K.C. Das Gupta, J.

1. The Petitioner instituted a suit in the Presidency SmallCause Court, Calcutta, for recovery of a suit of Rs. 478-1-0 said to be due asthe unpaid balance on account of the price of goods supplied. An applicationfor stay of the suit under Section 34 of the Arbitration Act, 1940, having beenfiled by the Defendant opposite party, the learned Small Cause Court Judgepassed an order staying the suit on the ground that the was an agreement todecide the issue in suit by arbitration in the contract, dated May 10, 1948.

2. The only point taken in support of this application (sic)revision of the order staying the suit is that as a result of the provisions ofSection 40 of the Arbitration Act, the learned (sic) Cause Court Judge has nojurisdiction in law to stay a suit under Section 34 of the Act.

3. The application was made under Section 34 of the Act. Itwould be convenient first to consider the words of that section in order todecide the question. The section runs thus:

Where any party to an arbitration agreement or any personclaiming under (sic) commences any legal proceedings against any other party tothe agreement or an person claiming under him in respect of any matter agreedto be referred, any part to such legal proceedings may, at any time beforefiling a written statement c taking any other steps in the proceedings, applyto the judicial authority before which the proceedings are pending to stay theproceedings; and if satisfied that there is no sufficient reason why the mattershould not be referred in accordance wit the arbitration agreement and that theApplicant was, at the time when the proceedings were commenced and stillremains, ready and willing to do all things necessary, the proper conduct ofthe arbitration, such authority may make an order staying e proceedings.

4. It is important to note the words--

may...apply to the judicial authority before which theproceedings are pending stay the proceedings.

5. I cannot imagine how the words "the judicialauthority before which the proceedings are pending" can refer to any (sic)court than the Court of the Small Causes in which the Petitioner had institutedthe suit and before which the suit was actually pending. It will be helpful inthis connection to compare these words with those in the corresponding Section19 of the (sic) Act, where the corresponding words were--

may, at any time after appearance and before filing awritten statement or taking any other steps in the proceedings, apply to thecourt to stay the proceedings;

6. The court was defined by Section 4 of the Act asmeaning--

In the Presidency towns, the High Court and elsewhere, theCourt of the district Judge.

7. If the section had not been altered and the words"may apply "to the court to stay the proceedings" were stillthere and this definition of the court, as mentioned, had also remainedunchanged, there could be no doubt that the High Court would lave jurisdictionto entertain such an application and there could be very strong reasons forthinking that no other Court other than the High Court would have suchjurisdiction. When a question whether the court has power to stay proceedingsbending in the Presidency Small Cause Court, Calcutta, under Section 19 of theOld Arbitration Act came up before this Court in the case of RadhakissenDhanuka v. Bombay Company, Ltd. I.L.R. (1929) Cal. 755 it was held that theHigh Court had jurisdiction. I can only respectfully say that this was the onlypossible decision on the wording of Section 19 and the definition of the word"court" as it was in the old Act.

8. When we find that thereafter the legislature haddeliberately changed the phraseology of the provision and has substituted thewords "may apply to the court to stay the proceedings" by the words"may apply to the judicial authority before which the "proceedingsare pending", the conclusion seems inevitable,--even if there could havebeen any doubt apart from such comparison,--that the only authority competentto entertain such an application and order stay of the suit is the Small CauseCourt before which the suit was pending.

9. Let us now turn to Section 40, which, according to Mr.Ghose, who has appeared in support of the Petitioner, practically nullifies,this provision of Section 34. Section 40 runs thus:

A Small Cause Court shall have no jurisdiction over anyarbitration proceedings or over any application arising there out save onapplication made under Section 21.

10. Admittedly, this is not a case under Section 21, thatsection being concerned with cases where all the parties in suit agree that thematter should be referred to arbitration. Strictly interpreter Section 40 onlymeans this that the Small Cause Court shall have (sic) jurisdiction over theproceedings of the arbitration which has started nor will have any jurisdictionfor any application which may arise out of those proceedings. The stage atwhich the application for stay is made and the stay order is passed is no anypart of the arbitration proceedings. I cannot see how the provision in law thatthe Small Cause Court shall have no jurisdiction over any arbitrationproceedings can in any was affect the interpretation of law,--which asmentioned above will give the Small Cause Court jurisdiction to pass a stayorder For clearly, exercising jurisdiction to pass stay order is no exercisingjurisdiction over arbitration proceedings.

11. It has, however, been argued by Learned Counsel for thePetitioner that if a Small Cause Court has jurisdiction to pas stay order buthas thereafter no jurisdiction over the proceedings, an anomalous positionwould arise, as the (sic) will have to go to the High Court for all matters inconnection with arbitration proceedings. I do not think there can be any doubtthat for all matters connected with arbitration proceedings the parties willhave to go to the High Court. That is the provision which the legislature hasdeliberately made in the Act in Sections 11, 15, 16, 17 and 19, to mention onlya few, the provision giving the court certain powers and duties overarbitrators and arbitration proceedings. This word "court" as used inthis section, has been denned in Section 2(c) of the Act thus:

"Court" means a civil court having jurisdiction todecide the questions forming the subject-matter of the reference if the samehad been the subject-matter of a suit, but does not, except for the purpose ofarbitration proceedings under Section 21, include a Small Cause Court.

12. As a result of this definition, the court, for cases inpresidency-town will necessarily mean, for all sections except under Section21, the High Court. It seems clear that, as a result of this definition ofcourt in Section 2(c) and the use of the word "court" in all therelevant sections dealing with powers and duties over arbitration proceedings,the High Court only would have jurisdiction over arbitration proceedings insuits in the presidency-town. The provisions of Section 40 did in effect addvery little. "What it seeks to provide, namely, that the Small Cause Courtshall have no jurisdiction over an arbitration proceedings, or over anapplication arising there out, would in effect follow from the definition ofthe word "court" in Section 2(c) and the use of the word"court" in the relevant sections dealing with the powers and dutiesof the court over arbitration proceedings. As in the definition in Section 2(c)an exception has been made in the case of proceedings under Section 21, so hasan exception been made in Section 40 (sic) other words, Section 40 reallyrepeats, for the sake of convenience, for that matter, for abundant caution,the effect of the revision which have already been secured by the precedingrevisions in law.

13. The contention of the Learned Counsel for the Petitionersally comes to this Section 40 and the other sections provide that or a suit ina Small Cause Court, the High Court alone has jurisdiction over arbitrationproceedings. It is unwise and inconvenient that the Small Cause Court should begiven the right to stay a suit, for the purpose, of arbitration proceedings, donot see how it is unwise or inconvenient. But it is not for his Court tospeculate over the wisdom of the provision that has been made by thelegislature. By using the words "the judicial authority before which theproceedings are pending", the legislature has made the provision clear andunambiguous. Where a suit is pending before a Small Cause Court, the Small CauseCourt is the authority to whom the application has to be lade and suchauthority may pass an order staying the suit.

14. My conclusion is that the Small Cause Court hadjurisdiction a pass the stay order on the application under Section 34 of theArbitration Act.

15. The Rule is, therefore, discharged with costs.

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Basanti Cotton Mills Ltd.vs. Dhingra Bros (30.03.1949 -CALHC)