1986 PLP 1800 (MLD)

T‑his is an application under section 41 of the Arbitration Act and Order XXXIX, Rules 1 and 2, C .P. C . seeking interim order for restraining the plaintiff from selling, disposing of or in any other way dealing with aircrafts and other material of the defendant lying at Karachi Airport. This application has been filed in the proceeding under section 14 of the Arbitration Act where the Arbitrator has filed his Award in Court. Under an, agreement, dated 28‑4‑1970 the defendants were allowed accommodation on the first floor and the ground floor in the steel hanger at Karachi with effect from 24‑1 1970 at Rs.20 per 100 sq. ft., The store‑room measuring 442.45 sq ft. was allowed to be used by the defendants from 15‑1 1970 at the rate of Rs.88.40 per month. This was not disputed by the defendant. The defendant remained in possession upto 25‑11‑1976. The plaintiff claimed rent at the revised rate which was not denied by the defendants. The plaintiff also claimed parking, housing, landing: electricity, water and telephone charges. The defendants denied the claim regarding parking, landing and housing charges, and made counter‑claim for damages. The dispute was referred to sole‑Arbitrator, who made an interim Award, dated 28‑2‑1982. The learned Arbitrator noted, that although the defendants have closed their business they are occupying the premises, therefore, to avoid liability for payment of rent the possession of the premises be restored to the plaintiff. It was awarded as follows:‑ "The consensus during the hearing reached that so far as the claim of the arrears of the rent and the counter‑claim of damages are concerned that would not be affected if the premises are restored to the plaintiff. I am also convinced that in the interest of justice it would be proper that the plaintiff may hand over the possession of the premises. The Airport Manager, is, therefore, authorised to fix a date with a notice of at least a fortnight to Capt. Anwar to depute a representative and in whose presence the Airport Manager may take possession of the premises after making an inventory of fittings and furniture if any, Capt Anwar or his authorised representative would be free to remove those fittings and furniture, etc. However. if on the date so fixed and notice so duly served on Capt. Anwar, no dne turns up at date and time on behalf of Capt. A nwar, the Airport Manager, may in the presence of two independent witnesses open the premises and make out an inventory of fittings and furniture etc. therein which he may store at some safe place of his choice under intimation to Capt. Anwar, who may collect them on furnishing receipt thereof. As to the aircrafts lying in the airport premises and belonging to Capt. Anwar it is ordered that Capt. Anwar is authorised to remove them from the premises to any place of his choice in the presence of a representative of Airport Manager to whom at least a notice of 14 days be served before‑hand fixing the date and time for removing them and an inventory of the same will be made out and filed before the sole Arbitrator." On 22‑6‑1985 final Award was made by which Rs.1,12,658.48 was awarded to the plaintiff towards rent telephone, electricity and water charges. The plaintiffs claim for parking, landing and housing charges and defendants, counter‑claim were held to be outside the purview of the arbitration clause of the agreement and, therefore, the learned Arbitrator refused to adjudicate upon them. Pursuant to section 14 (2) of the Arbitration Act and at the request of the parties this Award has been filed by the learned Arbitrator in Court on 18‑7‑1985. The plaintiff issued a public notice in Daily Dawn, dated 14‑2‑1986 in which reference was made to the interim Award dated 28‑2‑1982 (wrongly printed as 21‑2‑1985) and it was notified that Capt. Anwar Khan, the defendant No.1, had taken no steps to remove the aircraft/ Scrap and not left his address, therefore, notice was being given through publication in the newspaper to remove the aircraft/scrap within 15 days failing which the same shall be disposed of. Mr. Muhammad Sharif, the learned counsel for the defendants, has contended, that so far the Award has not been made rule of the Court, therefore, the laintiff is not entitled to execute to or to recover any amount under it. Reference has been made to Wali Muhammad and others v. Mst. Pano and others A I R 1960 Pat. 128; Muhammad Yusuf Levai Saheb, v. S. Hajee Muhammad Hussain Rowther and others A I R 1964 Mad.

1. There can be no cavil with the proposition of law that the Award made by an Arbitrator can be executed only after it has been made rule of the Court. Prior to it no party is entitled to any right under the Award. Likewise, no party can be subjected to any liability under the Award unless it has been made rule of the Court. The learned counsel for the plaintiff has contended, that by the impugned notice the plaintiff has not made any claim under the Award. It is claiming parking charges which is out‑side the purview of the agreement and the Award. The plaintiff had made claim for parking charges but it was not allowed by the Arbitrator as it was not covered by the Arbitration clause of the agreement. The notice published in the Daily Dawn makes a reference to the interim Award of the sole Arbitrator but it has been stated by the plaintiff that the proposed section is not being taken on the strength of the Award. It has further been alleged that for the safety of the airport no material can be allowed to remain lying in that area. It seems that the defendants' aircrafts/scrap are lying in the premises of the plaintiff for the last 12 years in respect of which no charges seem to have been paid by the defendants. The dispute between the parties seems to be that due to illegal acts of the plaintiff, damage has been caused to the aircrafts which, according to the defendants, are no longer airworthy. The defendants seem to keep these aircrafts as evidence of their claim. This interest of the defendants can be safe guarded by appointing a surveyor, who should survey the aircrafts/ scrap. The defendants do not seem to be prepared to even get their properties surveyed properly by any competent surveyor. In these circumstances it is to be considered whether it would be just and proper to remove these aircrafts/scrap from the airport area. The plaintiff has stated, that for the cleanliness and security of the airport it is necessary that these sircrafts/scrap be removed. The defendants' have denied this allegation in a vague and general manner. The aircrafts/scrap are lying in the airport vicinity for the last 12 years. The defendant does not seem to have taken any step to protect them. The plaintiff terms it as scraps of aircrafts and defendants alleged that it has been rendered as a junk due to the illegal acts of the plaintiff: At this stage I. am not considering the rival claims of the parties, but prima facie it seems, that the goods lying in the airport area are not airworthy aircrafts. They are scraps or junk or unairworthy aircrafts. The safety, security and cleanliness of the airport area and its vicinity has to be ensured and maintained. The defendant aircrafts in whatever condition they were should not have normally remained dumped for the last 12 years. They can prove hazardous to the safety and security of the airport. It would, therefore, be proper and appropriate to appoint a surveyor for survey of the sir crafts /scrap. Mr. Saeed Bhombal is appointed as surveyor whose tentative fee of Rs.3,000 shall be deposited by the plaintiff within two weeks which shall be charged as costs in the suit. The Official Assignee will ask the surveyor to survey the aircrafts/scrap after due notice to the parties. If the defendants are not available or cannot be served by post, a copy of the notice shall be pasted at the outer door of the office or place of residence of the defendants and another copy shall be served on their advocates. The notices shall be served through the Official Assignee within two weeks. After the survey, the defendants should remove the aircraft's /scrap. If they fail to do so the Official Assignee shall arrange the removal to a place provided by the plaintiff. The cost of removal and storage shall be borne by plaintiff which shall be treated as cost in the suit. H.B.T. Order accordingly.