JUDGMENT - Chagla, C.J.

1. This is an appeal from an order of Mr. Bakhle Judge of the City Civil Court, dismissing the notice of motion taken out by the defendants for stay of proceedings under Section 34, Arbitration Act. The plaintiff filed a summary suit on 17-4-1952, appearance was filed by the defendants on 25-4-1952. On 4-7-1952, the plaintiff took out a summons for judgment, and on 12-7-1952, the defendants filed an affidavit in reply setting out the defence and asking for leave to defend. The defendants took out a notice of motion for stay on 24-7-1952, and this is the notice of motion which was dismissed by Mr. Bakhle. The ground on which the learned Judge dismissed the notice of motion was that by filing the affidavit in reply the defendants had taken a step in the proceedings within the meaning of Section 34.

2. Now, it is clear that under Section 34 it is necessary that the party who applies for stay should himself take a step in the proceedings before he becomes disentitled to the stay which is asked for. It must be some application made by the party in the proceedings, and as the authorities show that application must be of such a nature as to lead the Court to the conclusion that the party prefers to have his rights and liabilities determined by the civil Court rather than by the domestic forum upon which the parties might have agreed. These really are the two tests which the authorities show ought to be applied, and the cases on which Mr. Shah has relied in order to convince us that the decision of the learned Judge was wrong, far from supporting him emphasise these principles.

3. Turning first to the case of - Ives Barker v. Willans, 1894-2 Ch. 478 (A). That was a case where a notice was given by the defendant to the plaintiff requiring from him a copy of the statement of the claim, and the English Court held that that was not a step in the proceedings. Obviously, this was not a step in the proceedings because the defendant had made no application and had taken no step. All that he had done was to call upon the plaintiff to supply him with a copy of the statement of the claim. It is in this connection that Lord Justice Lindley laid down certain principles. At p. 484 the learned Law Lord says:

"The authorities shew that a step in the proceedings means something in the nature of an application to the Court, and not mere talk between solicitors or solicitors clerks, nor the writing of letters, but the taking of some step, such as taking out a summons or something of that kind, which is, in the technical sense, a step in the proceedings."

The learned Law Lord also points out that before a party can exercise his option as to whether he would allow the suit to go on in the civil Court or ask for stay of proceedings under Section 34 he had to know what the nature of the claim was, and, therefore, when the defendant applied for a copy of the statement of the claim he had a right to do so before he made up his mind as to whether he should apply for stay under Section 34 or not.

4. The next case on which reliance is placed is -- Zalinofi v. Hammond, 1898-2 ch. 92 (B). That was a case where the defendant filed an affidavit in answer to a notice of motion for receiver taken out by the plaintiff. Again, it is difficult to understand how it could possibly bo said that when the plaintiff applies for a receiver and the defendant meets that case by filing an affidavit in reply, it could be said that he had taken any step or that he had made any application; and Mr. Justice Stirling in deciding this case merely applied the principles enunciated by Lord Justice Lindley in the earlier case to which reference has been made.

5. Then reference is made to a judgment of Bhagwati J. in -- Chimanram Motilal v. Vandra-vandas, AIR 1948 Bom 55 (C). That case is rather significant as pointing out the difference between a party making an application and a party merely agreeing to an application made by the other side. In the case before

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