An application for time to file a written statement is a step in the proceedings within the meaning of Section 34 of the Arbitration Act, 1940.

( 1 ) THIS is a petition to Revise the decision of the Additional District Judge, Indore, reversing in appeal an order of the Additional City Civil Judge of Indore refusing to stay, under Section 34 of the Arbitration Act, a suit filed by the plaintiff applicant for recovery of damages on account of breach of contract. The learned Additional district Judge stayed the suit under Section 34, Arbitration Act, for a period of four months.

( 2 ) THE undisputed facts are that the suit was filed on 26th April, 1952. On 23rd june 1952 Mr. Patel filed his Vakalatnama on behalf of the defendant praying that as the defendant resided outside the State, further time may be granted for filing his reply. This prayer was allowed by the trial Court fixing 26th August, 1952, as the date for the filing of defendant's reply. On this date the defendant non-applicant presented an application under Section 34, Arbitration Act, for the stay of the suit stating chat one of the terms of the contract between the parties was that all matters, claims and disputes arising in respect of the terms and the conditions thereof, were to be settled by parties in Indore by reference to the sole arbitration of the Indian Motion Pictures Distributors' Association, Bombay, and that any award made by the arbitrator would be final and binding on the parties. The plaintiff opposed the stay of the suit. The trial Judge rejected the petition for the stay of the suit on the ground that the application was not made by the defendant 'before taking any step in the proceedings' and that the defendant's act on 23rd June, 1952, in asking for time to file his written statement amounted to his taking step in the proceedings.

( 3 ) THE question that arises for determination in this case is whether the defendant took a step in the proceedings when he applied on 23rd June, 1952, for time to file his reply. It is well settled by authorities that taking any step in the proceedings means.

"some step which indicates an Intention on the part of a party to the proceedings that he desires that the action should proceed and has no desire that the matter should be referred to arbitration,"

(See Austin and Whiteley Ltd. v. S. Bowley and Son (1913) 108 LT 921 (A); Subal chandra Bhur v. Md. Ibrahim, ATR 1943 Cal 484 (B); and Abdul Quddoos v. Abdul gam, AIR 1954 Nag 332 (C) ). In the instant case the order that was passed by the trial Court on 23rd June, 1952, granting time to the defendant ran as follows:-izfroknh rsqsz fe- ivsy dk odhy i= is'k gqoka fu- dh n[ky fe- ivsy us tkghj dh;k fd izfroknh ckgj xkao dk gksus ls tckc is'k djus dks le; pkgrs gsa] le; fn;k x;ka izfroknh ds tckc nkos ij 26and8and52a this order and the words ^^izfroknh ds tckc nkos ij** unmistakably show that time was granted to the defendant to file a written statement in answer to the plaintiff's claim. There is nothing en record to show that on 23rd June, 1952, while asking for time counsel appearing for the defendant made it very clear to the court that the defendant intended, to apply for the stay of the suit under Section 34 of the Arbitration Act and that on the adjourned hearing he would file a reply taking the objection that the plaintiff's suit should be stayed in view of a term in the contract about the settlement of disputes between the parties by reference to arbitration. The petition for the stay of the suit was heard by the very Judge who had granted time to the defendant on 23rd June, 1952, and he has stated in his order refusing the stay that on 23rdJune, 1952, the defendant was granted time distinctly for the purpose of filing the written statement. In these circumstances, there could be no doubt that by asking for time on 23rd June, 1952, to file the written statement, the defendant displayed an unequivocal intention to proceed with the suit and had no desire that the matter should be referred to arbitration. The learned Additional District Judge stayed the suit taking the view that the words ^^izfr