2004 PLP 873 (MLD)

‑‑‑‑Ss.30 & 33, second proviso‑‑‑Arbitration (Amendment) Ordinance (XXVII of 1977), S.2‑‑‑General Clauses Act (X of 1897), S.7‑‑ Arbitration award‑‑‑Objections‑‑‑Repealing of statute‑‑‑Furnishing of security under S.33, second proviso, of Arbitration Act, 1940‑‑‑Plea raised by the petitioner was that as the second proviso had been omitted from the Arbitration Act, 1940, therefore, security could not be deposited‑‑‑Contention of the respondent was that the statute omitting the second proviso of S.33 of Arbitration Act, 1940, was repealed, therefore, the proviso was revived and the Trial Court had rightly asked the petitioner to furnish the security‑‑‑Validity‑‑‑If it was intended to revive either wholly or partially any enactment that had been wholly or partially repealed, an express statement in the repealing statute had to be made‑‑‑No such express statement in the repealing statute was present that the purpose of the same was to revive the second proviso to S.33 of Arbitration Act, 1940, which had been omitted by the Arbitration (Amendment) Ordinance, 1977‑‑‑Order of Trial Court directing the petitioner to deposit the security equivalent to the amount of award, was set aside. Afnan Karim Kundi for Petitioners. Raheel Malik and Raja Amjad Iqbal for Respondents. Date of hearing: 22nd January, 2004. Some disputes arising between the petitioners on the one hand and respondent No.1 on the other were agreed to be referred to arbitration. The respondent No.2 was appointed as such. He entered upon reference and made and published his award on 22‑4‑1999. This award was filed in Court. Thereafter another document titled as a final award dated 29‑6‑1999 was filed. The petitioners filed objections in terms of section 30 read with section 33 of the Arbitration Act, 1940. The respondent No.1 filed a reply. Vide order dated 26‑9‑2000, the learned trial Court proceeded to direct the petitioners to furnish security to the satisfaction of the Court equivalent to the amount mentioned in the award within a period of four weeks as a pre‑condition for consideration of the said objections.

2. Learned counsel for the petitioners contends that the impugned order is without jurisdiction inasmuch as there is no warrant in law for the same. The learned counsel for the respondent No.1, on the other hand, contends that the Arbitration (Amendment) Ordinance, 1977, whereby the proviso laying down the said condition was omitted, itself was repealed vide Federal Laws (Revision and Declaration) Ordinance (Ordinance No.XXVII of 1981) and as such the impugned order has been passed in proper exercise of jurisdiction. Learned counsel for the petitioners rejoins to state that there was no express declaration in the said Ordinance No.XXVII of 1981 for revival of the omitted proviso.

3. I have given some thought to the respective contentions of the learned counsel for the parties. I find force in the contention of the learned counsel for the petitioners. Now the second proviso was added to section 33 of the Arbitration Act, 1940 vide the Law Reforms Ordinance, 1972. Vide Section 2 of the Arbitration (Amendment) Ordinance, 1977, the said proviso was omitted. This Ordinance of 1977 itself was repealed vide Ordinance No.27 of 1981. Now section 7 of the General Clauses Act, 1897 lays down that in any Central Act made after commencement of the said General Clauses Act, 1897, it shall be necessary for the purpose of reviving, either wholly or partially, any enactment wholly or partially repealed, expressly to state that purpose. It will thus be seen that by virtue of the said section 7 in case it is intended to revive either wholly or partially any enactment that had been wholly or partially repealed, an express statement has to be made in the Central Act. There is no such express statement in the said Ordinance No.XXVII of 1981 that the purpose of the same is to revive the said second proviso that was omitted by the Arbitration (Amendment) Ordinance, 1977. In view of the said legal position, the impugned order is found to be without jurisdiction. The civil revision is allowed and the impugned order dated 26‑9‑2000 is set aside. I am told that the matter is still pending before the learned trial Court. A copy of this order be immediately remitted to the learned trial Court with the direction to conclude the proceedings before the commencement of Summer Vacations, 2004. No order as to costs. M.H./I‑12/L Revision allowed.