1987 PLP 383 (SCMR)

SAAD SAOOD JAN, J.‑‑ This is a petition for special leave to appeal from the order, dated 19‑2‑1986 of the Lahore High Court whereby, in revisional jurisdiction, it set aside the order, dated 15‑6‑1985 of a Civil Judge at Lahore and held that the time to file objections by the petitioner to an arbitration award stood expired.

2. The petitioner awarded a contract to the respondent to provide toilet facilities in certain of its premises. A dispute arose between the parties whereupon the respondent on 23‑4‑1979 filed an application under section 20 of the Arbitration Act before a civil Court at Lahore for the appointment of an arbitrator to resolve the dispute. The civil Court allowed the application and appointed an arbitrator as prayed by the respondent. The arbitrator submitted his award in the Court on 13‑9‑1983 whereby he held That the respondent was entitled to receive a sum of Rs.4,83,523 from the petitioner. The learned Civil Judge who was seized of the matter sent notices to the petitioner through its counsel Mr. Said Ali Shah and General Manager on 14‑9‑1983 informing it that the award had been filed in the Court and that it should file its objections within the period prescribed by law. The next date of hearing was fixed as 9‑10‑1983. The notice sent to Mr. Said Ali Shah was received by him on 10‑10‑1983. There was some dispute whether the notice sent to the General Manager had in fact been received by him, but this is no longer relevant, as the Court has found that the notice should have been addressed to Chairman of the petitioner railway and not to its General Manager. However, that may be, before the next date that is 9‑10‑1983, the Civil Judge seized of the case was transferred. Nevertheless, Mr. Said Ali Shah attended the Court and received a copy of the award presumably from the reader. The case was adjourned to 5‑11‑1983 by the reader. On the last mentioned date Syed Muhammad Naqi, Advocate, appeared in the Court on behalf of the petitioner. By this date the petitioner had not yet filed any objections to the award. Taking advantage of this omission, the respondent moved the learned Judge to make the award the rule of the Court as the time for filing the objections had expired. This prayer was resisted by the petitioner. Consequently, the learned Judge framed an issue to the effect whether the statutory period of limitation for filing objections to the award had expired. Both the petitioner and the respondent led evidence in support of their respective positions. The plea of the petitioner was that Mr.Said Ali Shah was no longer its counsel as his engagement had been terminated as far back as 10‑10‑1982 and for that reason service of notice upon him could not be regarded as service upon .it. The learned Judge accepted this plea and by art order, dated 15‑6‑1985 decided the issue against the respondent.

3. From the order of the learned Civil Judge the respondent preferred a revision petition before the High Court. The High Court took the view that even though the appointment of Mr. Said Ali Shah had been terminated by the petitioner, yet he continued to be counsel of the petitioner for the reason that leave of the Court had not been obtained in respect of his withdrawal from the case as required by Rule 4(2) of Order III of the Code of Civil Procedure; further, as provided by Rule 5 of the same order, any process served on counsel was presumed to be duly communicated and made known to the party whom he represented. Consequently, the petitioner must be presumed to have received knowledge of the filing of the award on the day when the notice was actually delivered to Mr. Said Ali Shah. Since the petitioner did not care to file objections within the prescribed period starting from the date of the receipt of the notice by Mr. Said Ali Shah the limitation to file the same stood expired. Accordingly, it accepted the revision petition and set aside the order of the learned Civil Judge.

4. In support to this petition it is contended that Mr. Said Ali Shah was standing counsel of the petitioner when the application under section 20 of the Arbitration Act was filed by the respondent. However, on 10‑10‑1982, before the award was filed in Court his appointment was terminated and he was directed to hand over files of all the pending as well as decided cases to the Law Officer of the petitioner. Thus, on the day the notice with regard to the filing of the award was sent to Mr. Said Ali Shah he no longer represented the petitioner. It was further contented that Rule 4 of Order XXVII made a special provision for the service of notices on Government Department. By this provision the Government Pleaders were appointed as the agents for the purpose of receiving process issued against the Government. This provision being of a special nature overrode the general provision contained in Rule 5 of Order III. Apart from that, as held in Wali Muhammad v. Noor Begum P L D 1956 Lah. 75 the presumption created by Rule 5 of Order III was a rebut table and it stood effectively rebutted when the petitioner produced a copy of the order whereby the appointment of Said Ali Shah was terminated on 10‑10‑1982 by the petitioner. Thus, the High Court was not right in taking the view that the service of the notice made upon Mr. Said Ali Shah was as effective as if it had been made on the petitioner itself.

5. The contentions raised on behalf of the petitioner need consideration. We would accordingly grant leave to the petitioner to appeal from the order of the High Court.

6. We have been informed that the petitioner has deposited the amount awarded to the respondent in the executing Court. Let the executing Court place this amount in a Khas deposit with a nationalized bank so that it can earn profit during the pendency of this appeal. M. I. Leave granted.