P L D 2001 Lahore 239 (PLP)

Ch. Muhammad Saleem v. Muhammad Akram and others PLD 1971 SC 516 ref. Bashir Ahmad Khan for Petitioner. Muhammad Khalid Khatak for Respondents. Date of hearing: 24th January, 2001. The circumstances in which this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arose are that there was a dispute between the petitioner and respondent No.1l which was referred to decision to Darbar Sial Sharif, District Sargodha which, however, did not give any decision but directed the parties to have their dispute settled from Maulana Muhammad Anwar Cheema as "Hukam Sharai". The parties had entered into an agreement in this behalf. It appears that Maulana Muhammad Anwar Cheema decided the matter in favour of respondent No.1l to the effect that he was entitled to receive Rs. 46,175 from the petitioner.

2. Respondent No.1l filed an application under sections 14 and 17 of the Arbitration Act for making the award rule of the Court. That application was contested by the petitioner inter alia on the ground that the award was fictitious and collusive. The trial Court framed three issues regarding the maintainability of the application of respondent No. I and vide its order dated 12-12-1989 carry to the conclusion that neither the "Tehkeemnama" placed on record was an arbitration agreement nor the decision given by Maulana Muhammad Anwar Cheema was an award.

3. Aggrieved by the decision of the trial Court respondent No.1l filed revision petition which was accepted by the Additional District Judge, Jhang on 8-3-1990. The learned Additional District Judge came to the conclusion that the agreement constituted an arbitration agreement between the parties and similarly the decision of Maulana Muhammad Anwar Cheema was an award.

4. I have heard the learned counsel for the parties and perused the record.

5. Section 2(a) of the Arbitration Act, 1940 defines an arbitration agreement to mean a written agreement to submit present or future differences to arbitration whether an arbitrat6r is named therein or not. The "Tehkeemnama" if read in the light of this definition clearly shows that it was an arbitration agreement within the meaning of the Arbitration'. Act, 1940. The main ingredients in this behalf are that the agreement should be for the purpose of having present or future differences determined. Neither in the Arbitration Act, 1940 nor in .the Civil Procedure Code, 1908 any format of the agreement for arbitration has been given. It is a settled law that in order to constitute an arbitration agreement the agreement need not be formal in nature. In this behalf reference may be made to Karachi Cooperative Housing Societies Union Limited v. Safa Bai and others (PLD 1970 Karachi 379) and Messrs Valika Textile Mills Limited v. Messrs Sh. Mian Mahomed Allah Bakhah (PLD 1963 Karachi 813). The Supreme Court of Pakistan has gone to the extent of holding that even the correspondence between the parties could constitute an agreement to refer the dispute to arbitration.

6. Coming now to the question as to whether "Hukarn Sharai" was an award within the meaning of arbitration or not, it is to be seen that while according to section 2(b) of Arbitration Act award means an arbitration award but no definition of arbitration award has been given in the Act. On it plain reading award would mean any decision of the arbitrator in respect to the matter referred to arbitration. As held in Ch. Muhammad Saleem v. Muhammad Akram and others (PLD 1971 SC 516) if a dispute is referred to a person and that person decides the dispute by holding an inquiry then undoubtedly whatever that person decides would constitute an award. Read in the light of the above dictum "Hukam Sharai" is clearly an arbitration award and should have been dealt with as such. In view of what has been stated above this petition fails and is dismissed leaving the parties to bear their own costs. Q.M.H./M.A.K./S-197/L Petition dismissed.