1993 PLP 2082 (CLC)

Gulzar Ahmad Qureshi for Petitioners. This petition under section, 115 of the C.P.C. seeks revision of an order passed by the learned Civil Judge Ist Class, Lahore, on 21‑2‑1993, whereby an application under section 12 of the Arbitration Act, 1940, filed by the petitioners was dismissed.

2. The dispute arises out of a contract awarded by the petitioner to the respondents for‑ construction of a Road Bridge over River Indus near Ghazi Ghat Guide Bank Right on 19‑7‑1979. Subsequently, some differences arose between the parties, which led to tiling of an application under section 20 of the Arbitration Act, 1940 by respondent No.1. for reference to these disputes to arbitration in accord4nce with clause 25‑A(c) of the agreement. It was accepted by the trial Court on.22‑2‑1986 and Ch. Munir Ahmad and Sheikh Ghulam Muhammad, Superintending Engineers, were appointed as arbitrators. That order' of the trial Court was impugned by the petitioners before this Court in C.R. 1644/86, which was dismissed on 28‑5‑1989. However, with the consent of the parties, Mr. Justice (Retired) Ataullah Sajjad was appointed as the sole arbitrator in place of the two arbitrators appointed by the trial Court. Later on, the petitioners filed C.M: 77‑C/90 praying for the review of the order appointing Mr. Justice (Retired) Ataullah Sajjad as the arbitrator. That application was allowed on 14‑7‑1992 on the ground that Mr. Justice (Retired) Ataullah Sajjad had been appointed Chairman of the National Industrial Relations Commission. Accordingly, this Court recalled the order of appointment of Mr. Justice (Retired) Ataullah Sajjad as arbitrator with the result that the order of the trial Court appointing Ch. Munir Ahmad and Sheikh Ghulam Muhammad, Superintending Engineers, as arbitrators stood restored.

3. It was thereafter that the petitioner applied under section 12 of the Arbitration Act, 1940, for revocation of the authority of the arbitration on the ground that as both the arbitrators had ceased to be Superintending Engineers and as such they could not act as arbitrators in view of clause 25‑A(c) of the agreement which contemplates a reference to arbitration to two officers of the department not below the rank of Superintending Engineers. That application having been rejected by the trial Court on 21‑2‑1993, the petitioner has come to this Court by filing this petition for revision.

4. Learned counsel for the petitioner in, support of this petition, has contended that as admittedly two arbitrators appointed by the trial Court had ceased to be Superintending Engineers on account of their retirement, they cannot be deemed to be officers not below the rank of Superintending Engineer and cannot, therefore, remain as arbitrators.

5. This contention of learned counsel for the petitioner has no force Admittedly, at the time when the two arbitrators were appointed by the trial Court, both of them were in the employment of the Government of the Punjab with the rank of Superintending Engineer and as such their appointment was perfectly in accord with the terms of the arbitration agreement. Their subsequent retirement from service is of no consequence and cannot denude the arbitrators of their authority to act as such after having been validly appointed. Somewhat similar controversy came before this Court in.West Pakistan through the Executive Engineer, Rawalpindi v. Messers Azhar Brothers (PLD 1977 Lahore 1013). In that case, the parties had agreed that the Superintending Engineer, Public Health Department be appointed as sole arbitrator to adjudicate upon the matter in dispute between them. It appears that before the award could be rendered by the said officer, he had been transferred from that post. One of the questions raised before this Court was as to whether the award has been announced by a person to whom the matter has been referred. The answer to this question was rendered in the affirmative. The following observations appearing in para. 10 of the judgment at page 1016 are instructive and may be reproduced with advantage:‑‑ "I am of the view that this argument based upon the interpretation of the statement on the basis of which the appointment was made, is without any merit. The agreement is only to the extent that a person who was a Superintending Engineer, Public Health Department at the time of making the statement would decide the matter as an arbitrator. It did not go farther, nor can it be interpreted to imply any disqualification on the part of such an arbitrator after‑ceasing to enjoy the post and status which he was holding at the time of appointment. The statement is only to the effect that such a person who is holding the post at that precise point of time shall decide the matter. The question of revocation of the authority of this arbitrator would therefore be subject to the sanction of the Court under the provision of section 5." Reference may also be made to Jai Dayal Pearey LAI v. Chunni Jal Parsotam Dass and another (AIR 1951 All. 359) and Federation of Pakistan v. H. Ghulam Mohy‑ud‑Din (PLD 1960 Lahore 677). In the result, this petition is without any force and is accordingly dismissed in limine.