2007 PLP 2459 (YLR)

SH. AZMAT SAEED, J.

This order shall dispose of Civil Revisions 815 and 816 of 2005 filed by petitioner Mst. Ghulam Fatima to call in question the validity of judgment dated 14-2-2005 whereby the learned Additional District Judge Sargodha by setting aside the judgment and decree of the civil Court dated 20-12-2000, decreed the suit in favour of plaintiffs/respondents and dismissed petitioner's application moved in terms of section 14/17 of the Arbitration Act for making award dated 29-8-1997 rule of the Court.

2. Brief facts leading to the filing of these petitions are that on 3-8-1992 respondents Nos.l and 2 filed suit for possession through partition in respect of the land in dispute against respondent No.3 and others. Respondent No.3 contested the suit and issues were framed on 19-5-1994. Subsequently, on 11-8-1998 Mst. Ghulam Fatima, hereinafter to be referred as the petitioner in both these cases, filed an application under sections 14/17 of the Arbitration Act 1940 praying that award dated 29-8-1997 pertaining to the property in dispute be made rule of the Court. Petitioner also sought to be impleaded as party in the civil suit and eventually was impleaded as defendant. Trial Court seized of the matter,. consolidated the two proceedings viz., suit for possession through partition filed by respondents Nos.1 and 2 and the application under the Arbitration Act ibid. Consoli?dated issues were framed and evidence thereon was led by the parties. Respondents Nos. l and 2 contested the application under the Arbitration Act inter alia by disputing the agreement for reference to arbitration, the arbitration proceedings as well as the validity of the award.

3. Trial Court seized of the matter, by means of a consolidated judgment dated 20-12-2000 accepted the application under the Arbitration Act filed by the petitioner and dismissed the suit for partition filed by respondents Nos.1 and

2. Being aggrieved thereof, respondents Nos.1 and 2 challenged the same in appeal and vide the impugned appellate judgment dated 14-2-2005, the appellate Court set aside the judgment and decree of the trial Court and consequently, petitioner's application under the Arbitration Act was dismissed while the suit for possession through partition of respondents Nos.1 and 2 was decreed.

4. In the above perspective, petitioner has filed Civil Revision 815 of 2005 to challenge the appellate decree for possession through partition and Civil Revision 816 of 2005 has been filed to challenge the acceptance of the appeal and dismissal of the application under the Arbitration Act.

5. Learned counsel for the parties have been heard and the record appended herewith perused. It is an admitted fact between the parties that proceedings in the suit filed by respondents Nos.l and 2 commenced with effect from 3-8-1992 and it is the case of the petitioner that during pendency of the aforesaid suit, the matter was allegedly referred to the arbitrators. It is not the case of the petitioner that permission of the Court was solicited for referring the matter to the arbitrators. Thus, in the instant case, allegedly the arbitration proceedings were conducted in respect of the subject-matter of a suit pending before the civil Court of competent jurisdiction without the consent or permission of the said Court or its intervention. Furthermore, the agreement for the grant of referring the matter to arbitration and proceedings thereupon are disputed by respondent Nos.1 and 2 who do not accept the award of its validity. It is also apparent from the record that petitioner was not a party to the alleged arbitration agreement, copy whereof is available on record as Exh.D.4 whose authenticity is disputed and the original was never proved in evidence.

6. In the above circumstances the appellate Court held the award to be invalid and ineffective in law. It is settled law that ordinarily any alleged arbitration or award in respect of subject-matter of a suit without the intervention or consent of the Court seized of the matter is ineffective as has been held by this Court in the cases reported as 2002 MLD 1175 Haji Anwar Ali and others v. Bashir Ahmed and PLD 1962 (WP)

95. This aspect pf the matter has not been seriously contested by the learned counsel for the petitioner. Thus no exception can be taken to the finding of the first Appellate Court that the award relied upon by the petitioner was of no legal effect hence could not be made rule of the Court.

7. Petitioner has been impleaded in the suit for possession through partition and had filed a written statement therein which has been examined. The sole basis for claiming right in the said property was the award dated 29-8-1997, which as has been held above, was invalid and ineffective in law. No other independent right in the suit property was claimed. In these circumstances in view of the invalidity of the award relied upon by the petitioner, she has no right, title or interest in the suit property or any legal connection therewith. Hence, the prayer of respondents Nos.1 and 2 in their suit for possession through partition could not have been declined at her behest.

8. Lastly, learned counsel for the petitioner has attempted to assail the maintainability of the suit filed by respondents Nos.l and 2 in view of the previous litigation filed by said respondents before the trial Court, where an issue of res judicata in this behalf was framed. Vide the impugned appellate order and the said issue was decided in favour of the said respondents. It appears from the recorded that initially respondents filed suit for injunction against one Muhammad Sher and others which was withdrawn as none of the parties were in possession of the property in dispute. Thereafter second suit was filed by respondents Nos.l and 2 against inter alia the present petitioner for possession wherein in the plaint was rejected by the trial Court seized of the matter on 30-6-1992.

9. In the above circumstances, there was no adjudication on merit. Rejection of the plaint does not amount to res judicata and does not preclude filing of the fresh suit after removal of legal defect culminating in rejection of the plaint.

10. The upshot of the above discussion is that the impugned appellate judgment is in consonance with law. There is no material irregularity in the exercise of jurisdiction warranting interference by this Court in the exercise of its revisional jurisdiction. Consequently, both these revisions filed by the petitioner being devoid of any merit stand dismissed accordingly. M. H. /G-41 /L??????????????????????????????????????????????????????????????????????????????????? Revision dismissed.