Mufti Baha-ud-Din Farooqi, Actg. C.J.
1. By lease deed dated 14th March, 1969, Mrs. C. K. Atri leased out a bungalow together with its annexe and land appurtenant thereto situated at Boulevard, Srinasar to the Chief Engineer Project Beacon through President of India at a monthly rental of Rs. 700. Smt. Atri has died. She is survived by Dr. S. K. Atri and Mr. Vijav Atri, Dr. Atri issued a notice terminating the lease and thereafter instituted a suit, being Original suit No. 52 of 1979, in the court of City Judge, Srinagar for the recovery of possession of the premises based on the determination of the lease. He impleaded Chief Engineer Hqr. Project Beacon, Union of India and Sh. Vijay Atri as defendants. On 10-8-1979, Union of India moved an application under Section 34 of the Arbitration Act for an order staying the proceedings of the suit and requiring the plaintiff to take steps for reference of the dispute to the arbitrator in terms of Clause 8 of, the lease agreement. Clause (8) reads thus:--
'VIII. In the event of any dispute, difference, question or thing arising between the Lessor and the Lessee as regards the interpretation of any terms or conditions herein contained or as regards the rights obligations and duties of the parties under this agreement or any matter concerning or touching this agreement or arising out of it (except the decision whereof is herein expressly provided for) the same shall be referred for decision to an arbitrator not below the rank of Lt. Col. or Civilian Officer of equivalent status to be appointed by the Chief Engineer HQ (P) BEACON area and decision of such arbitrator shall be conclusive and binding on the parties hereto. The provisions of the Arbitration Act 1940 or the rules thereunder or any statutory modification thereof shall apply to such arbitration.'
2. The trial court held that, 'the present dispute which is for possession after the determination of the lease does not attract Section 34 of the Abitration Act as in the agreement there is no such Clause which seeks decision from an arbitrator in case of determination of the lease'. For this, he relied upon the decision of this court in L. Bhagwan Das Mengi v. Union of India (AIR 1961 J & K 39).
3. The argument of the learned counsel for the petitioner is that the view expressed by the trial court is erroneous. He urged that there are various clauses in the lease and various covenants which are imported into it by Section 108 of the Transfer of Property Act, which give rise to contractual rights and obligations. He particularly mentioned Clause (m) of Section 108 which, he said, is an implied term of the lease agreement and contended that the dispute in the present case is one which touches this Clause and consequently it is very much covered by the arbitration Clause in that it includes disputes as regards matters concerning or touching the lease agreement. In support of his contention he relied upon the decision of Bombay High Court in Narayan Lax-man Koltewar v. State of Bombay (AIR 1960 Bom 126).
4. There can be hardly any dispute with the proposition of law and this is the proposition enunciated in the case of Narayan Laxman (Supra) that the provisions of Section 108 so far as relevant have to be read into the lease agreement unless, of course, there is a local usage or a stipulation to the contrary between the parties.
5. The real question is whether the provisions of Clause (m) are applicable and cover the dispute in the present case. Clause (m) reads thus :--
'(m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left;'
6. There is nothing on the record to show that the operation of this Clause is excluded by the lease agreement or by any local usage. It necessarily follows that the provisions of this Clause must be read as part of the lease agreement between the parties. But that by itself does not clinch the controversy. The question still remains whether the dispute in the present case is relatable to Clause (m). On the terms of that Clause the only dispute that can possibly arise after the termination of the lease is whether the property is in as good condition as it was when the lessee entered into possession, allowance being given for changes caused by reasonable wear and tear or irresistible force. In the present case there is no such dispute. The dispute is whether the lessee is under an obligation to restore the possession. That dispute does not clearly fall within the ambit of Clause (m). Consequently the petitioner cannot invoke Section 34 of the Arbitration Act to his aid and ask for the stay of the proceedings of the suit.
7. In what I have said above, I have assumed that an application, under Section 34 was competent, The argument of the learned counsel for the petitioner is that the application was not really competent. He urged that the defendant can lawfully' ask for stay of the proceedings of the suit under Section 34 only if he has not taken any step-in-aid of the proceedings, But that was not so in the present case in which the defendant had twice asked for time to file the written statement before he moved an application under Section 34 of the Arbitration Act and consequently the application was incompetent inasmuch as the act of the defendant in asking for time to file the written statement was step-in-aid of the proceedings. For this, he relied upon the decision of this court in Hardutt Singh v. Mukha Singh (AIR 1973 J & K 46). In that case it was held that where the defendant instead of filing an application asking for the stay of the suit under Section 34 of the Arbitration Act sought opportunities for filing the written statement, they could not avail of the arbitration Clause of the agreement as they must be deemed to have waived that right.
8. In the present case the defendants I and 2 appeared for the first time on 3-8-1979 through Mr. K. N. Raina Advocate. He asked for time to file the written statement which was granted, and the case was adjourned to 10-8-1979. On 10-8-1979 further time was allowed and the case was again adjourned to 20-8-1979 on which day application under Section 34 was moved on behalf of the defendant No. 2. It is true that Mr. K. N. Raina had not filed any vakalatnama but that would not invalidate his appearance in that, being the standing counsel, he was a recognised agent of the Union and could put in his appearance without filing any power of attorney as contemplated by Order III Rule I C. P. C. I say so because learned counsel for the Union contended that the appearance was unauthorised as Mr. K. N. Raina had not filed his Vakalatnama and consequently if he appeared and asked for time to file the written statement, it cannot be deemed to be a step-in-aid of the proceedings.
9. The result, therefore, is that this revision petition fails, it is dismissed accordingly. The parties are directed to appear in the trial court on 10th Nov. 1980.