Judgment:
ORDER
1. Having regard to Browning's know on verbal economy -- 'less is more' -let me, in few words, first touch the facts and then the points in issue.
2. In response to the suit for eviction instituted by the respondent the appellant filed an application under Section 34 of the Arbitration Act (hereinafter called the Act) alleging the existence of an Arbitration agreement. Since the application was opposed, the learned Additional District Judge proceeded to hear arguments and by the order under appeal he not only dismissed it on the ground that the appellant had participated in the proceedings but held further:
'The appointment (of the arbitrator) if somade is, thereforee, declared null and void... .
3. We all know the conditions which are required to be fulfillled for exercise the discretionary power of the Court under Section 41 of the Act to order stay of legal proceedings.Let us have a look at them again. They are; (I) There must be a valid and binding arbitration agreement between the parties to the legal proceedings; (2) the proceedings in the Court must have been commenced and that too by a party to the agreement or any person claiming under him and against any other party to the agreement or any person claiming under him; (3) the proceedings so commenced must be in respect of matters agreed to be referred; (4) the application under Section 34 must be made by a party to such legal proceedings; (5) the application must be made before filing a written statement or taking any other step in the legal proceedings; (6) the applicant must show that he was and is ready and willing to do, all things necessary to the proper conduct of the arbitration; and (7) there must be no sufficient reason why the matter should not be referred to arbitrator in accordance with the agreement. (See Anderson Wright Ltd. v. Moran and Co.,- : [1955]1SCR862 ; Union of India v. Birla Cotton Spg. & Weaving Mills Ltd-, : [1964]2SCR599 ; Rachappa v. Guru-suddappa, : AIR1989SC635 ).
4. And, what do we mean by the general expression 'taking any other steps in the proceedings' which follow; the specific expression 'filing a written statement'? It means such step as would manifestly display an unequivocal intention to proceed with the suit and the give up the right to have the matter disposed of by arbitration. (See Rachappa v. Gurusiddappa, : AIR1989SC635 ). Such an election or affirmation may be by express choice or by necessary implication or by acquiescence (General Electric Co. v. Renusagar Power Co.; : [1987]3SCR858 .
5. The learned Additional District Judge is of the view that the appellant bad taken a step in the proceeding. Had it
6. In support of his view the learnedAdditional District Judge relies upon thefollowing appearing in the order of November11- 1993:
'11-11-93
Present: Counsel for the parties.
Shri R. K. Dhawan, Advocate for thedefendant seeks one more opportunity to fire written statement. Heard. Allowed.
Case is adjourned for filing of written statement on 9-12-93.
Sd/-
A.D.J.'
7. The order reproduced above does un-disputably go to show the taking of a step in the progress of the suit and submission to the jurisdiction of the Court for the purpose of adjudication of the suit on merits. Unfor-tunately, the matter does not rest here. What makes it weird, if I may say so, is the presence of yet another order pf the same date and what needs to be noted is that whereas the order reproduced above is type written, the other is in the very hand of the learned Additional District Judge, and this is how it runs:
' 11 / XI / 93 -- Present both the parties.
An application u/S. 34 of the Arbitration Act filed.
Copy given.
To come 9/2/94 for reply .
argumentSd/-'
And as if all this was not enough', the learned Additional District Judge does not even refer to it in his order, though, to my mind, some comment on it was called for; more so when it was the plea of the appellant that it had never sought adjournment for filing its written statement.
8. One thing more. How could the learned Additional District Judge declare the appointment of an arbitrator 'null and void' while dealing with an1 application under Section 34 of the Act seeking only stay of the legal proceedings? It stumps me. To say the least.
9. What then should I do? Mr. Pratap Kishah Jaitley, Advocate for the respondent asksime to ignore the order, hear the arguments and decide the matter on my own. However, I stand unpersuaded. It is the learned Additional District Judge who knowsunder what, circumstances two conflicting orders came to be passed, on the same day. Why not ask him to reflect on them and so also on their effect? And then the parties have raised certain points touching facts and law which need to be probed and which probably may require recording of evidence too. 1 am, thereforee, rather inclined towards remand. Without it the jungle out here will keep on thickening.
10. The appeal is accepted and the impugned order is set aside. The learned Additional District Judge is directed to decide the matter, afresh after affording parties opportunity to lead evidence. Let the parties appear before the Court concerned on October 18, 1994. No order is made as to costs.
11. Appeal allowed.