2001 PLP 1083 (MLD)

(b)??????? To direct the defendant to pay Rs.850 per month as fifty paisa share to the plaintiff from the month of May, 1989, to September, 1989, and onwards regularly from the total income of ks.1,700 per month coming from the six shops on the ground floor of the suit property. (c)??????? To grant permanent injunction restraining the defendant from threatening or disturbing the peaceful possession of the plaintiffs in the suit property or from discontinuing the amenities and services of the plaintiffs existing in the suit property or from withholding or stopping the payment of fifty paisa share from May, 1989, and onwards from the monthly income of the said six shops in the ground floor in any manner whatsoever. (d)??????? To grant any other relief, which this Honourable Court may deem, fit under the circumstances and nature of the case. (e)??????? To award cost of the suit." It is further averred that the applicant filed his written statement in the above suit whereby he denied the claim of respondents. During the pendency of the suit, Mr. Muhammad Shariful Islam Fakhree, Advocate was appointed arbitrator to decide the matter in dispute. The arbitrator filed his award, which was made the rule of Court. The applicant assailed the judgment and decree of the trial Court by way of appeal before the learned District Judge, Sukkur, which was also dismissed. Being aggrieved by the concurrent findings of both the Courts below, the applicant has preferred present revision application under section 115, C.P.C. I have heard Mr. Abdul Naeem learned counsel on behalf of the applicant. He has relied upon the following case‑law.‑‑ (1) PLD 1965 Dacca 258 (D.B)., (2) PLD 1965 SC 690, (3) PLD 1970 Karachi 357 (D.B.), (4) PLD 1971 Azad J&K 127 (D.B.)., (5) 1979 CLC 283, (6) 1986 SCMR 962, (7) 19$6 CLC 281 (D.B.), (8) 1986 CLC 2362, (9) PLD 1987 Quetta 33 (D.B)., (10) 1990 MLD 261, (11) 1991 SCMR 425 and (12) PLD 1991 Karachi

200. I have also heard Mr. David Lawrence, learned counsel on behalf of the respondents. He has placed reliance on the following case‑law:‑‑ (1) PLD 1978 Lahore 829, (2) PLD 1984 Peshawar 285, (3) 1985 SCMR 1215, (4) 1987 CLC 651, (5) 1989 CLC 1030, (6) PLD 1990 Krachi 216, (7) PLD 1990 SC 800, (8) PLD 2000 Lahore 154 and (9)2000 CLC

567. I have also perused the material placed on record as well as record and proceedings of the trial Court and the Appellate Court. The perusal of record shows that during the pendency of the proceedings before the trial Court. Mr. Muhammad Shariful Islam Fakhree, I learned counsel was appointed by the trial Court as arbitrator in the matter at the point request of the parties i.e. awlicant as well as respondents, thus, contention of the applicant that Mr. Fakhree was not competent to pass an award and Court illegally made it the rule of the Court, is misconceived. (Underlining is mine). It is well‑settled that one cannot approbate or reprobate. It will be pertinent to reproduce hereinbelow the relevant findings of the Appellate Court:‑‑ "

10. As regards the absence of notice of award on the part of the trial Court, it has been pointed out by learned counsel appearing for the respondents, that on the date of filing of the award his previous counsel as well as Mr. Muhammad Sharif Buriro were in attendance before the Court and they knew the factum of filing of the award. Notwithstanding the absence of issuance of a notice, these Advocates who represented the appellant were in the knowledge of filing of the award and one of them namely Mr. Buriro had been seeking adjournments from time to time with the result that ultimately, he filed objections on 19‑5‑1990, i.e. after a lapse of one month and nineteen days and application under section 30 of the Arbitration Act on 27‑5‑1990 i.e. after a lapse of one month and twenty seven days, Article 158 of the Limitation Act provides a period of thirty days for an application to set aside the award from the date of filing of the award." "

14. On merits as well the appellant has failed to establish by any cogent evidence that the Arbitrator misconducted the proceedings or that the award was improperly procured. In fact that Arbitrator who was the sole nominee of both the parties had taken pains to visit the property in suit and held discussion with the parties as well as the elders of their families and come to a just and right conclusion by settling the dispute once for all. He is senior member of the Bar enjoying integrity and reputation of being fair and honest. No exception, therefore, can be taken to the procedure adopted by him resulting into a decree of the Court which is otherwise just, legal and proper." The perusal of the impugned judgments and decrees shows that the same are well‑reasoned and do not suffer from any illegality or material irregularity. The rights of the parties cannot be defeated merely upon technicalities. The revisional jurisdiction can be invoked only when the impugned order passed by the Court is without jurisdiction or the Court failed to exercise the jurisdiction vested in it or acted illegally or with material irregularity in the exercise of its jurisdiction. There are concurrent findings of the two Courts below which cannot be ordinarily disturbed in revisional jurisdiction until and unless it is proved that the order is illegal, suffers from material illegality or in excess/without jurisdiction. The citations, relied upon by the learned counsel for the applicant, are distinguishable from the facts and circumstances of the present case: The impugned judgments and decrees do not suffer from any illegality or material irregularity, consequently, the revision application stands dismissed with no order as to costs. H.B.T./M‑144/K????????????????????????????????????????????????????????????????????????????????? Petition dismissed