P L D 1987 Quetta 209 (PLP)

I have perused the record and considered arguments advanced by learned counsel for parties. The first contention of learned counsel for petitioner relates to jurisdiction of trial Court in proceeding with the matter on merits. It is emphatically contended that agreement between the parties for referring the dispute to sole arbitrator was not revocable except with the leave of Court. It was thus suggested that in the absence of any specific order of Court superseding the reference, proceedings recorded in the matter, should be deemed unlawful. It may be seen that on the request of parties time for filing award was extended to various dates from 15‑11‑1985 to 9‑5‑1985 and thereafter even upto 10‑8‑1985 when trial Court resumed jurisdiction; award was not furnished. No doubt an agreement for arbitration arrived at between the parties is revocable only in the manner prescribed under sections 11 and 12 of Arbitration Act. However mode of filing award is regulated by the Court. The award is required to be furnished within specified period or extension granted by the Court for said purpose. Thus if time is not extended then award cannot be entertained resultantly agreement for arbitration is frustrated. It may be noted that Court cannot helplessly throw itself at the mercy of arbitrator once reference is made. On the contrary if award is not submitted as contemplated A by the provision of section 28 of the Arbitration Act within period specified from time to time and ultimately time is not extended. Court can legitimately commence ordinary proceedings on merits un-effected from the existence of any arbitration agreement. Thus on the refusal to extend time the arbitrator obviously becomes functus officio, on account of which all subsequent actions taken or recommendation made in the matter cease to have legal value. Accordingly objection about jurisdiction raised by petitioners' counsel, is not well conceived. In this behalf I am supported by observation in following cases:

(i) N.P. Chokkapa Malliar v S.M. Ahmadullah Sahib (Volume XI Indian Cases 1913 (558) "What we have to consider is, in this case, has there been, in effect, an order superseding the arbitration. No application was made to the learned Judge to extend the time within which the award had to be submitted. No formal objection was taken, so far as we can gather, to the learned Judge's proceeding with the suit on the ground that the arbitration proceedings. were still subsisting. I think we must take it that although no order was made in so many words superseding the arbitration, inasmuch as the learned Judge made no order extending the time and did proceed with the suit, in the circumstance I think we must take it that there was, in effect, an order superseding the arbitration, and that the arbitration was superseded by the learned Judge's proceedings with the suit. " (ii) Gopal Lai Mandal v. Suresh Chandra Mukerji (S.C. 12 C.L.J. 624 Calcutta High Court) (Volume III Indian Cases 1910‑Page 1107) "As already stated the 23rd November was fixed for the submission of the award of the arbitrators. As the award was not submitted on that day, the reference fell through, and the Subordinate Judge could properly hold that the order of reference to arbitrators should be set aside. But the obvious course to follow after this, was to fix a date for the hearing of the suit, so as to enable the parties to appear and adduce evidence in support of their respective cases. Without following this course, the Subordinate Judge proceeded to dismiss the suit for default. This order cannot be supported on any conceivable ground. The Rule is, therefore, made absolute and the order of the Court below set aside. The Subordinate Judge will fix a date for the hearing of the suit, so as to give the parties opportunity to adduce evidence in support of their allegation and will then proceed to decide the case on the merits." Generally main object of referring the matter for arbitration is to obtain speedy disposal of the dispute by avoiding technicalities and intricacies of procedure. But if it is known that the matter is being unreasonably delayed or the arbitrator is causing inexcusable delay in such circumstances the Court undoubtedly has jurisdiction to revoke, the reference or authority of nominating arbitrator. For the reasons and circumstances discussed above I am satisfied that on account of unexplained inordinate delay on the part of B Arbitrator in submitting the award, trial Court had inherent jurisdiction to supersede the same and proceed with the matter and authority in this behalf has rightly been exercised. Besides parties also did not raise any objection when arbitration proceedings were bypassed. Evidently petitioner himself submitted list of two additional witnesses who were duly examined by the trial Court, therefore, he is also estopped by his conduct to challenge action taken by the Court merely because decision has gone against him on merits. The proceedings drawn and concluded by the trial Court are deemed to be proper, legally justified, and with jurisdiction. Now reverting to merits of the claim it may be seen that PWs Naik Muhammad and Mehrab deposed about making of Talab‑e‑Mawasabit. There are glaring lacuna and contradictions in the statements of said witness. Evidence does not reflect that intention was immediately expressed. Whereas P. Ws Mirzahan, Khair Muhammad and Taj Muhammad generally state that they accompanied plaintiff who made a demand of the land from respondent. Similarly P.W. Khan Muhammad and Dost Muhammad merely mentioned about petitioner's approaching respondent for asserting right of pre‑emption over the land. Bare perusal of the evidence on record clearly indicate that Talab‑e‑Ishhad has not been made properly. Procedure and manner in which two talabs are required to be made for validly asserting right of pre‑emption are given in para 236 of Principles of Muhammadan Law by D.F. Mulls. Same is however reproduced for ready reference: "

236. Demands for re‑emption.‑‑ No person is entitled to the right of pre‑emption unless (1) he has declared his intention to assert the right immediately on receiving information of the sale. This formality is called Talab‑i‑Mowasibat (literally, demand of jumping, that is, immediate demand); and unless (2) he has with‑least practicable delay affirmed the intention referring expressly to the fact that the Talab‑i‑Mowasibat had already been made (a) and has made a formal demand‑-- (a) either in the presence of the buyer, or the seller, or on the premises which are the subject of sale (b), and (b) in the presence at least of two witnesses (c) This formality is called Talab‑i‑Ishhad (demand for with invocation of witnesses) (d) It is quite evident that unless 'Talabs' are made in the prescribed manner, right of pre‑emption cannot be legitimately claimed. Minute examination of evidence discloses that Talab‑i‑Ishhad was also not properly made. Further more admittedly none of the witnesses while deposing about making of Talab‑i‑Ishhad have even obliquely referred to Talab‑i‑Mowasibat having been made earlier. Thus petitioner D has failed to prove making of Talab‑i‑Ishhad in the prescribed manner, in spite of the fact that opportunity for producing evidence was repeatedly provided. In view of glaring defects in making 'Talabs', the suit filed by petitioner is not maintainable. On this aspect I am also supported by the observation in case (i) Muhammad Lokman Mondal v. Amir Ali Mondal and others P L D 1969 Dacca 64 and (ii) Jadal v. Abdul Majeed and others P L D 1978 Karachi

732. It may be seen that both the Courts below have properly discussed and evaluated evidence adduced by the parties. There is apparently no error or defect in the appreciation of material available on record. In fact on independent appraisement of all the factors I have also arrived at the same conclusion, which are contained in the impugned judgments. Since petitioner has failed to make 'requisite Talabs', therefore he is obviously not entitled to assert his right of E pre‑emption. Besides as discussed above basis for the claim as well have not been satisfactorily proved. There is concurrent finding of fact arrived at by the two courts below. It is now well‑settled principle that scope of interference in such like circumstance is highly limited. On this legal aspect there is plethora of case law. However some of the recent judgments are relied: ‑-- (i) Rab Nawaz v. Mst. Mehr Sawai and others 1987 SCMR 785‑ (ii) Muhammad Arshad v. Muhammad Ismail and others 1987 SCMR 115. (iii) Muhammad Bakhsh and another v. Qadir Bakhsh and others 1986 S C M R 412. (iv) Sardar Ally v. Abdul Ghani and others P L D 1987 Karachi 58. (v) Talib Hussain v . Babu Muhammad Shafi and others P L D 1987 Lah. 4. (vi) Sawan and others v . Majeedullah 1987 C L C 815. (vii) Haq Nawaz v. Dildar alias Dada and others 1987 C L C 1021. For the foregoing reasons, 1 do not find any substance in the F revision. Same is accordingly ordered to be dismissed. Parties however) are left to bear their own costs. A . A . / 285/ Q Revision dismissed.