2013 PLP 1490 (MLD)

ABDUS SATTAR ASGHAR J.

This civil revision under section 115 of the Code of Civil Procedure 1908 is lodged against the order dated 2-3-2011 passed by learned Additional District Judge Jhang whereby respondent's application for cancellation of appointment of referee was accepted and order of appointment of referee was set aside.

2. It is argued by learned counsel for the petitioner that impugned order is against law and facts, based on misreading and non-reading of evidence and material available on the record; that appointment of referee once consented by the parties cannot be annulled; that the impugned order being violative to law and facts is liable to set aside.

3. On the other hand it is resisted by learned counsel for the respondent with the contentions that parties' agreement before the Court to decide the case on the statement of third person was retracted by the respondent expressing his lack of confidence on the referee before recording his statement in the Court; that the learned trial Court has rightly cancelled the appointment of referee through the impugned order in accordance with the law and facts.

4. Arguments heard. Record perused.

5. There is no cavil to the proposition that parties to a lis can enter into an agreement that suit may be decided in accordance with the statement to be made by third person as to matter in dispute in between them. In this case Muhammad Kabir respondent had lodged a suit against Rabnawaz petitioner under Order XXXVII of the Code of Civil Procedure, 1908 for recovery of Rs.5,00,000 on the basis of promissory note dated 27-3-2008. The said suit was contested by petitioner by filing written statement. Issues were framed by learned trial Court as arising out of divergent pleadings of the parties. On 15-12-2010, the suit was at the stage of evidence when parties made a joint statement for appointment of Muhammad Anwar Cheema as referee. Record reveals that on 9-2-2011 respondent lodged an application before the learned trial Court expressing his lack of confidence on the referee. On 11-2-2011 referee made his statement before the Court against the respondent/ plaintiff. On the same day learned trial Court required the petitioner to file the written reply to the application lodged by respondent on 9-2-2011 seeking cancellation of appointment of referee. Later on petitioner lodged his written reply to the said application and thereafter learned trial court granting opportunity of hearing to the parties allowed the application vide order dated 2-3-2011.

6. It is vehemently argued by learned counsel for the petitioner that appointment of referee once consented by the parties cannot be retracted and that consequent upon the statement of referee before the court such appointment cannot be recalled. It is resisted by learned counsel for the petitioner while relying upon the dictum laid down by the Hon'ble apex Court in the case titled Muhammad Akbar and another v. Muhammad Aslam and another (PLD 1970 Supreme Court 241). Careful perusal transpires that facts of the cited case are identical to the facts of this case. In the cited case it is observed by Hon'ble apex Court that a statement between the parties to the suit for decision of the same on the statement of a third person neither falls within the ambit of Order XXIII Rule 3 of the Code of Civil Procedure 1908 nor in the provisions of the Arbitration Act, 1940. Such a statement between the parties being a mere agreement, therefore, could be retracted by any of the party on the ground of lack of confidence upon the referee. The Hon'ble apex Court in the cited case has further held that in such circumstances learned trial Court had no jurisdiction to record the statement of the referee. The matter therefore was remanded to the learned trial Court to dispose of the suit on merits.

7. In this case it is evident on the record that respondent had lodged the application for cancellation of appointment of referee on the ground of lack of confidence on 9-2-2011 therefore recording of statement of referee by the learned trial Court on 11-2-2011, was without jurisdiction and of no legal effect qua the rights of the respondent. The learned trial Court was not obliged to decide the suit in the light of the statement of referee recorded after the application earlier lodged by the respondent showing his lack of interest on the said referee. The learned trial Court therefore has rightly granted the application of the respondent for cancellation of appointment of referee through the impugned order. It does not suffer from any legal infirmity or jurisdictional error.

8. For the above reasons, petitioner has no case to invoke the revisional jurisdiction of this Court. This revision petition having no merit is dismissed. AG/R-2/L Petition dismissed.