P L D 1994 Peshawar 228 (PLP)

4. A plain reading of the above finding, reveals that the learned Additional D1strict Judge has misconceived the legal position by holding that the order was not appealable. Before analysing this finding, it is pertinent to point out that the learned Court, probably, was not rendered proper ass1stance; because a perusal of the judgment demonstrates that section 39 of Arbitration Act was neither alluded to nor was discussed at all. In the first instance the impugned order dated 6‑1‑1993 was with regard to turning down the plea of applicability of section 34 of the Arbitration Act to the facts of the case in hand. Since the learned trial Court has finally decided, in categoric terms, the question of application of section 34 of the suit of the plaintiff/respondent, the order was subject to appeal under section 39 of the Arbitration Act. It must always be borne in mind that when proceedings are taken up under a special law, then that law shall be applied including provision for a right of appeal. Wherever the special law contains a provision for certain situation the corresponding provision of general law, if any, shall stand excluded. In this behalf it would be advantageous to reproduce, section 39 of the Arbitration Act in verbatim and I propose to do so as under:‑‑ APPEALS: "

39. Appealable orders.‑‑‑(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decree of the Court passing the order: An order‑‑ (i) superseding an arbitration; (ii) on an award stated in the form of a special case; (iii) modifying or correcting an award; (iv) filing or refusing to file an arbitration agreement; (v) staying or refusing to stay legal proceedings where there is an arbitration agreement; (vi) setting aside or refusing to set aside an award: Provided that the provisions of this section shall not apply to any order passed by a Small Cause. (2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court."

5. Obviously clause (v) owes its origin to section 34 of the Arbitration Act where a party to an arbitration agreement starts legal proceedings with respect to subject‑matter of such agreement, the other party has a right to get such proceeding stayed so as to enable arbitration to proceed in terms of the agreement. In order, however, to enable a party to obtain a stay order, certain conditions as prescribed in the said section must be complied with. Thus, the first and essential prerequisite to making an order to stay order under this section is that there is a binding arbitration agreement between the parties to the suit. And if the Court fails to stay the proceeding on application by the party, the order refusing to stay legal proceeding falls within the scope and purview of clause (v) of section 39 of the Arbitration Act and is amenable to appeal. To put it differently, this clause is complete in itself and is not in any wise affected by rules as to appeals laid down in the Civil Procedure Code. The appeal against order dated 6‑1‑1993 was, therefore, competent from the very outset. The exercise to convert the appeal, into revision was the sheer futility.

6. Similarly, the finding of the learned Additional D1strict Judge with regard to maintainability of appeal against the interim order on the ground that it was not a matter decided is also erroneous in law. Admittedly the learned trial Court had passed the impugned order in shape of injunction restraining the petitioner from recovering 25% of the amount collected as tax by the respondent/contractor. The relevant provision of Civil Procedure Code which governs and regulates the powers of trial Court vis‑a‑vis granting of injunctions is contained in Order XXXIX, Rules 1 and 2, C.P.C. In order to maintain the continuity I propose to reproduce rule 2 of Order XXCIX as under:‑‑ "

2. Injunction to restrain repetition or continuance of breach.‑‑(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of alike kind arising out of the same contract or relating to the same property or right. (2) The Court may by order grant such injunction, on such terms, as to the duration of the injunction, keeping an account, giving security or otherwise, as the Court thinks fit. (3) ..................... (4) ....................

7. It is needless to emphasize that each decree is appealable but each order is not subject to appeal. Only those orders can be appealed against which have been made appealable by section 104 read with Order 43, Rule 1, Civil Procedure Code. A perusal of Rule 1 indicates that sub‑rule (r) has made Rule 2 of Order 39 as appealable. I find it profitable to reproduce sub‑rule (r) and I do so as under:‑‑ (r) an order under rule 1, rule 2, rule 4 or rule 10 of Order XXXIX.

8. In the light of the aforesaid discussion I am driven to the unescapable conclusion that the verdict of learned Additional D1strict Judge to the effect that the appeal before him was not competent, is totally devoid of law, thus rendering the same as illegal. I, therefore, feel free to interfere by exercising revisional jurisdiction of this Court. And I do so by setting aside the impugned judgment and decree dated 27‑4‑1993 passed by learned Additional D1strict Judge and remit the case back to the Court of D1strict Judge, Haripur for rehearing this case as regular appeal as directed against order of Senior Civil Judge dated 6‑1‑1993. However, in view of the circumstances of the case, the parties are left to bear their own costs. Revision petition stands accepted. A.A./1570/P Case remanded.