2023 PLP 57 (YLR)

SOHAIL NASIR, J.

Despite repeated calls since morning, none appeared on behalf of respondent so he is proceeded ex-parte.

2. A sale deed No.265 (P1), on 24.03.1973, was shown to be executed by Mst. Nooran Mai (predecessor in interest of petitioners) with regard to land measuring 4 Kanals and 9 Marlas in favour of Shafqat Ali (respondent) and on the basis thereof mutation No.57 (P2), on 27.06.1973, was also attested.

3. By filing the suit for declaration originally by Mst. Nooran Mai, on 14.04.2004, she had pleaded that the sale deed and mutation were result of fraud because she never alienated her property to respondent. As she had died during the proceedings before the learned trial court therefore, petitioners being her legal heirs were impleaded as plaintiffs in the suit.

4. In his written statement respondent defended the transactions and asked for dismissal of suit.

5. Issues were framed where after petitioners' evidence was completed. Still respondent had to produce his evidence, when on 17.02.2010 both the parties agreed to refer the matter to one Sikandar Dangra Lambardar1 of the village with an undertaking that they will be bound by his decision. On 24.02.2010 just after seven days, Mst. Nooran Mai submitted an application for the change of name of Sikandar Dangra on certain reasons. It was 25.02.2010, when she placed three names and finally both the parties made consensus on the name of Malik Ghulam Shabbir. They further maintained that no further application for change of (Arbitrator) shall be moved. Still the decision of was awaited, when Mst. Nooran Mai filed another application on 22.03.2010 for withdrawal of her offer for decision of case through which was turned down vide an order dated 26.04.2010 passed by the learned Civil Judge, Jahanian district Khanewal. A civil revision against that order also met dismissal vide a decision dated 09.07.2010 rendered by the learned Additional District Judge Jahanian and finally a Writ Petition (9552 of 2010) was too dismissed by this Court vide an order dated 17.03.2015.

6. Malik Ghulam Shabbir presented his report that the version of Mst. Nooran Mai was not correct and the property was rightly purchased by respondent. On the basis of said report the suit was dismissed vide judgment and decree dated 29.07.2015 passed by the learned trial court. Said decision was assailed by the petitioners through an appeal that was also dismissed vide judgment and decree dated 14.05.2016 passed by the learned Additional District Judge, Jahanian.

7. Feeling aggrieved from the decisions of two courts below, petitioners now have approached this Court through the instant Civil Revision.

8. Learned counsel for petitioners contends that both the courts below despite admitting the fact that Malik Ghulam Shabbir was appointed as 'Arbitrator' and the report submitted by him was an 'Award', proceeded to dismiss the suit without issuing notices to the parties, calling their objections on award and decision thereof. He further adds that it appears that both the courts below presumed that the matter was covered under Article 33 of the Qanun-e-Shahadat Order, 1984 (Order).

9. HEARD

10. The basis question before this Court is that if Ghulam Shabbir was appointed as 'Arbitrator' in terms of Section 22 of the Arbitration Act (X of 1940) {Act} or his status was of a person expressly referred to by the predecessor of petitioners as mentioned under Article 33 of the Order that is with reference to a kind of Admissions and is as under: - "Admission by person expressly referred to by party to suit.

Statements made by person to whom a party to the suit has expressly referred for information in reference to matter in dispute are admissions" Illustrations The question is, whether a horse sold by A to B is sound. A says to B: "Go and ask C. C knows all about it". C's statement is an admission"

11. The plain reading of the above provision makes it clear that the statement of person expressly referred for information with regard to matter in dispute is an admission. It, therefore, simply means that if a dispute is forwarded, the same has to be decided by the person on the basis of information that is already in his knowledge but he cannot inquire into the controversy, hear the parties and to decide the same. He has to simply make a statement about the fate of conflict on the basis of information, nothing more nothing less. The illustration finally speaks with clarity that whatever that person knows, that shall be considered as an admission. This question was considered by the apex Court in "Ghulam Farid Khan' case2 where parties had agreed for referring the matter to one Nawab Nasrullah Khan Khakwani with an undertaking that whatever the decision he shall make that will be binding on both the sides. The referee appeared and filed a document incorporating his 'decision' and without taking any further proceedings the trial court passed a decree in the suit in accordance with that decision. In appeal before this Court, the conclusion of the trial court was reversed on the ground that in fact the decision of referee was an 'Arbitration Award' and the trial court could not have made it a rule of court without first giving an opportunity to the parties to file objections thereto and the matter was remanded back to the trial court. The Hon'ble Supreme Court of Pakistan while taking into consideration Article 33 of the Order observed that: - "It is therefore difficult to accept the contention of the appellant that the 'decision' presented by Hafiz Nasrullah Khan before Court was a statement within the meaning of Article

33. The authorities cited by learned counsel for the appellant in support of his contention are easily distinguishable. In none of these cases, unlike the present case, the referee has been called upon to apportion the estate left by the common ancestor among the various heirs. On the other hand, the fate of the suits depended upon existence or non existence of certain facts. In Abdur Rahman v. Kalu Khan AIR 1935 Allahabad 118 the sole question for consideration was if the mortgagor had paid Rs.1,000 for adjustment against the mortgage amount. In Akbari Begum v. Rahmat Hussain AIR 1933 Allahabad 861 the dispute between the parties related to the existence of certain oral gifts. In Umrai Ali Khan v. Intizami Begum AIR 1939 All. 176, the matter in controversy was whether the plaintiff had any interest in the property in dispute. In Suraj Narain Chaube v. Beni Madho Chaube AIR 1937 Allahabad 701, the question requiring decision was if the property in dispute had already been partitioned. In Himanchal Singh v. Jatwar Singh AIR 1924 Allahabad 570, the facts have not been stated in sufficient details to permit a proper understanding of the controversy arising therein; in any event, the person appointed as referee was asked to make a statement on the whole affair between the parties and not to give a 'faisla'. The statement sought could well have been with regard to the existence or non existence of certain material facts. The case cited as Subbaraju v. Denkatramaraju AIR 1928 Madras 1025 is clearly distinguishable, for, here the question under examination was whether an arbitration award obtained during pendency of the suit but without the intervention of the Court could be acted upon by the Court. In Rahmat v. Residents of village and others 1988 CLC 1922 the controversy once again rested upon a simple question of fact, that is, whether the property appropriated by the defendants was part of the Shamilate Deh? The precedent cited Muhammad Saleem v. Muhammad Akram PLD 1971 SC 516 has no relevance to the present appeal"

12. The apex Court was further pleased to notice that the parties were obviously not seeking any information from Hafiz Nasrullah Khan but a 'faisla', so despite the use of word 'Referee' in the joint application the real intention of the parties was to appoint an arbitrator for resolving the dispute.

13. Same question again came for deliberation before this Court in Sher Muhammad's case3 where the word 'informa-tion' used in Article 33 of the Order was interpreted and it was held that:- "A Referee cannot procure, determine or inquire into facts to obtain the information sought by the referring parties. Statement of information under Article 33 does not require that the Referee makes an effort to collect or decipher the said information. The information must be in his knowledge prior to his appoint-ment as a Referee. Illustration to Article 33 clearly provides that "C knows all about it." This imputes prior knowledge of the relevant fact to the Referee. He can however, make an effort to juggle or refresh his memory by consulting his notes or going through his diary but cannot inquire or discover new facts and base his information on the same. He cannot embark on a fresh inquiry to determine the fact" "Any fresh inquiry or deter-mination of facts requiring any act of assessment, verification or valuation to be undertaken goes outside the scope of a statement of information under Article 33 of the Qanun-e-Shahadat Order, 1984. Any such Act or determination or verification transforms the Referee into either a Local Commission or an Arbitrator as the case may be"

14. Reverting to the case in hand, the very first order dated 17.02.2010, when parties agreed for referring the matter to Sikandar Dangra, was as under:-- "Present: Parties in person along with their counsel. Both the parties are agreed that their matter be referred to Sikandar Dangra Lumberdar Deh and they will be bound to the decision of the above said Lumberdar. Let a notice be issued to the above said Lumberdar with complete address for 25.02.2010. The defendant is hereby directed to receive the notice from the court and with the assistance of Process Server the Lumberdar be served for the date fixed"

15. The application moved on 24.02.2010 by Mst. Nooran Mai shows that she categorically observed that Sikandar Dangra was appointed as an Arbitrator/Referee and in prayer clause she also used the same words Arbitrator/Referee. The order dated 25.02.2010 on this application is quite relevant and reproduced as under: -

16. The record also indicates that on 18.03.2010 Malik Ghulam Shabbir (Arbitrator) submitted an application to the learned trial court seeking an adjournment in the matter and it was as under: -

17. Finally the report submitted by Ghulam Shabbir Arbitrator was as under:-

18. From the facts referred and orders reproduced above, it is manifest that Ghulam Shabbir was appointed as an 'Arbitrator' and not a person referred for information. Even the application by Ghulam Shabbir seeking an adjournment and the final report have made it clear that after the matter was sent to him, he inquired, heard and asked the parties for further proofs and finally came to a view that the version of respondent was correct. Both the courts below in the impugned judgments have also declared Ghulam Shabbir as an 'Arbitrator' and his decision as 'Award' therefore the next question arose is that if it was an 'Award', whether after receiving the same, the learned trial court could decide the suit straightaway or not? This goes without saying that on submission of 'Award' it cannot be made a rule of court without first giving an opportunity to the parties to file the objections thereto and decision thereof hence such omission on the part of learned trial court that was also ignored by the learned appellate court is an illegality not curable under the law.

19. Resultantly, this Civil Revision is allowed. Impugned decisions of both the courts below are set-aside. Case is remanded back to the learned trial court where the suit shall be deemed to be pending and will proceed from the stage when the 'Award' by the 'Arbitrator' was filed. The parties are free to file their objections, if so advised and the matter shall be decided thereafter by the learned trial court in accordance with law. MHS/N-10/L Case remanded.