PAKISTAN Versus ALI SONS CORPORATION

Respondent No.l filed an application under Order XXXIII, C.P.C. for seeking permission to sue in forma pauperis far recovery of Rs.6,15,157,against the appellants and respondents Nos.2 and 3. Garrison Engineer (Air) Maintenance, Shorkot, filed a reply to the said application on 11‑2‑1978. Prior to that an S. D.O. had been appearing and his presence was marked for the appellants and respondent No.3 but that SDO had always been requesting for time to engage a lawyer to defend the case. However, on the orders of the Court he filed one reply signed by the said Garrison Engineer on 31‑10‑1977 which was not found in order and the Court directed that a parawise reply be filed. It was this reply which was filed on 11‑2‑1978. When the case was still pending at the same stage a learned counsel for the appellants and respondent No.3 appeared and sought permission to file an application under section 34 of the Arbitration Act, 1940 and he was allowed to file the same on the same day. The application was resisted by respondent No.l and the learned trial Court framed the following issues:‑

(1) Whether the suit is liable to be stayed under section 34 of the Arbitration Act?

(2) Whether the application has been properly presented, if not, its effect?

(3) Relief .

The learned Senior Civil Judge, Jhang dismissed the said application vide order dated 5‑4‑1979. This appeal has been filed to challenge the said order. I have perused the record and have heard the arguments.

2. The suit was filed against the appellants and Garrison Engineer (Project) PAF Base Rafiqui, Shorkot Road, District Jhang. The said replies filed on 31‑10‑1977 and then on 11‑2‑1978 were filed by Garrison Engineer (Air) Maintenance, Shorkot. No such written reply or written statement was at all filed by the appellants. The reply filed by the Garrison Engineer (Air) Maintenance cannot be taken to be a reply on behalf of respondent No.3 because he is a different person or a designated person than the one who filed the said replies. Therefore, under the law no reply was filed even by respondent No.3. Even in the said replies the Garrison Engineer had made it clear that he was submitting the reply only on the orders of the Court while he was not aware of the intricacies of law. In any case the said replies cannot be said to have been filed either by the appellants or by respondent No.3. Therefore, they have not taken any steps in the A proceedings within the meaning of the law contained in section 34 of the Arbitration Act, 1940. Therefore, for this reason the application filed under section 34 ibid could not be dismissed on the ground that the same had been filed after taking steps in the legal proceedings. It may be pointed out that respondent No. l had disputed the application of Arbitration Clause to his case. It was because of this that the above issues were framed on 24‑8‑1978 and it was for this reason that the parties were called upon to produce evidence on the same. The learned counsel for the contesting parties made a statement on 22‑11‑1978 that they will not produce any evidence but will rely on the documents, however, no document was got exhibited by any of the parties. The learned counsel for respondent No.l contends that the documents and copies of the documents filed by respondent No.l in the suit were meant to be read in evidence. A perusal of the same will show that most of the said documents are not even admissible in evidence because the same are copies attested by respondent No.l himself and not attested in accordance with law. In any case these are unexhibited documents and could not be and cannot be looked into. Therefore, although the parties meant to bring the documentary evidence on record it was not in fact so brought on record by the learned trial Court. In these circumstances the impugned order dated 5‑4‑1979 cannot be allowed to stand. It may be made clear that the appellants and respondent No.3 filed the said application under section 34 ibid before taking any steps in the proceedings, and therefore, the application has to be disposed of afresh. Similarly as the evidence has not been properly brought on record it has to be disposed of after bringing the evidence on record in accordance with law. The question of authenticity and admissibility of the documents which respondent No.l wishes to be read in evidence is also involved in the case, and therefore, right to produce evidence will also be available to the appellants and respondent No. 3. For that matter even respondent No.1 will be at liberty to produce any other evidence in regard to the said application made under section 34 of the Arbitration Act, 1940.

3. In view of my discussion above the impugned order dated 5‑4‑1979 is set aside and the case is remanded to the learned trial Court for disposal of the said application under section 34 of the Arbitration Act, 1940 in accordance with law keeping in view the above observations and directions and to dispose of the case in accordance with law.

4. The parties shall bear their own costs.

H.B.T./P‑36/L Appeal accepted.