which was cited before him in justification of admitting the case for full hearing required reconsideration in view of the Supreme Court decision in Food Corporation of India and Anr. v. Yadav Engineer and Contractor A. I. R. 1982 S. C. 1302. That is how this revision petition is before us. The relevant facts for appreciation on the point at issue can be stated thus:
The Petitioner herein filed a suit for the recovery of Rs. 70,000/- against the Defendant-Respondent herein. Along with the plaint he also filed an application under Order 33, Rule 1, CPC for permission to file a suit as an indigent person. On this application notices were ordered to be issued to the Defendants and the report of the Collector was called for by the trial Court, for 17th September, 1982. On 17th September, 1982, Mr M P. Vasudeva, Advocate, appeared for the Defendants, but no reply to the application was filed as the copy of the application was supplied to him by the Plaintiff on that date only. The case was adjourned to 23rd October, 1982(sic) for which date the notice to the Collector could not be issued due to the non-stamping of the registered cover properly. On that date, i. e 23rd October, 1982, the Respondents herein did not file the reply to the application and they were burdened with costs of Rs. 10/- which were paid on that very date. The case was then adjourned to 26th November, 1982. On the adjourned date, i. e. 26th November. 1982, the Defendant-Respondents herein moved an application u/s 34 of the Indian Arbitration Act (for short ''the Act'') for seeking stay of the proceedings before the Civil Court. The trial Court dismissed the application. However, that order was set aside by the District Judge, Ludhiana, who stayed the proceedings and it is this order which has been impugned in the present revision. The question that pointedly arises for consideration is as to whether the action of Defendant-Respondents in getting a date on 23rd October, 1982, for filing reply to the application under Order 33, rule I, CPC Code, constituted ''taking of any other step in the proceedings'', in terms of Section 34 of the Act and dis-entitling the Defendant Respondents to the relief (of staying the proceedings) sought by them.
In our view, the present case is squarely covered by the ratio of Food Corporation''s case (supra). Desai, J. who prepared the unanimous opinion of the Bench after exhaustive survey of case law including an earlier judgment of that Court in The State of Uttar Pradesh v. M/S Janki Saran Kailash Chandra AIR 1962 S. C. 2071, on which counsel for the Petitioner heavily relies and which formed the basis of William Jack''s case (supra), which the learned Single Judge thought, required re-consideration
For appreciating the ratio of Food Corporation''s case (supra) relevant facts of that case deserves recapitulation. In that case the suit was instituted on June 1, 1981. In the suit a notice of motion was taken out purporting to be under Order XXXIX, rules 1 and 2, read with Section 151, CPC Code, for an interim injunction restraining the Defendants from committing a breach of contract and from interfering with the work of handling and transport of goods of the Ist Defendant Corporation by the Plaintiff during the pendency of the suit. The Court directed notices of the injunction application to be served and the same was made returnable on the next day, i.e. June 2, 1981. On the returnable date the 2nd Defendant, District Manager of the 1st Defendant-Corporation who had office in the city of Gwalior was served and be appeared through one Shri N. K. Modi Advocate, who filed the letter of authority (vakalat) in favour of the learned Advocate on behalf of second Defendant and the learned Advocate prayed for time for reply and arguments to the Plaintiff''s application for temporary injunction. The Court acceded to the request and posted the matter on June 3, 1981. The Ist Defendant was not served and was absent. When matter came up on the next day, i.e. June 3, 1981, an application was moved on behalf of 1st Defendant inviting the attention of the Court to the subsisting arbitration agreement between the Plaintiff and the Ist Defendant and which agreement authorised the Managing Director of the Ist Defendant to appoint an arbitrator in respect of any dispute arising out of the contract between the Plaintiff and the Ist Defendant It was also stated that the Ist Defendant desired to have the dispute, if any, resolved by arbitration under the subsisting arbitration agreement and that the Defendant was fully ready and willing to go to arbitration. The application concluded with a prayer that under the circumstances the suit may be stayed as provided in Section 34 of the Act. Desai, J. took the view that the expression ''taking any other steps in the proceedings" has to be read ejusdem genesis with the expression "filing a written statement" The learned Judge took the view that when so read, it would mean that the given action of the Defendant should unmistakably and unequivocally show that he is waiving his right of having the dispute between them settled by an arbitrator in terms of the contract entered into between the parties. His Lordship had no quarrel with the view that had been taken by the court earlier in M/S Janki Saran''s case (supra) and expressed himself in this regard in the following words:
The view herein taken not only does not run counter to the view we have taken but in fact clearly supports the view because the pertinent observation is that taking step in the proceedings which would disentitle a party to obtain a stay of the suit must he doing something in the aid of the progress of the suit or submitting to the jurisdiction of the Court for the purpose of adjudication of the merits of the controversy in the suit. In other words, the step must necessarily manifest the intention of the party to abandon or waive its right to go to arbitration or acquiesce in the dispute being decided by Court. In fact, the view taken in this case should have quelled the controversy but it continued to figure in one form or the other and that is why we have dealt with the matter in detail.
His lordship then proceeded to spell out his conception of the expression "taking the steps in the proceedings" in these words:
We are clearly of the view that unless the step alleged to have been taken by the party seeking to enforce arbitration agreement is such as would display an unequivocal intention to proceed with the suit and acquiesce in the method of resolution of dispute adopted by the other party, namely, filing of the suit and thereby indicate that it has abandoned its right under the abitration agreement to get the dispute resolved by arbitration, any other step would not disentitle the party seeking relief u/s 34 It may be clearly emphasised that contesting the application for interim injunction or for appointment of a receiver or for interim relief by itsef without anything more would not constitute such step as would disentitle the party to an order u/s 34 of the Act.
The facts of this case are almost similar to the one that Were present in M/S Janki Saran''s case (supra) and there is no quarrel with the proposition laid down by R. N. Mittal. J., which is totally in accord with the view taken by their lordships of the Supreme Court, ratio whereof has been identified by Desai, J. in the latter judgment.
Mr. K.G. Chaudhry, appearing for the Petitioner., however, emphasised the fact that an application under Order 33, Rule 1, CPC Code, is part of the suit and does constitute interlocutory proceedings or proceedings ancillary to the main suit and sought support for his submission from a decision in Vijay Pratap Singh Vs. Dukh Haran Nath Singh and Another, . The question in this case that fell for consideration was as to when the suit is said to be instituted in the context of an application under Order 1, Rule 10, CPC Code, and in that context their lordships held that the suit commenced from the date of the presenting of the plaint along with an application under Order 33, rule I, CPC Code.
There could be no quarrel with that view, but so far as the main dispute between the parties is concerned, the proceedings in the application under Order 33, rule I, CPC Code, remains ancillary and interlocutory and therefore a request for adjournment to file reply to the application under Order 33, rule I, Civil Procedure Code, would not exhibit an unequivocal intention on the part of the Defendants to waive their right of having the dispute resolved by the arbitrator and thus would not constitute any step in the proceedings in i terms of Section 34 of the Act.
For the reasons, aforementioned, we find no merit in this petition and dismiss the same, but with no order as to costs.
Sd/- S.S. Sodhi, J.