2003 PLP 1411 (CLC)

(vi) That the Agreement dated 10-9-1996 executed between Awami Hajj Trust and Dallah Real Estate is against public interest and the same as such is void and cannot be enforced at law."

8. The respondent filed a written reply on 12-2-1999. The very first objection taken on behalf of the respondent to the said application needs, to be reproduced here and is accordingly reproduced as follows:-- "(1) Under section 33 of the Arbitration Act, 1940, only a party to an arbitration agreement or any person claiming under such party can file an application before the Court. Since the petitioner denies being a party to the arbitration agreement which is subsumed in the agreement dated 10-9-1996 (copy attached as "A") between the Awami Hajj Trust (hereinafter referred to as AHT) and the respondent and disclaims any relationship (even as successor) with AHT, it does, not have locus standi to file the application under reply. The application is, therefore, incompetent." On merits reference was made to the said MOU and the said agreement stating that notwithstanding the fact that the said Trust was a party to the said agreement, the Government of Pakistan is bound by the said agreement.

9. The learned trial Court framed the following issues:-- (1) Whether the petitioner has no locus standi to file the instant application? OPR (2) Whether this Court lacks jurisdiction to try the matter in dispute? OPR (3) Whether the petitioner is not the legal ~ representative of the defendant Awami Hajj Trust. If so, its effect? OPP (4) Whether the agreement dated 10-9-1996 executed between Awami Hajj Trust and Dallah Real Estate is an illegal and invalid instruments? OPP (5) Whether the assumption of jurisdiction by the International Court of Arbitration, Paris is of no legal effect? OPP (6) Relief.

10. The learned trial Court heard the parties on the basis of their respective affidavits. It proceeded to decide Issue No.1 and to decide it against the petitioner. The application was accordingly dismissed vide order dated 19-6-1999.

11. Learned counsel for the petitioner with reference to the judgment in the case of Messrs Badri Narayan Agarwala v. Messrs Pak Jute Balers Ltd. PLD 1970 SC 43 argues that notwithstanding the position taken by the petitioner that it was not a party to the agreement yet it had locus standi to file the application. Now the learned counsel for 'the respondent finds himself at the horns of a dilemma. His client has not opted to challenge the said finding and while insisting that this civil revision is time-barred and ought to be dismissed, in fact, he has: argued that the finding of the learned trial Court is not correct and ought to be set aside in view of the said factual background explained in detail by him and as noted by me above. According to the learned counsel the Government of Pakistan was fully involved in this case and is liable under the said agreement between the said Trust and the respondent and has rightly been proceeded against before the said International Tribunal of Arbitration.

12. I have gone through the records appended with the civil revision as also the records appended by the learned counsel for the respondent vide C.M. No.284/C of 2003, with the assistance of the learned counsel for the parties. I have already reproduced above the factual history of this case. Now before I proceed further I may note that although the learned trial Court had dismissed the application yet it has been dismissed on the basis of findings which to my mind by all means are in favour of the petitioner inasmuch as the learned trial Court had held that the petitioner is neither a party to the arbitration agreement nor claims under any of the parties to the agreement. I may reproduce here the rather brief findings of the learned trial Court:-- "The agreement was signed between Awami Hajj Trust and Dallah Real Estate. The Government of Pakistan did not sign the agreement. It was signed by Awami Hajj Trust which was creation of a statute. The applicant has also claimed that it is not a legal representative or assignee of the Awami Hajj Trust. The Ordinance which created the Awami Hajj Trust was also silent on the question of legal representative/assignee of Awami Hajj Trust. The applicant cannot move the instant application not being person claiming under party to an arbitration agreement'. In this view of the matter, the applicant has no locus standi to file the instant application. This issue is decided in favour of the respondent and against the applicant."

13. I have already referred in some detail to the agreement dated 10-9-1996 which contains the said arbitration agreement vice clause 23 thereof. There is no denial of the fact that the agreement was executed by the Awami Hajj Trust on the one hand and the respondent on the other: Now this Awami Hajj Trust was created under section 3 of the Awami Hajj Trust Ordinance, 1996. I am told that this Ordinance in terms of Article 89 of the Constitution was promulgated and repromulgated by the President of Pakistan. Lastly, it was repromulgated vide Ordinance No.LXXXI of 1996 published in the Gazette of Pakistan on 12-8-1996. Now the preamble of this Ordinance narrates that the President deems it expedient to provide for the establishment of an Awami Hajj Trust to mobilize savings from the pilgrims desirous of performing Hajj and investment thereof in the Islamic modes of investment and for facilitating Hajj operations and matters connected therewith and incidental thereto. Now as stated by me above, the Trust was established under section

3. The purpose and objects of the Trust were to

"(a) mobilize savings from members; (b) invest savings of the members in appropriate schemes yielding maximum returns and credit profits accrued therefrom in the members' accounts; (c) defray the expenses of Hajj of individual members out of their savings and profit accrued thereon; and (d) adopt measures for facilitating the performance of Hajj by members."

14. Under section 5 of the general direction and administration of the Trust and its affairs was to vest in the Board of Trustees consisting of the persons mentioned therein and these include the Federal Minister for Religious Affairs as Chairman and, inter alia, Federal Minister for Finance as Member. The Secretary, Religious Affairs Division, Government of Pakistan, was to act as Secretary of the Board. I also need to refer to section 10 of the said Ordinance which provides for establishment of a "Fund" to be known as "Awami Hajj Savings and Investment Fund" to be maintained by a Trustee Bank appointed under section 8 of the said Ordinance. Now according to this provision the Fund was to be financed from the following sources:-- (a) contribution and savings by the members; (b) contributions by philanthropists for the welfare of Hajjaj; (c) profit earnings and capital gains from the investments made out of savings of members; and (d) income from movable and immovable properties of the Trust."

15. A bare reading of the provisions of the said Ordinance would show that the Government of Pakistan and more particularly the Treasury/State exchequer of Pakistan does not figure anywhere in the whole of the scheme of the said Ordinance. Now according to the said agreement between the said Trust and the respondent, the Trust was to pay US $ one hundred million in advance within 30 days of the date of execution of the agreement. This was subject to respondent's arranging a financing facility for the "Trust" against guarantee of the G.O.P. and a counter-guarantee issued by the Trust and the Trustee Bank in favour of G.O.P. Now under section 8 of the said Ordinance the Trustee Bank was to be appointed by a Board of Trustee for collection of savings, maintenance of the accounts of the members, investments of the Fund in accordance with the directions of the Board and for efficient management of the Fund, I have already stated above the composition of the said Fund vide section 10 of the said Ordinance.

16. It will thus be seen that the entire exercise seems to be undertaken for the benefit of an entity which is not in picture at all i.e. the Haji intending to perform Hajj. It is his savings or the funds provided by him or on his behalf by philanthropists which was to form part of the said Fund against which a counter-guarantee was to be given. Be that as it may, this was an arrangement between the said Trust and the respondent. The said Ordinance stood enacted and its provisions are referred to in the- said agreement dated 10-9-1996. It is but to be assumed that the respondent was fully, aware as to whom it is dealing with and what is the financial source available. These certainly do not include the State Exchequer of Pakistan.

17. I, therefore, do find that the learned trial Court was very correctly found that the petitioner G.O.P. is neither a party to the said agreement nor it claims under any of the parties to the same. This being so the petitioner cannot be proceeded against under the said arbitration agreement which forms part of the said agreement dated 10-9-1996.

18. The learned counsel informs me that the International Tribunal of Arbitration has given a partial Award on 26-6-2001. I do find that the said learned Tribunal has held by way of a partial Award dated 26-6-2001 that the petitioner is bound by the arbitration agreement contained in clause 23 of the agreement dated 10-9-1996 and it is a proper defendant before the said Tribunal and as such the learned Tribunal has the jurisdiction in the matter. As stated by me above, the proceedings had commenced under section 33 of the Arbitration Act, 1940 in the year 1999 and the question gone into and decided by the learned Tribunal was being adjudicated by a competent Court in Pakistan. This being so, section 35 of the Arbitration Act, 1940 shall take effect: read with section 33 of the, said Act 1940.

19. The revision against the impugned order dated 19-6-1999 was initially filed in the Court of the learned District Judge at Islamabad. It was entrusted to a learned Additional District Judge. It will further be noted that the impugned order was announced on 19-6-1999 but was corrected by the learned Civil Judge on 17-7-1999. The copy of 'this order was applied for on 22-7-1999 and it was delivered on the same date. The revision was filed in the Court of learned District Judge on 1-9-1999. The respondent raised the objection in the course of limine hearing on 25-11-1999 regarding the pecuniary jurisdiction of learned Additional. District Judge. However, the case was admitted to regular hearing after rejecting the said objection. It appears that this order was challenged by filing Writ Petition No.2585 of 1999 in this Court. Interference was declined with a direction to the learned Additional District Judge to attend to the question of jurisdiction in accordance with law. This was done vide order dated 24-1-2000. The matter was then taken up by the learned Additional District Judge who vide judgment dated 25-10-2000 decided that he has no pecuniary jurisdiction and returned the revision for presentation in this Court: The revision was accordingly filed in this Court on 21-11-2000. Civil Miscellaneous No.2043/C of 2000 has been filed for condonation of delay. It has been stated that in the first instance the objection, to pecuniary jurisdiction was rejected. The matter was questioned in this Court and vide order, dated 24-1-2000 the Additional District Judge was directed to dispose of the matter of said jurisdiction. On 25-10-2000 the revision was ordered to be returned which was then returned on 3-11-2000. It has been stated that the civil revision was filed before the learned District Judge under a bona fide belief that jurisdiction vests in the said Court. Learned counsel for the respondent on the other hand vehemently urges that this is a case of gross neglect and not of a bona fide mistake. Now I find that starting from delivery of copy of the corrected judgment on 22-7-1999 the petitioner had three months to file the civil revision in this Court. The civil revision was filed within the said time on 1-9-1999 but before the learned District Judge, Islamabad. Although an objection was raised but was found by the learned Additional District Judge in favour of the petitioner vide order dated 25-11-1999. Then the matter remained pending in this Court in Writ Petition No.2585 of 1999 till 24-1-2000. The matter was ultimately decided by the learned Additional District Judge on 25-10-2000. In the peculiar circumstances of the case, the said lapse of time is not wholly attributable to the petitioner and an act of Court is certainly involved. To my mind the dictum laid down by the Honourable Supreme Court of Pakistan in the case of Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 is squarely attracted. I, therefore, allow the said application and condone the delay in the filing of this civil revision in this Court. The fact, however, remains that since the judgment of the learned trial Court by all means is in favour of the petitioner and the learned counsel for the respondent has remained unable to convince me to set the same aside, the petitioner cannot be termed to be a person aggrieved of the said judgment. Be that as it may, I have examined the records within the meaning of section 115, C.P.C. in the light of the arguments submitted by the learned counsel for the respondent. The civil revision accordingly is dismissed with the above observations. No orders as to costs. M.H./P-139/L Petition dismissed.