Filing of reply to the application for securing a temporary injunction and arguing the said application itself does not amount to "taking other steps in the proceedings" within the meaning of Section 34 of the Arbitration Act.

( 1 ) THIS is a plaintiffs appeal under Section 39 of the Arbitration Act by which the order passed by the First Additional District Judge, Jabalpur, in Civil Suit No, 26-A of 1959 staying the proceedings in the suit under the provisions of Section 34 of the Arbitration Act is challenged.

( 2 ) THE main contention urged on behalf of the plaintiff-appellant is that it is too late now for the applicant to ask for stay of proceedings under Section 34 of the Arbitration Act (hereinafter Called the 'act') inasmuch as he has already taken 'other steps in the proceedings' within the meaning of Section 34 of the Act.

( 3 ) IT is necessary to state the facts briefly to appreciate the contentions of the parties. The plaintiff's suit is for the recovery of damages on account of breach of contract for plying ferries from two ghats. The plaintiff has claimed damages to the extent of Rs. 14,838/ -. He alleges that he has paid Rs. 31,000/- towards the lease amount of Rs. 39,666/-in respect of one ghat; the defendants are now recovering from him the balance and that they are also claiming the entire lease money with regard to the other ghat. This amount is stated to be Rs. 19,834/- in the plaint. It was also claimed that the amount of Rs. 8291 which remained to be paid to him in respect of one lease be adjusted towards the amount of damages that may be decreed and that a permanent injunction be granted against the defendants restraining them from making recovery of Rs. 10,834/ -.

( 4 ) THE plaint was filed on 5-8-1959 and on the same day, an application for grant of temporary injunction against the defendants was also made. On 6-81959, ex parte temporary injunction restraining the defendants from attaching moveable property except cash was passed by the trial Court. On behalf of defendants Nos. 1 and 3 vakalatnama was filed on 1-9-1959. The counsel for defendants Nos. 1 and 3 stated on that day that he was prepared to file reply to the original application for temporary injunction but as on 1-9-1959 the plaintiff amended his previous application for temporary injunction the Court ordered the reply to be filed to the amended application on 8-9-1959. The reply was filed by Shri Uppadhyaya opposing the grant of temporary injunction and raising these points also in the reply, that both the lease deeds contained arbitration clauses according to which the dispute between the parties had to be decided by an award of the Superintending Engineer and that the Court had no jurisdiction to entertain the suit by virtue of the provisions of Section 34 of the Northern India Ferries Act. The case was then fixed for arguments on the application for temporary injunction on 19-9-1959. On this date, the defendants took an adjournment to argue the case. Arguments were heard on 22-9-1959 and the Court rejected the application for temporary injunction on 23-9-1959. On 17-11-1959, an application was made on behalf of the defendants under Section 34 of the Act to stay the proceedings in the suit. The plaintiff filed his reply to this application cm 21-12-1959 and the proceedings were ordered to be stayed by the trial Court on the same day.

( 5 ) THE filing of the reply, taking an adjournment for arguments and finally arguing the application for temporary injunction are said to be "the other steps in the proceedings' within the meaning of Section 34 of the Act.

( 6 ) ACCORDING to the provisions of Section 34 of the Act, an application to stay the proceedings can be made at any time before filing the written statement or before taking any other steps in the proceedings. It is admitted that the written statement in the suit had not till then been filed. No adjournment was taken to file the written statement also. But, the plaintiff's contention is that the defendants had taken other steps in the proceedings in view of the part taken by them on 1-9-1959 and the subsequent dates of hearing and the effect is that they are precluded from maintaining the applica