1995 CLC 681 (PLP)

Muhammad Ashraf Khan for Petitioner. Riaz Karim Qureshi for Respondent. Date of hearing: 25th May, 1994. This revision was directed against the judgment and decree dated 24‑1‑1985 whereby the appeal of Hassan Muhammad, respondent was accepted, award dated 9‑8‑1976 was made rule of the Court and decree in terms thereof was passed.

2. The relevant facts, briefly, stated are that a suit for specific performance of agreement dated 16‑2‑1973 was filed by Haji Mahmood Ali petitioner. This agreement was statedly in continuation of the previous agreements dated 21‑10‑1967 and 27‑11‑1967 and other agreements. The suit was resisted by the respondent and during the pendency of proceedings, on 14‑9‑1976 an application was submitted by the parties for reference of the dispute, subject‑matter of the suit, to five nominated arbitrators. The matter was accordingly referred to arbitrators. On 7‑8‑1976 the petitioner submitted an application for cancellation of arbitration agreement as he had lost confidence in the majority of arbitrators. This application was still pending when the award dated 9‑8‑1976 written statement by one Abdul Ghani but signed by all the arbitrators was submitted to the Court. An application under sections 30 and 33 of the Arbitration Act was then filed by the petitioners challenging the award on 9‑2‑1977. The learned trial Court vide order dated 18‑5‑1982 set aside the award. This order was then challenged in appeal by respondent before the learned Additional District Judge. During the pendency of appeal, an application for disposing the appeal on the basis of compromise was filed on 7‑3‑1984. The agreement of compromise was also dated 7‑3‑1984. This application was, however, rejected.

3. At this stage, it may be noted that this compromise agreement was entered into by the general attorney of respondent with the petitioner. The power of attorney of said general attorney, namely, Muhammad Siddique had been rescinded by a registered sale‑decd dated 15‑2‑1984. Appeal was then ultimately accepted by the learned Additional District Judge vide judgment dated 24‑1‑1985. This led to filing of the present revision petition.

4. I have heard learned counsel for the parties and have also gone through the impugned judgment as well as documents on record. The learned appellate Court has relied on the statements of Muhammad Sharif and Nisar Ahmed, two arbitrators, and arrived at the conclusion that misconduct of any of the arbitrators could not be established and as such there is no basis for setting aside the award. The salient features which the learned appellate Court failed to notice may first be stated. A perusal of the award shows that the arbitrators had made secret enquiries as well. The material information gained in these secret enquiries which statedly influenced the mind of the arbitrators was not disclosed to the parties. In the first meeting when the parties were heard, Nisar Ahmad, arbitrator, was admittedly not present. The next day for the meeting of the arbitrators and production of evidence by the parties was fixed for 8‑8‑1976. On 8‑8‑1976, the petitioner had submitted an application for revocation of the arbitration agreement on the ground that all the arbitrators have joined to act against the petitioners. If that was so, it is natural that the petitioner would not be attending such proceedings or otherwise would ask the arbitrators not to proceed till the decision of his application submitted to the Court. Again statements of Muhammad Sharif and Nisar Ahmed, two arbitrators, are divergent as the statement of Nisar Ahmed does not go in line with the statement of Muhammad Sharif, arbitrator. Nisar Ahmad stated that the parties were taken to the mosque for the purpose of making statements on oath. No such event was mentioned by Muhammad Sharif nor the same finds mention in the award. The award shows that the proceedings were held on 8‑8‑1976 but the date under the signatures of the arbitrators is 9‑8‑1976. There is no mention that after hearing on 8‑8‑1976, the matter was adjourned for announcement of the award or decision of the arbitration on the next date, that is, 9‑8‑1976. These features were sufficient for setting aside the award but were not unfortunately noticed by the learned Additional District Judge.

5. For all these reasons the award as well as the impugned judgment is set aside. Reference to the arbitration having, thus, been rendered abortive, the suit will have to be proceeded and decided in accordance with law. The revision petition succeeds and is allowed in the above terms leaving the parties to bear their own cost. The parties are directed to appear on 9‑7‑1994 before the Senior Civil Judge, Toba Tek Singh who will summon the record of the suit and shall proceed to decide the same in accordance with law within a period of six months. H.B.T./M‑1653/L Revision allowed.