P L D 1955 Sind 282 (PLP)

INAMULLAH, J.-This is an application under Order VII, rule 11, C. P. C., with a prayer to reject the plaint on the ground that the suit is not maintainable. The present applica tion arises under the following circumstances. I would for the purposes of the present application confine myself only to what is stated by the plaintiff in his plaint which was filed on December 23, 1954. It is stated by the plaintiff that he and the defendants 1 and 2 were carrying on business in partnership under the name anal style of "Z. H. Ansari and Co." The partnership concern had its offices at Karachi, Lahore, Dacca and Chittagong. The de fendants 1 and 2 are brothers while the plaintiff is the brother- in-law of defendant

1. The plaintiff is also married to the sister of the two defendants. Some dispute arose between the parties with the result that the parties decided to terminate the partnership and referred the dispute to the arbitration of Maulana Ehteshamul Haq as sole arbitrator. It is stated by the plaintiff that an award was given on. 10th May, 1953 giving the plaintiff all the assets of the concern situated at Lahore. The plaintiff made an application under section 14 of the Arbitration Act before the Civil Judge. Lahore, for filing of the award. It is however, stated by the plaintiff that the arbitrator gave another award on June 1, 1953. The plaintiff had challenged both the awards. The defendants, it is stated in 'the plaint, in spite of the award, failed to divide the assets of the firm and went ahead with the business of the firm. The defendants are making use of the licences granted to the firm "Z. H. Ansari and Co." without giving any share to the plaintiff. The suit has been filed for a declaration that the partnership between the plaintiff and the defendants stands dissolved and for accounts of the partnership assets. For the decision of an application under Order VII, rule 11, C. P. C., the facts stated in the plaint have to be taken in manner and form to be correct. The simple question before me is whether on the statement of facts, as disclosed in the plaint, the suit is barred by any provision of law or is not maintainable. I have no doubt in my mind that the parties admittedly having referred the matter to the arbitration of the sole arbitrator Maulana Ehteshamul Haq and the award having been given, the present suit is not maintainable, more so as the proceeding under section 14 of the Arbitration Act had been started at Lahore. It is now well settled that once the dispute between the parties relating to any matter has been referred to arbitration, the only remedy open to the party is under the Arbitra tion Act and not through any suit. This principle is embodied in section 32 of the Arbitration Act of 1940, which reads as under :- "Notwithstanding any law for the time being in force no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be amended, modified or in any way affected otherwise then as provided in this Act." The words "or in any way affected otherwise than as provided in this Act" are very important. The object of the present suit is very obvious. The object of the present suit is to avoid the award by the present proceeding. On a clear reading of section 32 of the Arbitration Act of. 1940, it cannot be argued or contended that the effect of the present suit is not to circumvent the provisions of the Arbitration Act and to avoid the award that has been made. The only remedy that is open to the plaintiff is to pursue his remedy which he has already started in the Lahore Court. Once an award has been made, the disputes between the parties relating to the subject matter of the reference are merged in the award and no suit can lie which can have the effect of avoiding the award except under the provisions of the Arbitration Act of 1940. In the case of Lutufallah Khudabakhsh Khan and others v. Muhammad Siddiq Sobho Bhati and others (A I R 1946 Sind 117) it was held that: "A valid award operates to merge and extinguish all claims embraced in the submission, and after it has been made, the submission and award furnish the only basis by which the rights of the parties can be determined and constitute a bar to any action on the original demand." In that case a suit was brought by the plaintiff for specific performance of a contract regarding the sale of some immov able property and in the alternative for the return of the earnest money. This dispute had already been the subject matter, of the arbitration and award. A Division. Bench of this Court, in view of this fact, held that the suit was barred. A similar view was taken by the Privy Council in the case of Muhammad Nawaz Khan and another v. Alam Khan (I L R XVIII Cal. 414). It is not necessary for me to refer to the authorities cited by Mr. Nur-ul-Arfin, the learned advocate for the defendants, in. support of the contention that the only remedy open to the plaintiff after having referred the dispute relating to the partnership to arbitration, was under the provisions of the Arbitration Act of 1940 and not by a separate suit. The present suit, moreover, cannot be treated to be a proceeding under section 33 of the Arbitration Act in view of section 31 of the Arbitration Act 1940. It was open to the plaintiff in view of the award which related to concerns situated at Lahore as well as at Karachi, to have instituted his proceed ings under section 14 of the Arbitration Act before this Court. The plaintiff having already chosen his forum cannot be allowed to revise the same in view of section 31 of the Arbitration Act. Sub-clauses 2 and 4 of section 31 are very clear on the point. The plaintiff was bound to proceed, if he wanted to challenge by way of any proceeding provided under section 33 of the Arbitration Act 1940, before the Lahore Court alone. The present suit cannot be treated to be an application under section 33 of the Arbitration Act as this Court, in view of section 31, would have no jurisdiction. On the facts disclosed in the plaint, therefore, it is clear that the dispute relating to the partnership concern known as "Z. H. Ansari and Co." was referred to the sole arbitra tor Maulana Ehteshamul Haq and the award having been given and the proceeding having started by the plaintiff under section 14 Arbitration Act, the present suit is not maintain able. I would, therefore, reject the plaint and withdraw the order passed by me on 3rd January, 1955. The Nazir is discharged from the receivership I am informed by Mr. Nur ul-Arfin that the Nazir has already been paid his due, I would make no order as to costs. A. H. Plaint rejected