1982 PLP 2377 (CLC)

This judgment shall dispose of Revision Petitions Nos. 928 to 931 of 1974, as common questions of law and facts are involved therein. It shall, however, remain on the tile of Revision Petition No. 928 of 1974.

2. The facts in brief are that four pre‑emption suits are pending between the parties. Respondents Nos. 1 and 2 are the plaintiffs in all these cases and whereas petitioner Hashim Ali and others comprising different state of defendant, are arrayed as opposite parties. It appears that both the parties agreed to get their disputes decided through arbitration and executed agreement, appointing arbitrator. The defen dants‑petitioners moved an application before the learned trial Court, praying that since the parties had compromised outside the Court, to get their disputes decided through arbitration, and the compromise was evidenced by an agreement, the suit be filed without further proceedings in the matter. This application was opposed by the plaintiffs respondents who also denied the existence of compromise.

3. The learned Civil Judge was of the view that even if the petitioner's application was accepted, the reference for arbitration, having been made, in the pending suit, without leave of the Court, their request could not be sustained. He referred to Asmaten‑Nassa Bibi v. Anju (P L D 1967 Dacca 603) and through separate orders dismissed the applications in all the suits.

4. In appeal the petitioner raised the plea that the disputes were to be settled through mediation and not arbitration and that, therefore, a compromise was affected between the parties. The learned District Judge rejected this contention on twin grounds firstly, that this point was not urged in the memo of appeal and secondly, on perusal of the agreement he found it an arbitration agreement, All the four appeals were thus dismissed by him on 2nd November in 1974 in limine. The petitioners have now come to this Court on its revisional side.

5. The learned counsel for the petitioners argued that the person named in the agreement was to act as mediator and the learned District Judge erred in treating the documents in question as arbitration agreement. Alternatively, it was submitted that even if there was an arbitration agreement between the parties, the award made in a pending suit, without the intervention of the Court, could be considered as an agreement for compromise and a decree passed on the basis thereof. In support of this proposition, the learned counsel relied on V.S.A. Arumuga Mudaliar v. V.S.P. Balasubramania Mudaliar, and others (A I R .1945 Mad. 294). He also questioned the propriety of the rejection of the applications by the learned trial Court without recording evidence and the dismissal of the appeal in limine by the learned Additional District Judge. It was argued that the appeal involved substantial questions of law, and should not have been rejected in lirnine. In this connection reliance was placed on Messrs Abdul Majid & Company v. The Federation of Pakistan and others (P L D 1962 S C 69).

6. No one has entered appearance on behalf of the respondents, despite service. They have been, therefore, proceeded against ex pane.

7. I have examined the two documents annexed with the file o Revision Petition No. 828/1974. These documents when read as a whole convey the impression that the parties appointed an arbitrator who had to give an award. Upon the language of the documents, it is not possible to agree with the learned counsel that they intended to get their suits decided through mediation. The findings of the learned District Judge in this respect are upheld.

8. Admittedly the agreement in question was executed between the parties, in a pending suit without the permission of the Court. Such an agreement being violative of the provisions of sections 21 to 2 of the Arbitration Act, cannot be enforced through a Court of law. The proviso to section 47 of the Act, however, creates an exception to the award resting on an agreement, made without the intervention of the e Court and ordains that such an award can be taken into consideration, as a compromise or an adjustment of a suit, if all the parties there accord their consent. It is to be noticed that consent contemplated the proviso should be given after the award. Obviously, in view of the resistance posed by the respondents such a consent is out of question. I had the occasion to examine the ruling reported as AIR 1945 Mad. 29 in Mst. Hashmat Bibi v. Muhammad Rafi (1980 C L C 967) in some depth. It is of n avail to the petitioners.

9. The learned trial Court's failure to record evidence, on the petitioners' application, is not fatal to the validity of its orders. The view which was taken by' the learned trial Court, did not necessity conducting of detailed proceedings on the application. Similarly. dismissal of the appeal in limine does not suffer from any infirmity. The learned District Judge has given cogent reason in support of his decision. The rule laid down in Abdul Majid and Co. v. Federation of Pakistan, is that summary dismissal of appeal does not relieve the Court of the necessity of writing a judgment. It may be observed that in the instant case the judgment of the learned first Appellate Court conforms to the requirements of law. For all these reasons, I do not find any merit in these revision petitions, which are accordingly dismissed. As the respondents have not appeared, there shall be no order as to coats. M. Y. M. Petition dismissed.