TMI Blog1973 (4) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... e of U.P. were served on the District Government Counsel. On September 2, 1966 the said counsel filed an appearance slip in the court and also put in a formal application praying for one month's time for the purpose of filing written statement. This prayer was granted. On October 1, 1966 the District Government counsel filed an application under Section 34 of the Arbitration Act pleading that there was an arbitration clause in the agreement between the parties to the suit and the State of U.P. being willing to refer the matter to arbitration the suit should be stayed. The trial court held that the dispute was subject to arbitration clause and since the State of U.P. had not taken any steps in the suit proceedings and had also not filed the written statement the suit was liable to be stayed. So holding the a application of the State Government was allowed and the suit stayed. 3. On appeal by the plaintiff the High Court relying OR two of its earlier decisions in United Provinces Government v. Sri Har Nath AIR1949All611 . and Union of India v. Hans Raj Gupta and Company AIR1957All91 ., held that action of the District Government Counsel in applying for time to file the written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh v. Lalchand Shahi where it was observed by the learned Judicial Commissioner that no person can be deemed to take any step in a proceeding who is not aware of what the proceedings are and, the prayer for adjournment of the case made by a counsel, who up till the moment of making the request for adjournment had received no instructions from his client, did not amount to taking of a step in the proceedings within Section 34 of the Arbitration Act. Harbans Lal v. National Fire General Insurance Company Ltd. A.I.R. 1995 Pun 4917 is also a decision by a learned single Judge of the Punjab High Court. In that case the branch office of the defendant company had only received the summons of the suit filed by the plaintiff, a day previous to the date of appearance. It was observed by the learned single Judge that presumably it was in the circumstances necessary to obtain instructions from the head office of the Company and, therefore, a mere oral application for an adjournment for filing a written statement could not be regarded as a step in the proceedings which disentitled the defendant company from applying for stay under Section 34 of the Arbitration Act. In The Printers (Mysore) Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e objective and a person shall be deemed to have taken a step under Section 34 of the Act, if it can be held that he could have actual or construction knowledge of his right in the event of the exercising due diligence and that in spite of that he participated in the proceedings of the Court. (3) Prima facie, an application for time to file written statement should raise a presumption that the defendant had actual or constructive knowledge of his right and that he acquiesced in the method adopted by the plaintiff. The presumption, however, is not absolutely irrefutable and can be rebutted by showing that even constructive knowledge cannot be imputed to the defendant. It is, however, not proper and fair to lay down that the presumption can be rebutted only on the ground that the defendants did not receive the copy of the plaint. In rare and exceptional cases, it may be rebutted by other circumstances, such as appearance of a Government counsel without getting instructions in a particular case to appear. It is not desirable to enumerate the exhaustive list of the circumstances and to make generalization and each case should be considered on its own facts and circumstances. Pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a written statement, on the ground that no instructions had been issued to the Counsel to make such a prayer. 6. Shri Mohan Behari submitted in reply that there was no material on the record that the counsel applying for adjournment on behalf of the State had no instructions. The counsel, according to the submission, must be presumed to have been duly empowered to take all steps that were necessary to be taken in the court in connection with the proceedings on the date he appeared and filed his appearance slip in the Court. Shri Mohan Behari also relied on Sarat Kumar Ray v. Corporation of Calcutta I.L.R. 34 Cal. 443., Edward Radbone v. Judggilal AIR1943Bom228 . and Roop Kishore v. U.P. Government AIR1945All24 in addition to the two Allahabad judgments referred to in the impugned judgment, for the submission that the prayer for adjournment for filing a written statement is a step in aid as contemplated by Section 34 of the Arbitration Act. In Roop Kishore's case (supra), it was emphasised that the whole burden should be upon the defendant to establish the circumstances which would lead to the result that effect should not be given to the prima facie meaning of the applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itute a suit in some court is conferred, on a person having a grievance of a civil nature under the general law. It is a fundamental principle of law that where there is a right there is a remedy. Section 9 of the CPC confers this general right of suit on aggrieved person except where the cognizance of the suit is barred either expressly or impliedly. A party seeking to curtail this general right of suit has to discharge the onus of establishing his right to do so and the law curtailing such general right has to be strictly complied with. To enable a defendant to obtain an order staving the suit, apart from other condition mentioned in Section 34 of the Arbitration Act, he is required to present his application praying for stay before filing his written statement or taking any other step in the suit proceedings. In the present case the written statement was indisputably not filed before the application for stay was presented. The question is whether any other step was taken in the proceeding as contemplated by Section 34 and it is this point with which we are directly concerned in the present case. Taking other steps in the suit proceedings connotes the idea of doing something i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government in the sense of being unauthorised by his client for the simple reason that he is authorised by virtue of statute to appear, act and make applications on behalf of the Government. Indeed in the present case the District Government Counsel also filed in court the usual appearance slip. If he wanted time for further consultations, he could and should have specifically made a prayer to that effect. It is, however, idle to contend that he can be considered to have merely volunteered without authority to appear and ask for time for filing the written statement. The argument of appearance by a recognized agent as a mere volunteer is extremely difficult to appreciate. The State, as already observed, took the benefit of the adjournment. It will be somewhat irrational and perhaps incongruous to permit the State, after having taken the benefit of this adjournment, to plead that the application for adjournment was not made on instructions and was unauthorised. To accede to the State Government the right to do so would clearly be unjust to the opposite party which could have rightfully objected to the adjournment, had there been any indication that the prayer was not being made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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