2000 PLP 386 (YLR)

The learned counsel of Naseem Naqvi stated that there are three business concerns which are as follows: ‑‑‑ (i) Pakistan Progressive Associates. (Naseem Naqvi is the sole proprietor). (ii) Eurken Limited whose directors are Munir, Jamil and Naeem Naqi. (iii) M/s. Dynomic Limited whose directors are Zahid Rizvi etc. He further stated that arbitration agreement was executed between Naeem Naqi and Zameer Haider and the award was granted also against the concern of Naeem Naqi who is not party to the arbitration agreement, therefore, trial Court was not justified to dismiss the application under Order I, Rule 10, C.P.C., as the law laid down by this Court in PLD 1970 Lahore

840. He further stated that Naeem Naqi has independent entity but the learned Trial Court without applying its mind dismissed his application without assigning any reason. The learned counsel of the respondents stated that appellant filed application for setting aside ex parte order, dated 11‑3‑1987 on 1‑4‑1987. Para. 4 of the application reveals that the appellant knew the proceedings on 1‑4‑1987 and the objection was filed admittedly on 28‑9‑1987 after prescribed period of one month. The trial Court was justified to. Dismiss the same as time‑barred. He further stated that all the parties were duly presented before the Arbitrators as is evident form paras.2 and 3 of the award. He further stated that Naseem Naqi and Naseem Naqvi are real brothers and are living together; therefore, learned trial Court was justified to dismiss the application of Naeem Naqi. He further stated that all the parties participated before the arbitrators as is evident from paras.2 and 3 of the award, therefore, appellant and petitioner are estopped to raise any objection against the award on the well‑known principle of estoppel and waiver. He further stated that award has been implemented and accepted by the parties as is evident from the affidavit of Naeem Naqi, dated 15‑1‑1987, therefore, trot Court was justified to make award rule of the Court as the principle laid down by the Karachi High Court in PLD 1965 Karachi

326. He further stated that contents of arbitration agreement also reveal regarding the other property as is evident from para.2 of the arbitration agreement. The appeal of the appellant is highly time‑barred and the appellant and petitioner are educated persons, therefore, judgment cited by the learned counsel of the appellant is distinguished on facts and law as in the cited case the litigants are illiterate whereas as mentioned above the appellant and petitioner are educated persons. The learned counsel of the appellant in rebuttal stated that notice under section 14 of the Act was not received by the appellant. therefore, learned trial Court was not justified to reject the objections of the petitioners as time‑barred as the principle laid down by this Court in PLD 1993 Lahore

11. He further stated that it is the duty and obligation of the trial Court to peruse the contents of the award and then decide the matter as the principle laid down by the Hon'ble Supreme Court in 1995 SCMR

73. Learned counsel of Mr. Naseem Naqvi in rebuttal stated that Naseem Naqvi did‑not participate in the proceedings before the arbitrators, therefore, trial Court was not justified to dismiss the application of the petitioner. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. I would like to decide point of limitation whether the appeal or revision is filed within time or not. The brief facts to resolve this controversy between the parties i& reproduced hereunder in chronological order: Trial Court made the award rule of the Court vide judgment and decree, dated 23‑8‑1988. The appeal/revision filed before the District Judge on 28‑9‑1998. District Judge returned the appeal/revision to present before this Court on 18‑5‑1989. Appeal/revision filed before this Court on 23‑8‑1999 alongwith application under section 5 of the Limitation Act. It is admitted fact that appellant/petitioner has to file an appeal/revision before this Court as value of the subject‑matter of the award which was made rule of the Court by the trial Court exceeds the pecuniar jurisdiction of the Additional District Judge but the appellant/petitioner filed an appeal/revision before the Additional District Judge which was admitted for regular hearing and the same was returned to the appellant/petitioner on 18‑5‑1989. In the similar circumstances the Hon'ble Supreme Court condoned the delay in Sherin v: Fazal Muhammad (1995 SCMR 584) and observed as under: ‑‑ "We feel that omission on the part of learned District Judge to take timely action is the major cause of re‑filing of the appeal by the appellants in the High Court, out of time. They have been victims of the act, of the Court which furnishes (sufficient cause) under section 5 of the Limitation Act, for condonation of delay. The fact that after receiving the memorandum of appeal from this Court, sometime was consumed by the appellant, in presenting it to the High Court, in the circumstances of the case is inconsequential. We are, therefore, inclined to condone the delay in presenting the memorandum of appeal to the High Court." The abovementioned judgment of the Hon'ble Supreme Court has considered in Sayed Haji Abdul Waheed's case 1998 SCMR 2296 and the relevant observation is as follows:‑‑‑ "The learned counsel for the appellant contended that above view expressed in Sherin's case is in -conflict with the view expressed by this Court in Abdul Ghani's‑case and as the numbers of the Hon'ble Judges in both the cases were equal, the matter may be referred to a larger Bench to resolve the conflict. It is true that Sherian's case has not noticed the decision in Abdul Ghani's case. However, after examining ratio decidendi of both the cases which we have reproduced above, we are of the view that there is no conflict in the opinion expressed in the above two cases." The contention of the learned counsel of the respondents is not in accordance with the recent trend of the Hon'ble Supreme Court. The Hon'ble Supreme Court has laid down a principle after the addition of Article 2A of the Constitution that cases must be decided on merits instead of technicalities in Sher Muhammad's case PLD 1989 SC 532 and the relevant observation is as follows: ‑‑‑

2. A party should not be denied a relief on account of the technicalities in the procedural law, as the' same is formed for the purpose of regulating the legal proceedings, they are extended and designed to foster the cause of justice rather than to defeat it. Subsequently, the aforesaid judgment was also considered in Mst. Sardaran's case 1993 SCMR 363 and followed the same principle. It is settled proposition of law that Limitation Law should be liberally construed without giving violence to intention of Legislature. It must be applied for benefit of plaintiff. I am fortified by the reported jud4ment 1988 CLC

332. It is also settled proposition below that the Rules framed in the Code of Civil Procedure are rules made for the advancement of justice and they should not as far as possible be allowed to defeat the ends of justice. I am fortified by the judgment of Muhammad Sarwar's case 1980 CLC

946. The Hon'ble Supreme Court has laid down a principle in Khuda Yar's case PLD 1975 SC 678 that technicalities should not be hindrance in the way of justice. The relevant observation is as follows:‑‑‑ "The technicalities over the insurmountable hurdle should not be allowed to defeat the justice." I am also fortified by the ‑following judgments: 1996 MLD 2164 (Alim 'Din's case), 1999 MLD 2202 M/s. Adam jee Construction Company case), therefore. I am not inclined to dismiss the revision/appeal on the ground of limitation as the principle laid down by the Hon'ble Supreme Court in Muhammad Masi‑uz- Zaman's case PLD 1992 SC

825. I carefully examined the record, which was requisitioned in these proceedings and considered the contentions of learned counsel for the parties, it is pertinent to mention here that there is considerable force in the points raised in appeal/revision and that the objections raised by the learned counsel for the respondent, do not have any substance, by virtue of section 17 of the Arbitration Act which prescribes that if the Court sees no cause to remit the award or any of the matter referred to arbitration for reconsideration or set aside the award, it shall after the time, for making application to set aside the award, has expired or such application having been made after refusing it, proceed to pronouncing judgment according to the award, and upon the judgment as pronounced a decree shall follow against which no appeal would lie except on the ground that it was in excess of or not otherwise in accordance with the award meaning thereby section 17 of the Act caused duty on Court to see if there ‑was no cause to remit award or any of the matter referred to the arbitration for reconsideration or to set aside the award. The Court can exercise such powers suo motu apart from the application which a party could make for either remission of the award or for its reversion. If the award is nullity because all the invalidity of the arbitration agreement or for any other reason or it is prima facie illegal and not fit to be maintained; the Court has ample power to set aside the same without waiting for any objection to award being filed or without considering any application for setting aside the same. If there be any and irrespective of the fact whether or not any objection to the award was filed or whether the objection if filed was not within time. After the addition of section 26‑A of the Arbitration Act, it is the duty‑ and obligation of the arbitrator to record the reason for the award to enable the Court to see if the provisions of law arising in the case have been properly applied or if the award otherwise does not offend any provision of law. Contents of the award reveal that it creates rights regarding immovable properties but the award was not registered. Award in question was, therefore, ineffective to convey the rights in the properties in favour of respective parties as the principle laid down by the Hon'ble Supreme Court in the following judgments: 1998 SCMR 816 (Mst. Faridan Malik's case). 1988 SCMR 1623 (Nawabdin's case). 1990 PSC 809 (Lachmen Dass's case). Learned Civil Judge did not take the pain to look into the award, to find out if did or did not suffer from any infirmity or any validity or offended provisions of law. He did not examine the award to see the requirement of section 26 of the Arbitration Act was fulfilled in this case or not. He also did not see, if the award was against the provisions of the arbitration agreement or which was based on the arbitration agreement. Section 17 was interpreted by the Hon'ble Supreme Court in Pakistan through General Manager, P.R. v. Q.M.R. Expert Consultants (PLD 1990 SC 800) and observed as under:‑‑ We may observe that under section 17 of the Act, it is the duty of the Court to examine, whether there was any reason for modifying of the award or for setting aside the award notwithstanding that an affected party may have failed to file objections to the award on account of the expiry of the limitation period or the parties to the arbitration proceedings may be in collusion and because of that they may not file any objection to a collusive award. We are inclined to hold that in a fit case, the Court may on its own under section 17 of the Act modify or set aside the award if the facts and dictates of justice so demand. In the present case the learned Civil Judge observed that the award has been implemented by the parties in letter and spirit but it appears the observation is not sustainable as the appellant/petitioner agitated the matter before the trial Court since the application has been filed before the trial Court to make an award rule of the Court. Learned trial Court observed in the impugned judgment that appellant obtained several adjournments for filing the objections which is not in accordance with the order sheet of the trial Court. In view of what has been discussed above, the learned Civil Judge made the award rule of the Court without applying his independent mind in accordance with the law laid down by the superior Courts and in accordance with the provisions of the Arbitration Act. I am not inclined to give my opinion regarding the other contentions raised by the learned counsel for the parties so that the case of either parties should not be prejudiced. In view of what has been discussed above, the order of the trial Court, dated 23‑7‑1988 cannot sustain as the same suffers from material illegality and jurisdictional error. In view of what has been discussed above, appeal and revision are accepted. The order of the trial Court is set aside and the case is remanded to the learned trial Court for decision on merits in accordance with law without influenced by the aforesaid observation of this Court. Parties are directed to appear before the learned trial Court on 22‑12‑1999 who shall decide the application filed by the arbitrator to make the award rule of the Court within two months positively with intimation to the Deputy Registrar (Judicial) of this Court. Q.M.H./M.A.K./N‑191/L Case remanded,