1. The petitioner instituted a suit in the Presidency Small Cause Court, Calcutta, for recovery of a sum of Rupees 478-1-0 said to be due as the unpaid balance on account of the price of goods supplied. An application for stay of the suit under Section 34 of the Arbitration Act, 1910, having been filed by the defendant opposite party, the learned Small Cause Court Judge passed an order staying the suit on the ground that there was an agreement to decide the issue in suit by arbitration in the contract, dated 10th May 1948.
2. The only point taken in support of this application for revision of the order staying the suit is that as a result of the provisions of Section 40 of the Arbitration Act, the learned Small Cause Court Judge has no jurisdiction in law to stay a suit under s. 34 of the Act.
3. The application was made under S. 34 of the Act. It would be convenient first to consider the words of that section in order to decide the question. The section runs thus:
“Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings; and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings.”
4. It is important to note the words “may…. apply to the judicial authority before which the proceedings are pending to stay the proceedings.” I cannot imagine how the words “the judicial authority before which the proceedings are pending” can refer to any other Court than the Court of the Small Causes in which the petitioner had instituted the suit and before which the suit was actually pending. It will be helpful in this connection to compare these words with those in the corresponding s. 19 of the old Act, where the corresponding words were:
“may, at any time after appearance and before filing a written statement or taking any other steps in the proceedings, apply to the Court to stay the proceedings.”
5. The Court was defined by s. 4 of the Act as meaning in the Presidency towns, the High Court, and elsewhere the Court of the District Judge. If the section had not been altered and the words “may apply to the Court to stay the proceedings” were still there, and this definition of the Court, as mentioned, had also remained unchanged, there could be no doubt that the High Court would have jurisdiction to entertain such an application and there would be very strong reasons for thinking that no other Court other than the High Court would have such jurisdiction. When a question whether the Court has power to stay proceedings pending in the Presidency Small Cause Court, Calcutta, under Section 19 of the old Arbitration Act, came up before this Court in the case of Radha Kissan Dhanuka v. The Bombay Co. Ltd., 66 Cal. 755 : (A.I.R (17) 1930 Cal. 61), it was held that the High Court had jurisdiction. I can only respectfully say that this was the only possible decision on the wording of S. 19 and the definition of the word “Court” as it was in the old Act. When we find that thereafter the Legislature had deliberately changed the phraseology of the provision and has substituted the words “may apply to the Court to stay the proceedings” by the words “may apply to the judicial authority before which the proceedings are pending,” the conclusion seems inevitable,—even if there could have been any doubt apart from such comparison,—that the only authority competent to entertain such an application and order stay of the suit is the Small Cause Court before which the suit was pending.
6. Let us now turn to S. 40, which, according to Mr. Ghose, who has appeared in support of the petitioner, practically nullifies this provision of s. 34. Section 40 runs thus:
“A Small Cause Court shall have no jurisdiction over any arbitration proceedings or over any application arising there out save on application made under S. 21.”
7. Admittedly, this is not a case under S. 21, that section being concerned with cases where all the parties in suit agree that the matter should be referred to arbitration. Strictly inter, preted, S. 40 only means this that the Small Cause Court shall have no jurisdiction over the proceedings of the arbitration which have started nor will have any jurisdiction for any application which may arise out of those proceedings. The stage at which the application for stay is made and the stay order is passed is not any part of the arbitration proceedings. I cannot see how this provision in law that the Small Cause Court shall have no jurisdiction over any arbitration proceedings can in any way affect the interpretation of law, which, as mentioned above, will give the Small Cause Court jurisdiction to pass a stay order. For clearly, exercising jurisdiction to pass stay order is not exercising jurisdiction over arbitration proceedings. It has, however, been argued by learned counsel for the petitioner that if a Small Cause Court has jurisdiction to pass stay order but has thereafter no jurisdiction over the proceedings, an anomalous position would arise, as the parties will have to go to the High Court for all matters in connection with arbitration proceedings. I do not think there can be any doubt that for all matters connected with arbitration proceedings the parties will have to go to the High Court. That is the provision which the Legislature has deliberately made in the Act in ss. 11, 15, 16, 17 and 19 to mention only a few, the provisions giving the Court certain powers and duties over arbitrators and arbitration proceedings. This word “Court” as used in this section, has been defined in S. 2(c) of the Act thus:
“Court means a civil Court having jurisdiction to decide the question forming the subject-matter of the reference if the same had been the subject-matter of a suit but does not, except for the purpose of arbitration proceedings under S. 21, include a Small Cause Court.”
8. As a result of this definition, the Court, for cases in Presidency town, will necessarily mean, for all sections except under s. 21, the High Court. It seems clear that as a result of this definition of Court in S. 2(c) and the use of the word “Court” in all the relevant sections dealing with powers and duties over arbitration proceedings, the High Court only would have jurisdiction over arbitration proceedings in suits in Presidency town. The provisions of S. 40 did in effect add very little. What it seeks to provide, namely, that the Small Cause Court shall have no jurisdiction over an arbitration proceeding, or over an application arising there out, would in effect follow from the definition of the word “Court” in S. 2(c) and the use of the word “Court” in the relevant sections dealing with the powers and duties of the Court over arbitration proceedings. As in the definition in S. 2(c) an exception has been made in the case of proceedings under S. 21, so has an exception been made in s. 40. In other words, S. 40 really repeats, for the sake of convenience, or for that matter for abundant caution, the effects of the provision which have already been secured by the preceding provisions in law.
9. The contention of the learned counsel for the petitioner really comes to this: Section 40 and the other sections provide that for-a suit in a Small Cause Court, the High Court alone has jurisdiction over arbitration proceedings. It is unwise and inconvenient that the Small Cause Court should be given the right to stay a suit, for the purpose of arbitration proceedings. I do not see how it is unwise or inconvenient. But it is not for this Court to-speculate over the wisdom of the provision that has been made by the Legislature. By using the words “the judicial authority before which the proceedings are pending”, the Legislature has made the provision clear and unambiguous. Where a suit is pending before a Small Cause Court, the Small Cause Court is the authority to whom the application has to be made, and such authority may pass an order staying the suit.
10. My conclusion is that the Small Cause Court had jurisdiction to pass the stay order in the application under Section 34 of the Arbitration Act. The rule is, therefore, discharged with costs.
V.R.B
11. Rule discharged.