1991 PLP 1313 (SCMR)

3. During the execution of the contract, the Contractor was permitted by the Engineer Incharge to bring bricks either from Quetta or from Jacobabad and it was the carriage cost of the bricks which became a matter of dispute between the parties. The Government by its letter dated 12th of July, 1973 asked the respondent to nominate any one of the three suggested persons as the Arbitrator in the matter. Ultimately, the matter was referred to the Superintending Engineer, who by a letter dated 30th of May, 1977 informed the Government as hereunder:‑‑ "The report of the Enquiry Officer is very comprehensive and clear on the subject. Under the provision of the Agreement and in view of the enquiry report, the claim of the contractor appears to be justified." The Government did not honour the finding of the Enquiry Officer or the recommendation of the Superintending Engineer, whereupon by an application dated 17‑11‑1979 the respondent approached the Senior Civil Judge for appointment of an Arbitrator as per agreement. In proceedings which were ex parte before the Senior Civil Judge, at first Mr. Saleem Durrani was appointed the Arbitrator and subsequently, Mr. Baz Khan Mangal. An award was given by him for a sum of Rs.9,22,229 apart from an interest of Rs.12,91,120 making in all, inclusive of other items, Rs.22,33,

249. The award was ex parte. Objections were filed to the Award but it was made the rule of the Court and a decree in terms was passed on 31‑7‑1983. It was appealed against and the High Court set it aside directing as hereunder:‑‑ "This case will go back to the Senior Civil Judge who will consider the points regarding jurisdiction and limitation after hearing the parties and if necessary after recording evidence. He will try the case afresh and before appointment of arbitrator consider the merits of the application moved by the respondent."

5. After remand the matter was referred finally to Mr. Muhammad Azeem Lehri (retired Superintending Engineer) who gave his Award on 2‑11‑1987 in the following terms:‑‑ (1) The justified claim of Mirza Abdul Hayee Government contractor stands at Rs.9,64,123 (Rupees nine lac, sixty‑four thousand, one hundred and twenty‑three only). (2) The claim of interest of the contractor seems justified from 30‑5‑1977 onwards and not for a period of 21 years. The decision regarding grant of interest money may be left to the Court of law. (3) Money claimed on account of devaluation by the contractor, could not .be given under the provision of Section 13 of the Ordinance No.XVII of 1972 (Promulgated by the Government of Pakistan)."

6. Objections were raised to the Award and they were rejected by the Senior Civil Judge and it was made the rule of the Court and a decree in terms followed.

7. The appeal filed against the judgment and decree of the Senior Civil Judge failed in the High Court and the Objections taken to it were noted and dealt with as hereunder:‑‑ "The learned counsel for the appellants has raised the following pleas:‑‑ (a) Application under section 8 of the Arbitration Act was not competent and the Court has no jurisdiction to appoint the arbitrator; (b) the appointment of arbitrator was not in consonance with the agreement between the parties; (c) the award was beyond the terms of reference; and (d) the award was not supported by any evidence. The above contentions have no force. As regards the first and second objections; suffice it to say that such objections were taken before the High Court and the same were rejected, therefore, it is too late to repeat the same objections. Even otherwise in the application moved under section 8 of the Arbitration Act, the respondent has categorically stated that the appellants were neglecting to appoint an arbitrator in accordance with terms of the agreement. He was, therefore, forced to make an application under section 8 of the Arbitration Act. No objection was taken by the appellants about the appointment of arbitrator by the Court. The appellants submitted to the jurisdiction of the arbitrator. The Court had no option but to appoint an arbitrator under section 8 of the Arbitration Act in view of the negative attitude of Appellants."

8. Mr. Basharatullah, Advocate, the learned counsel for the Appellants contended that there has been an obvious misreading in the impugned judgment of the High Court in so far as it was held that the question of jurisdiction and limitation had been dealt with and disposed of in the earlier judgment of the High Court by which the proceedings were remanded to the Senior Civil Judge. Actually, no determinative finding had been given by the High Court in that judgment on those issues. In fact those issues had to be gone into afresh by the Senior Civil Judge and had to be examined by the High Court. Additionally, it was stated that the application under section 8 of the Arbitration Act was clearly time‑barred because the work having been completed in 1965, the matter was brought to the Court in 1981. It was also contended that the Arbitrator had not given the reasons justifying the Award.

9. It is correct that there has been a slight misreading by the High Court in the impugned judgment in so far as it was observed that the earlier judgment of the High Court had disposed of the questions of jurisdiction and limitation. The operative parts of the remand order have been quoted and they clearly show that the matter was left open for decision afresh by the Senior Civil Judge. Nevertheless we have taken note of these two objections and find that they are not sustainable in. fact on the present state of record. The work was to be executed at Bhag. The contracting party was the Executive Engineer, Sibi Provincial Division, B & R and the cause of action had taken place at Bhag. However, the events leading to the filing of application under section 8 of the Arbitration Act clearly show that after the Report of the Superintendine Engineer of Sibi reproduced above, the claim of the respondent was pending with the Secretary‑cum‑Chief Engineer, Communications and Works Department at Quetta. This finding of the Superintending Engineer is dated 30th of May, 1977 on which the Provincial Government passed no orders of acceptance or rejection. This invested the Court at Quetta with jurisdiction in the matter as the Reference to Arbitration arose directly out of the finding given by the Superintending Engineer in the background of the Arbitration Clause existing between the parties.

10. As regards the question of limitation, we find that the contention is that the work was completed in 1965 and the Reference to Arbitration was sought in 1979. Neither evidence of completion of the work was filed nor of the final payment made to the contractor. On the contrary, the evidence produced showed that the matter remained under active. consideration of the functionaries of the Government and the justification was made out at more than one stages between 1965 and 1979 and there was no rejection of the claim as such to give an immediate cause of action to the respondent to go to Courts for relief. In this background the claim cannot be said to be time‑barred.

11. The other grounds taken for objecting to the Award are that reasons have not been recorded therein and that in fact the Government was not liable for the carriage cost of the bricks from Quetta or Jacobabad. The Award does contain the reason, and the contract between the Engineer Incharge and the contractor leaving an option with the contractor to bring the bricks from either Quetta or Jacobabad was fully established. The liability, therefore, followed as a matter of course.

12. We find no merit and leave to appeal is refused. A.A./P‑120/S Leave to appeal refused.