1992 PLP 771 (CLC)

(i) All the parties interested must agree to submit their differences to arbitration. (ii) The agreement should relate to some matter in difference between them in the suit. (iii) The agreement should be to refer the dispute to arbitration. (iv) The application should be made in writing. (v) The application should be made to the Court. (vi) The application should be made before judgment is pronounced.

9. From the above analysis of this section, it is abundantly clear that the reference can be made under this section only when all the interested parties have consented to it. The Court can make reference only with the concurrence of the parties. Seen from this angle, it is quite clear that the application for making a reference to Arbitrator by the respondent‑plaintiff was opposed by the appellant in tooth and nail. It is, thus, abundantly clear, that the original Court passed the impugned order without the consent of the appellant defendant. I have therefore, no doubt in my mind that the impugned order passed by the learned Civil Judge was wholly without jurisdiction and so cannot' be sustained.

10. Having determined the validity of the order, I now take up the question of maintainability of this first appeal. The argument of the learned counsel for the appellant that this order was passed under section 21 of the Act and was, therefore, not appealable under section 39 of the Act seems to be correct. But this is not all. This Court under section 115 of the C.P.C. has, undoubtedly, wide power to correct the errors committed by the subordinate Courts in order to do the justice between the parties. The revisional power of this Court is governed by section 115 of the Code of Civil Procedure. This power can be exercised on the complaint, of aggrieved party or suo motu. Section 115 of the C.P.C. came into consideration before the Full Bench in S. Zafar Ahmad v. Abdul Khaliq PLD 1964 Kar.

149. The position with reference to section 115 ibid was summed up by the Full Bench in following words:‑ The position with reference to section 115 may thus be summarised in the following proposition:‑ (i) The High Court may, in respect of any state of facts judicially considered, on which a Court subordinate to High Court has given a decision, make such order as it thinks fit, if in the opinion of the High Court, such Court in giving the decision. (a) has exercised or assumed a jurisdiction not vested in it by law, or (b) has failed to exercise or declined to assume a jurisdiction vested in it by law, or (c) while exercising its jurisdiction has taken a procedural step which is contrary to a mandatory provision of the law, or has omitted to take a procedural step which is required by a mandatory provision of the law to be taken, or (d) while exercising its jurisdiction has taken a procedural step which is contrary to a directory provision of the law, or to a general principle of law, and which in the final result has given to one, Par an advantage over the other which it would not have got but for the fact that step was taken. (ii) The High Court cannot exercise this power if that same matter could have been brought before it by way of appeal. (iii) When a complaint is made to the High Court that a Court subordinate to it has acted in any of the four ways mentioned in the first proposition and the High Court is of the opinion that the Court appears to have acted as complained, it may send for the record relevant for the purpose of ascertaining whether the complaint is correct or not, but it is not bound to send for the record, if it can satisfactorily ascertain by other means the facts necessary for a decision of the point raised. It seems appropriate to take this opportunity to state clearly a few guiding rules of practice which are liable to be overlooked when dealing with particular cases:‑ (a) "Interruption of pending proceedings should be avoided as far as possible. If it is found necessary to stay proceedings, the case should be disposed of as a whole, instead of firs ring a full dress debate on the question of stay only. (b) Since the power conferred by section 115, Civil Procedure Code, is meant for correcting errors made by subordinate Courts in relation to the existence or the exercise of their jurisdiction no occasion arises to exercise it in relation to a matter which is within the discretion or authority of the subordinate Court concerned. This power should, therefore, never be exercised so as to usurp the discretion or authority of a subordinate Court." There is abundant authority in support of proposition that this Court had a suo motu power under section 115 of the C.P.C. Reference be made to Percy Wood v. Mrs. Samuel AIR (3) 1943 Nag.

333. Sh. Inayat Ullah Butt v. Cantonment Board, Rawalpindi and another PLD 1957 (W.P.) Lah. 583, Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97 and Choudhury Muhammad Anwar v. Sahibzada Mir Ghulam Hussain Khan of Ta1pur and another PLD 1969 Kar. 17.

11. This question came up for consideration in Manager, Jammu &, Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC

678. In this case it was held:‑ "It is thus abundantly clear that no serious objection could be taken to the competence of a revision under section 115 of the Code of Civil Procedure in the rather peculiar circumstances of the case, notwithstanding the fact that as a matter of abundant caution and apparently in compliance with the direction contained in the impugned order of the High Court a fresh application for the re‑admission of the appeal was jointly filed by the Central Government and the Manager and stated to be still pending before the District Judge. It would be indeed difficult for the appellant to plead before that Court that its order was without jurisdiction having been passed in a perfunctory manner without consciousness of the fact that service had not been effected on the respondent or even that of its own discretion not to dismiss the appeal in default. By no means, therefore, a remedy under Order XLI, rule 19 maybe deemed to be an effective remedy, wherein normally the principal ground for restoration of appeal would be to satisfy the Court that the appellant had sufficient cause for non appearance which could be reasonably explained away to the satisfaction of the Court. The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as; Firstly, its discretionary jurisdiction may be invoked by the Court suo motu and secondly, the Court "may make such order in the case as it thinks fit".

12. Applying these principles to the facts and circumstances of the case. I am of a considered view that it is a fit case where the suo motu revisional power of this Court be exercised. From the resume of the case, it is quite clear that the respondent‑plaintiff had instituted the suit, that the suit was resisted that the appellants had filed written statement; that necessary issues were framed and the case was at the stage of recording of evidence of the parties when application for submission of dispute to arbitration was given; that earlier application to this effect was rejected by the learned trial Court. From these conclusions it is clear, that the impugned order was passed by the learned first Court without any lawful authority. As such the order was wholly devoid of legal sanction.

13. Taking into account these circumstances and in exercise of my suo motu revisional power, I set aside the impugned order. The learned trial Court is directed to proceed forthwith and decide the case in accordance with law. There shall be no order as to costs. K.B.A./'W‑12/L Appeal accepted