2004 PLP 902 (SCMR)

Nemo for Respondents. Date of hearing: 29th November, 2001. HAMID ALI MIRZA, J.‑‑‑These civil petitions for leave to appeal are directed against common order dated 29‑5‑2001 passed by learned Division Bench of the High Court of Sindh in High Court Appeals Nos.139 to 141 of 2001 (Government of Pakistan through Chief Engineer (South) Pak. P.W.D. v. Messrs Haji Muhammad Siddique, Haji Lakhmir and another) whereby the said appeals were dismissed in limine.

2. Brief facts of the case are that a contract for the work of "Providing Minimum Facilities at Civil Aerodrome at Jacobabad (Phase 1)" was awarded to the respondent Messrs Haji Muhammad Siddique and Haji Lakhmir in the year 1965‑66 wherein as per clause 25 of the agreement it was mutually agreed that in the event of any dispute, the matter would be referred to the Sole Arbitrator. During the course of execution of work and finalization of accounts of the respondent Contractor, certain disputes arose between the parties in respect of the claims of the respondent/contractor which were rejected by the petitioner being .not admissible. It appears from the record that the respondent had moved the High Court in arbitration case Judicial Miscellaneous Applications Nos. 19, 20 and 21 of 1974 in terms of arbitration clause in the agreement between the parties and thereafter through Judicial Miscellaneous Applications Nos.45, 46 and 47 of 1992 and Suit No. 1141 of 1998. It also appears that prior to appointment of Mr. B.A. Memon, Project Director, Federal Government Housing Foundation. Karachi as Sole Arbitrator Mr. Mushtaq Hussain. Superintending Engineer (Central), (ii) Mr. Sultan Haider, Superintending Engineer (Civil) and (iii) Mr Sarfaraz Ahmed Mirza, Superintending Engineer were respectively appointed as Arbitrators time and again. It may be pointed out that the said contract of work pertained to Ministry of Defence/Civil Aviation Authority and the petitioner viz. Pak. P.W.D. was only to execute the work on behalf of the said Ministry of Defence and the said project was already handed over to Civil Aviation Authority. During the course of proceedings it was also pointed out by the Chief Engineer, (South) Pak. P.W.D. Karachi that Civil Aviation Authority be impleaded as party in the proceedings but the respondent/contractor neither impleaded the Ministry of Defence nor Civil Aviation Authority as party to the proceedings. Mr. Sultan Haider was appointed as Arbitrator under the Arbitration Act in pursuance of Arbitration clause in the agreement between the parties in Judicial Miscellaneous Applications Nos.19, 20 and 21 of 1974 by the High Court at the instance of the respondents who in the said capacity issued notices to the parties and their counsel wherein respective parties filed their claims and counter‑claims. The High Court as per order dated 17‑12‑1975 ordered to give award within a period of four months. Thereafter Mr. Zia Pervaiz, learned counsel on behalf of the respondents as per his letter dated 20‑2‑1979 requested for the change of Arbitrator in place of Mr. Sultan Haider as the said Arbitrator could not give the arbitration award within the stipulated period consequently as per letter dated 24th July, 1994 Mr. Sarfraz Ahmad Mirza wrote a letter to the Director General Pak. P.W.D. Islamabad stating therein that he was Superintending Engineer when he was appointed by the High Court as Sole Arbitrator in Judicial Miscellaneous Applications Nos.45, 46 and 47 of. 1992 to settle the dispute between the parties but he was no longer Superintending Engineer and was promoted as Chief Engineer therefore he nominated Haji Bashiruddin Memon, Superintending Engineer, Project Circle No.II Pak. P.W.D. Karachi as Sole Arbitrator. Respondent No.2 Haji Bashiruddin Memon gave the award on 14th July, 1998 to which the petitioner filed objections before the learned Judge in Chambers in Suit No. 1141 of 1998 whereupon the learned Judge passed an order on 4‑6‑1999 making the award as rule of the Court. The petitioner preferred High Court Appeals Nos. 138 to 140 of 2001 which were dismissed as per impugned judgment, hence these petitions.

3. We have heard learned Deputy Attorney‑General for the petitioner and perused the record.

4. Contentions of the learned Deputy Attorney‑General for the petitioners are that the learned Division Bench of the High Court and learned Judge in Chambers, have, not considered objections filed by the petitioner to the filing of award by the Arbitrator who was not competent and authorized under the law to give award, considering that the learned Division Bench also observed that the order of learned Judge in Chambers was not a "speaking order" but yet dismissed the appeal. He further submitted that the learned Division Bench and the learned Judge in Chambers did not consider the fact of not impleading necessary parties viz. Ministry of Defence and Civil Aviation Authority in the proceedings to whom the project belonged but made the executing Agency viz. the petitioners liable for the alleged claim which was not sustainable in law A though from the very beginning the said objections were brought on the record and further that the award made and filed by an unauthorized illegally appointed Arbitrator which award could not be termed to be an Award in the law hence it conferred no right of claim upon the respondent. He also submitted that sufficient cause was shown for delay in filing of appeals before the learned Division Bench but the same was not considered so also the, merits of the case, and the impugned judgment was passed without applying mind and considering the relevant provisions of law.

5. We find that prima facie there is substance and merit in the contentions raised by the learned Deputy Attorney‑General for the petitioner. Accordingly, we grant leave to appeal to consider the contentions raised. Civil Miscellaneous Appeals Nos.284‑K to 286‑K of 2001. Operation of the impugned judgment is suspended till the decision of these appeals. M.H./G‑144/S Leave granted.