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K.K. Mathai Vs. Mater Dei School - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtDelhi High Court
Decided On
Case NumberInterim Application Appeal No. 1480 of 1976
Judge
Reported in1977RLR41
ActsArbitration Act, 1940 - Sections 34; Code of Civil Procedure (CPC), 1908
AppellantK.K. Mathai
RespondentMater Dei School
Advocates: C.V. Francis and; R.P. Sharma, Advs
Excerpt:
.....have taken steps in the legal proceedings and hence, were debarred from invoking the stay of legal proceedings under section 34 of the arbitration act, 1940, on the ground that there was no written agreement between the applicant and the managing committee - hence, it was held that the application filed in the said matter by the respondent was liable to be dismissed - - the consensus is that a suit commences when an application is presented for permission to sue as a pauper and there is no postponement of the acquisition of the status of the suit until the admission of that application under rule 8. in vijai pratap singh vs .dukh haran nath singh and another, air1962sc941 ,the supreme court' held that an application to sue in forma pauperis is but a method prescribed by the code..........procedure is presented.' thus the proceedings which commence on an application under order 33 is a legal proceedings, and the prayer for permission to sue as a pauper is one of the prayers in the plaint which ultimately, if allowed, may be registered as a plaint in the suit., the application under order 33 is, thereforee, a legal proceeding within the meaning of section 34 of the arbitration act, 1940. (3) with this finding that an application to sue in forma pauperis is a legal proceedings within the meaning of section 34 of the arbitration act, 1940, then the steps taken by the respondents for filing the reply to the pauper application and for proceeding with the trial on the issue of pauperism, amount to taking steps in the legal proceedings. the plaint of the suit may not have been.....
Judgment:

S.S. Chadha, J.

(1) Applicant sued respondents for recovery of damages by filing an application for permission to sue as a pauper. Respondents on 25-8-75 obtained adjournment for filing reply. After they filed reply, applicant filed replication. Then issues were framed. Case was then being made ready for trial and before that respondent applied u/s 34 of Arbitration Act, claiming that pauper application was not a legal proceeding for purposes of S. 34, Arbitration Act.] Para 5 onwards judgment is -

(2) There is a divergance of the judicial opinion with respect to the question whether an application for permission to sue as a pauper commences a suit. The consensus is that a suit commences when an application is presented for permission to sue as a pauper and there is no postponement of the acquisition of the status of the suit until the admission of that application under Rule 8. In Vijai Pratap Singh Vs . Dukh Haran Nath Singh and another, : AIR1962SC941 , the Supreme Court' held that an application to sue in forma pauperis is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court Fees Act, that if the claim made by the applicant that he is a pauper is not established the application may fail, and that there is nothing personal in such an application. It is held that 'The suit commences from the moment an application for permission to sue in forma pauperis as required by Order 33 of the Code of Civil Procedure is presented.' Thus the proceedings which commence on an application under Order 33 is a legal proceedings, and the prayer for permission to sue as a pauper is one of the prayers in the plaint which ultimately, if allowed, may be registered as a plaint in the suit., The application under Order 33 is, thereforee, a legal proceeding within the meaning of section 34 of the Arbitration Act, 1940.

(3) With this finding that an application to sue in forma pauperis is a legal proceedings within the meaning of section 34 of the Arbitration Act, 1940, then the steps taken by the respondents for filing the reply to the pauper application and for proceeding with the trial on the issue of pauperism, amount to taking steps in the legal proceedings. The plaint of the suit may not have been registered as a suit, yet the legal proceedings have commenced by the institution of a suit in forma pauperis. Filing of a reply by the respondents alleging that the applicant is possesed of sufficient means to pay the requisite court fee on the plaint of the suit, is a stage in the advancement of the suit and amounts to taking steps in the proceedings. It shows that the respondents have submitted to the jurisdiction of the Court and are taking steps in aid of the progress of the suit. I could understand the stand of the respondent that the plaint of the suit has not yet been registered and they will ask for the stay of the suit after the question of pauperism is decided, but the application is made even during the pendency of the pauper application. The relief claimed in the present application is that the proceeding may be stayed so that the matter is decided in accordance with the provisions of the Delhi School Education Act, 1973 and service agreement which is applicable to every employee of the respondents. The filing of such an application, during the pendency of the pauper application, impliedly is an admission of the respondents that the applicant has commenced legal proceedings against the respondents in respect of any matter agreed to be referred. I, thereforee, have no hesitation in holding that the respondents have taken the steps in the legal proceedings and thus debarred themselves from invoking the stay of the legal proceedings under Section 34 of the Arbitration Act, 1940.

(4) Apart from it, I am not satisfied that there is any arbitration agreement between the parties. Section 15 of the Delhi School Education Act, 1973 does not provide for a statutory arbitration in case of any dispute between the employee and the Managing committee. It only provides that the Managing Committee of every unaided minority school shall enter into a written contract of service with every employee of such School and every such contract of service shall provide, inter alia, arbitration of any dispute arising out of any breach of contract betweent he employee and the managing committe. It is the admitted case of the respondents that no written contract of service has been entered into by the applicant with the managing committee. It may be the requirement of the Delhi School Education Act, 1973 that the managing committee shall enter into a contract of service but that does not mean that the statutory arbitration substitutes the contract between the employee and the managing committee. If there is a statutory provision that the subject matter of the suit will be submitted to arbitration of a specified person, the position may be different but such is not the case. There is also no bar in the statute, that the dispute of the applicant cannot be entertained by a Civil Court and is to be referred to arbitration. In the absence of such statutory provision, it has to be contract of service between the managing committee and the employee. In the absence of any written agreement between the applicant and the managing committee, it cannot be held that there is any arbitration agreement between the parties.


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