1988 PLP 1709 (CLC)

Bilal A. Khawaja for Respondent. Date of hearing: 20th April, 1988. AJMAL MIAN, J.‑‑This appeal is directed against the order dated 8‑2‑1987 passed by a learned Single Judge of this Court in Suit No.565/83 dismissing the appellant's application under section 152, C.P.C. read with section 151, C.P.C.

2. The brief facts leading to the filing of the above appeal are that the respondent had taken some construction work from the appellant. It seems that there were certain disputes which were referred to the sole Arbitrator, Mr. Justice (Retd.) Abdul Hafeez Memon, who gave his award on 25‑6‑1983. To the above award certain objections were filed, which were declined and the award was made rule of the Court on 18‑4‑1984. After that the appellant filed the aforesaid application in September 1984 which was declined by the above order dated 8‑2‑1987. The appellant being aggrieved by the above order have filed the present appeal.

3. Mr. Bilal A. Khawaja, learned counsel for the respondent, has urged that the above appeal is not competent as no appeal is provided against the refusal to amend the decree under section 152 or 151, C.P.C. In support of his above submission he has relied upon the case of Messrs Gangat Rai Hiralal and another v. Agarwal Chamber and Commerce Limited in which the Indian Supreme Court has held that no appeal is provided under the Civil Procedure Cod, from an order amending or refusing to amend a judgment, decree or order though an appeal would lie from the amended decree or order and that there is no warrant for the view that the amendment petition is in continuation of the suit or proceeding therein and that it is the nature of an independent proceeding though connected with in order of which amendment is sought. On the other hand, Messrs Afzal Nabi and Kamal Mansoor Alam have urged that the present appeal is not under C.P.C. but under section 3 of the Law Reform Ordinance, 1972 (hereinafter called the Ordinance) which, inter alia provides that the appeal shall lie to a Bench of two or more Judge of a High Court from a decree passed or final order made by a learned Single Judge of that Court in the exercise of its original jurisdiction. It has, therefore, been contended by them that since the order under appeal has been passed by a learned Single Judge of this Court in exercise of original jurisdiction and as the order is a final order, the above appeal is competent. They have also referred to the case of Ghulam Hussain and another v. Ghulam Mustafa and others reported in P L D 1967 Lah. 439, in which a Division Bench of the erstwhile High Court of West Pakistan at Lahore High Court while construing clause 10 of Letters Patent under Order 43, Rule 1 of the C.P.C. held that an appeal is not maintainable under Order 43, Rule 3, C.P.C. without a certificate under clause 10 of the Letters Patent and that the said rule cannot override the provisions of the Letters Patent and does not control or regulate Letters Patent Appeals. On the analogy of the above reasoning, it has been submitted by Messrs Afzal Nabi and Kamal Mansoor Alam that section 3 of the Ordinance is neither controlled nor is regulated by the provisions of the C.P.C. In our view, since the order under appeal is a final order and as it has been passed by a learned Single Judge in exercise of original jurisdiction, the appeal is competent under section 3 (1) of the Ordinance.

4. As regards the merits of the above appeal it has been pointed out by the learned counsel for the parties that the total gross amount of the work done arrived by the Arbitrator, namely, Rs.58,37,274 against the final bill claimed by the respondent amounting to Rs.62, 26, 287.02 is inclusive of the retention money as is reflected in the final bill (at page 6 of the final bill) which is a part of the record and, therefore, the Arbitrator committed an arithmetical error by awarding the amount of retention money separately in addition to the above total figure arrived at by him, namely, Rs.58,37,

274. The reliance has been placed by the learned counsel for the appellant that such an arithmetical error can be corrected by the Court even after the award is made rule of the Court on the following cases: ‑ (i) Mohammad Mumtaz Ali Khan v. Syed Mohammad Saadat Ali Khan AIR 1932 Oudh 293. (ii) Khudu Mahto v. Bhim Mahto and others AIR 1950 Pat. 183 (iii) Bela Debi v. Bon Behary Roy and others AIR 1952 Cal.

86. The above cases, particularly the oudh case lend support to the submission of the learned counsel for the appellant. Mr Bilal A. Khawaja, on the other hand, has submitted that the appellant should have raised this point in their objections and should have contested the same before the learned Single Judge before the award was made rule of the Court. He has further submitted that in any case the above point cannot be resolved without having the full record of the arbitration proceedings and without referring to the other documents in addition to the final bill. In our view, it' will be just and proper to remand the case to the learned single Judge who will rehear the above application and the parties shall be entitled to refer to the arbitration record. We accordingly dispose of the above appeal in the above terms with no order as to costs. A.A./P‑65/K Case remanded.