P L D 1994 Lahore 452 (PLP)

The First Appeal arises out of an application under sections 14 and 17 of the Arbitration Act, 1940 filed by Mst. Maqsood Bibi, respondent herein, for making an award delivered by Retd. Col. Ahmed Iqbal Tiwana, the arbitrator, rule of the Court. Apart from the application, the appellant moved an objection petition for setting aside the award. The main objection raised by him was that he had never agreed to the appointment of any arbitrator.

2. The learned Civil Judge, after framing the necessary issues, recorded the evidence 'of the parties on the basis of which he overruled the objections raised by the appellant. He, however, observed that in addition to the parties before him, the arbitrator had also decided the rights of minor daughter of respondent No. 1 who was not a party to the arbitration agreement and to that extent the award was invalid. He consequently set aside that part of the award which related to minor which was made rule of the Court to the extent of the appellant. Hence this appeal.

3. Syed Muhammad Kaleem Ahmad Khurshid, the learned counsel for appellant, has strenuously contended that the appellant had never agreed to the appointment of respondent No. 2 as arbitrator nor did he execute any agreement for his appointment. It was pointed out by the learned counsel that the arbitration agreement dated 31st July, 1988 was not produced in original by respondent No. 1 who purposely withheld it with a view to avoid comparison of the thumb‑impressions on that document with the admitted impressions of the appellant. He also challenged the validity of the order allowing the respondent No. 1 to lead secondary evidence.

4. The other argument raised by the learned counsel for appellant is that the arbitration agreement had been admitted in evidence in violation . of Article 79 of the Qanun‑e‑Shahadat, 1984 which requires production of two attesting witnesses as a condition precedent for the admission of document in evidence.

5. In reply, the learned counsel for respondent No.l explained that the original arbitration agreement had been lost by the arbitration and as such, respondent No.l was entitled to produce secondary evidence and was rightly allowed by the trial Court to do so vide its order dated 19‑7‑1990. According to the learned counsel, execution of the agreement for arbitration stands fully proved by the statement of witnesses produced by the appellant as also that of the arbitrator before whom appellant had admitted execution of the agreement. Learned counsel also submitted that the reliance of the learned counsel for appellant upon Article 79 of the Order was misplaced.

6. The legal objection raised by the learned counsel for appellant as to the admissibility of the arbitration agreement on the strength of Article 79 of the Order, 1984 has no force. This Article reads as under:‑‑ "

79. Proof of execution of document required by law to be attested. : ‑‑ If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." As is obvious from the bare perusal of the Article itself, it has no universal application and does not apply to each and every kind of document. On the other hand, article is restrictive in nature and applies only to chose A documents which require by any law to be attested by two marginal witnesses. Learned counsel for appellant is unable to point out any provision in the Arbitration pct or for that matter any other law for the time being in force requiring attestation of arbitration agreement by two witnesses. Consequently, 8 Article 79 would not be applicable to agreement to refer the dispute to arbitration.

8. Article 79 of the Qanuwe‑Shahadat,1984 corresponds to section 68 of the Evidence Act, 1872 with the difference that under section 68 of the Act only one attesting witness was required to be called for proving the document while the requirement of Article 79 of the Order is that two attesting witnesses must be examined to prove the execution of the document. To that extent, the principle contained in Islamic Jurisprudence appears to have been adopted. But as already observed, this, principle would only apply to those documents which under the law require attestation of two witnesses and not otherwise. While interpreting section 68 of the Evidence Act, 1872, it was observed by the Lahore High Court in Nand Lal v. Mt. Lakhwi and others (AIR 1939 Lahore 414) that: "There is no law in force in the Punjab Province requiring a deed of adoption or gift to be attested by witnesses and this precludes the operation of section 68 in the chatter of proof of execution of such a deed." Similarly, in Maharaja .of Faridkot State v. Anant Ram and others (AIR 1929 Lahore 1), it was laid down by a Division Bench of Lahore High Court that: "There is no law which requires the attestation of a sale deed so far as Punjab is concerned, S. 68 therefore has no application to sale deed in that province:"

9. Learned counsel for appellant has, however, urged that under the Islamic principles of evidence, all deeds involving financial and future obligations are required to be attested by two witnesses and as arbitration agreement is one of the documents creating future application, it falls within the purview of Article 79 of the Order. This argument of the learned counsel cannot be accepted. The principles of Islamic law of evidence, so far as they have not been codified or adopted by Qanun‑e‑Shahadat, 1984 are. not per se applicable and cannot be pressed into service. Even otherwise, it is highly p doubtful as to whether an arbitration agreement can be said to be a document involving financial and future obligations. Learned counsel is unable to cite any authority or text‑book to show that under the Islamic Jurisprudence arbitration agreement is one instrument which requires attestation by two witnesses.

10. There is, however, merit in the next contention of the learned counsel for the appellant that the trial Court has erred in allowing respondent No. 1 to lead secondary evidence by producing a photostat of the arbitration agreement in evidence. In the application dated 11th July, 1990 for permission to produce secondary evidence, it was alleged by the respondent No. 1 that she was unable to produce the original arbitration agreement and the power of attorney which had been handed over to the arbitrator who has misplaced the same as was admitted by him while appearing as a witness. This application was allowed by the Court on 19th July, 1990 primarily on the ground that the two aforesaid documents had been mentioned and referred to in the application under sections 14 and 17 of the Arbitration Act, 1940 and, therefore, could not be said to have been subsequently fabricated. It was also observed that the arbitrator had stated before the Court that he has misplaced the documents which were not available.

11. According to the Article 79 of the Order, secondary evidence can only be permitted if the loss of the original is proved or if it is shown to be in possession of a person who is not subject to the process of the Court. The arbitrator, while appearing as witness, did not state that the original agreement had been lost by him but deposed that: The statement of arbitrator is highly vague and was insufficient to prove loss of the original. From the statement, it is quite apparent that even arbitrator himself was of the view that agreement was lying in his papers but which was not at that time traceable. In these circumstances, before allowing secondary evidence, the trial Court should have insisted that efforts be made to trace the original document and to produce the same especially when the execution of the document had been denied by the appellant. Some positive proof should have been produced before the respondent No. 1 could be permitted to lead secondary evidence. It is also to be seen that though in the application for production of additional evidence, respondent No. 1 had stated that there were .two documents namely power of attorney and agreement for appointment of arbitrator which had been lost yet subsequently respondent No.l herself produced the original power of attorney.

12. In Babu and another v. Dalip Singh and another (AIR 1940 Lahore 311) it was observed that where the loss of the original was not proved, copy of the same cannot be accepted in evidence. To the same effect is Babu Anand Behari Lai v. Messrs Dinshaw and Co. Bankers Ltd., Lucknow (AIR (33) 1946 Privy Council 24) wherein it was ruled that a copy of document cannot be admitted in evidence unless the loss of the original is proved. Reference may also be made to Jaldu Ananta Raghuram Arya and others v. Ranjah Bommadevara Naga Chayadevamma and others (AIR 1958 Andh. Pra. 418) wherein it was observed that: "Every deed being the best evidence of its non‑production will necessarily raise a suspicion in the mind of the Court and great care and circumspection would be needed in order to decide whether there has been really a bona fide loss. Section 65 permits the leading of a secondary evidence only where the original has been destroyed or lost. There must be a sufficient proof of the search for the original to render secondary evidence admissible. It must be established that the party has exhausted all the sources and means in the search of the document, which were available to him. No doubt permitting a party to lead secondary evidence, being satisfied about the loss of the original, is a matter of discretion left to the trial Court and the appellate Court would not ordinarily interfere with the exercise of such discretion. But where the trial Court has come to the conclusion that the loss of the document has been established without taking into consideration the prerequisite conditions that are required by the Evidence Act, the Appellate Court would certainly interfere with the discretion wrongly exercised by the lower Court."

13. As there was a serious dispute between the parties regarding the execution of the arbitration agreement, it was all the more essential that the Court should have insisted upon the production of the original so that the thumb‑impression appearing thereon could be compared with the admitted thumb‑impression of the appellant.

14. It follows from the above discussion that the trial Court was not justified in permitting respondent No. 1 to lead secondary evidence. The application filed by respondent No. 1 dated 11th July, 1990 for permission to lead secondary evidence does not appear to have been correctly decided. The case, therefore, has to be remanded to the trial Court for decision afresh. In view of what has been stated above, this appeal is allowed; the impugned order is set aside and the case is remanded to the trial Court for decision afresh in the light of the directions/observations above. No order as to costs, M.BA./S‑462/L, Appeal allowed