1980 PLP 1854 (CLC)

Representation

• F. K. Kureishy for Petitioner.
• Muhammad Hussain Naqashbandi for Respondents.
• 2. The brief facts .of the case are that the petitioner entered into a contract with the Executive Engineer, Public Health Engineering Division, Lahore, respondent No. 2, in the year 1966. The contract provided that any dispute arising between the parties was to be referred to the arbitration of the Superintending Engineer, Public Health Engineer Circle, Bahawalpur, who was named as the sole Arbitrator. It is, common ground that the Superintending Engineer declined to function as an Arbitrator whereupon the petitioner moved an application under sections 5/20 of the Arbitration Act, 1940. The Court appointed Mr. Zaheer Ahmad Parvez, Director Works, Office of the Chief Engineer, Punjab, Public Health Engineering Department, Lahore, as the sole Arbitrator. Mr. Zaheer Ahead Parvez died on 10-6-1974 before he could make any award. On the application of the petitioner the Court appointed Mr. Muhammad Rashid Ahmad, Advocate, as the sole Arbitrator. In doing so it relied upon the suggestion made by the respondent and a accepted by the petitioner.
• 3. On 28-2-1917 an application was moved before the learned Civil Judge by the respondent claiming that the reply dated 76-2-1976 which purported to supply four names to the learned Civil Judge for appointment of the Arbitrator was fraudulently tampered with and the name of Mr. Muhammad Rashid Ahmad, Advocate, was surreptitiously added. The respondent prayed for revocation of the authority of Mr. Muhammad Rashid Ahmad as an Arbitrator. In the application it was explained that - the reply dated 16-2-1976 (submitted on behalf of the respondent on 17-2-1976) originally contained three names only and no name was mentioned against Serial No. 4 against which only a line ins pen was drawn to avoid any manipulation. It was further submitted that Mr. Muhammad Ishaq AM who was supposed to submit the reply through the counsel manipulated the reply, erazed the line drawn in pen and added the name of Mr. Muhammad Rashid Ahmad, Advocate before submitting it in Court, whereupon the counsel for the appellant made a statement cam 3-3-1976 that in the event of Mr. Muhammad Rashid Ahmad being named as an Arbitrator the petitioner shall have no objection to his appointment. The learned Civil Judge in the context of the statement appointed Mr. Muhammad Rashid Ahmad, Advocate -as the sale Arbitrator.
• 5. I sent for the record of the cast and also examined the office copy available the respondent. In fact, it is a carbon copy of the original application submitted in Court and the learned counsel for the petitioner having examined the two documents, namely, the original application as well as the carbon copy, concedes this fact. Now while .the carbon copy does not contain the name of Mr. Muhammad Rashid Ahmad, Advocate, the application submitted before the Court does contain the name of Mr. Muhammad Rashid Ahmad, Advocate which only goes to show that the name of Mr. Muhammad Rashid Ahmad, Advocate has been added after the letter was originally typed with three names only.
• 6. The learned trial Court examined ' Mr. Anwarul Haq Qureshi, Assistant Director, Office of the Chief Engineer, Punjab Public Health Engineering Department, Lahore, who had signed the reply Exh. C-1 and also initialed its copy Exh. A W, 1/I. Ira his statement Mr. Qureshi categoric ally stated that the document Exh. C-I signed by him suggested the names of three persons only for filling up the vacancy arising as a result of the death of Mr. Zaheer Ahmad Parvez. The learned Civil Judge recorded a finding that the appointment of Mr. Muhammad Rashid Ahmad, Advocate had been secured by fraud and that his name had been added subsequent to its execution by Mr. Anwarul Haq Qureshi.
• 7. A perusal of documents Exh. C-I and Exh. A. W. 1/1 leaves no room fir any doubt that the name of Mr. Muhammad Rashid Ahmad, Advocate, did not originally appear in Exh. C. 1. and that it had been added subsequently to secure his appointment. The fact that Mr. Muhar3mad Rashid Ahmad, Advocate, alone was acceptable to the petitioner is suggestive of the fact that the petitioner was interested. in having him appointed as sole Arbitrator. I have no doubt in my mind that the appointment of Mr. Muhammad Rashid Ahmad, Advocate, had been secured by fraud and that it was rightly cancelled by the learned Civil Judge by his order dated 31-7-1977. By the same order the learned Civil Judge appointed Mr. Iqbal Ahmad 'Beg, Director, Office of the Chief Engineer Punjab, Public Health Engineering Department., Lahore, as the sole Arbitrator law substitution for) Mr. Muhammad Rashid Ahmad, Advocate. Rather than pursuing the case before the new Arbitrator appointed by the learned Civil Judge the petitioner has thought it fit to agitate the matter further before this Court.
• 9. I am afraid the argument is based upon complete, misconception, The respondent in this case had alleged a collusion between the petitioner and Mr. Muhammad Ishaq Alvi who appears to have inserted the name of a person acceptable to the petitioner. Had the learned counsel for the petitioner not made. a statement on 3-3-1976 to the effect that only Mr. Muhammad Rashid Ahmad, Advocate, is acceptable to them as the sole Arbitrator, 'they could have asserted with some amount of force that they had no hand in the appointment of Mr. Muhammad Rashid Ahmad, Advocate, as an Arbitrator. The fact that Mr. 4dvi had been suspended and at any rate was not examined by the petitioner also goes to show the absence of bona fid on his part. In a transaction where the allegation is of collusion between the petitioner and Mr. Muhammad Ishaq Alvi, it cannot be reasonable expected of the respondent to have examined Mr. Muhammad Ishaq Alvi his own witness. On the contrary it was for the petitioner to have examined Mr. Alvi, if he so desired, so that the respondent who alleged collusion between the petitioner and Mr. Muhammad Ishaq Alvi could have the opportunity of cross-examining him. That not having been done the petitioner has failed to establish his bona fides. The fraud vitiates the most solemn proceedings and in this case there was enough material for the learned Civil Judge to come to the conclusion that the appointment of Mr. Muhammad Rashid Ahmad, Advocate, was secured by fraud and there was every justification for revocation of his authority by the impugned order dated 31-7-11477,

Headnotes / Summary

Judgment & Decree