P L D 1965 (W (PLP)

4. Mr. S. M. Nurul Hasan, the learned counsel for the petitioner has urged that all the parties interested in the dispute have joined in the reference and accepted the award and in token of acceptance have signed it. In this connection it will be observed that the two questions referred to the arbitrators for decision were (i) transaction regarding a Jeep, flour machine installed on a plot at Dibu and the construction raised over it; (ii) matrimonial dispute about the two girls given in marriage by the two parties. It is not denied that the arbitrators have also given their decision only in respect of these two disputes. On this aspect of the case the learned Appellate Court observed as under:‑-- "It is strange that the arbitrators have not cared to have taken the signatures of Muhammad Suleman and Ilyas as they do not appear to have seen the references. However, it is clear from the reading of the award that the disputes concerning Muhammad Suleman and Muhammad Ilyas had also been determined and finding given. There is nothing on the record that they were present at the time of proceedings. I was referred to ruling reported in P L D 1955 Kar. 497 wherein their Lordships Wahiduddin and Ortcheson, JJ. have observed that the award is effective only if all parties join in the proceedings. It was argued that Muhammad Ilyas, was a proforma party and therefore, his signature was not obtained on the second reference executed by the parties. I cannot accede to this proposition of the opponent. As regards Suleman that his signature appears in the second reference. At (sic) anyhow I find that Ilyas's signature does not appear in the second reference which relates to the dispute regarding a flour machine, jeep, land and other movable properties. The first reference was in general terms and does not show anything as to what was the subject‑matter in the dispute except 107 proceedings. I feel that this contention of the appellant ought to succeed." On going through the first reference it is quite clear that both Muhammad Ilyas and Muhammad Suleman were party to it. As regards the second document executed on 11th October 1959, the learned Appellate Court has treated it as a second reference but there is much substance in petitioner's counsel contention that it only elucidated the dispute between the parties and is part and parcel of the first reference. It is true that Muhammad Ilyas had not signed it but it has no effect on the validity of the award. In the first place, Muhammad Ilyas in this respect has not taken any such objection. Secondly, it is conceded that he is not at all interested in the dispute about the flour machine etc. which has been accepted as valid part of the award and made rule of the Court. I am, therefore, satisfied that the learned appellate Court fell into an error in holding that the award was vitiated for this reason. In Haji Muhammad Sharif v. Haji Ata Muhammad (P L D 1964 Kar, 54), Faruqui, J., held that mere non joinder of party regardless of fact whether party concerned was or was not interested in the matter would neither render the reference bad nor award void. I am in respectful agreement with this view and hold that the award on this ground could not be set aside.

5. In this connection Mr. F. M. Sandeela, the learned counsel for the opponents contended that since the matrimonial dispute was also referred to the arbitrators, it was incumbent on the parties to join the female whose fate was to be decided by the arbitrators. This objection need not detain me because the question of the dissolution of marriage of any person is not amenable to the jurisdiction of the arbitrators. Admittedly no such dispute could be referred to them. The learned Subordinate Judge was, therefore, perfectly justified in not making that portion of the award which dealt with this dispute as rule of the Court. It is also admitted by both the parties that these matrimonial disputes are no longer in issue as the two girls have been divorced by their husbands under, the order of the Court in separate judicial proceedings.

6. Mr. Sandeela, however, strongly contended that it was not open to the learned Subordinate Court to separate the bad portion of the award from the good portion and the learned Courts below should have declined to make the award as rule of the Court on the ground that it incorporated certain disputes which could not be the subject‑matter of reference or award. In support of his contention the learned counsel has relied on a decision of the Patna High Court in Jaldhari Rai v. Muhammad Abdul Kabir ((1923) 74 I C 469). It was held in that case that where an arbitration is made without the intervention of a Court and an application is made to file the award, if the award is good in part and bad in part, the Court cannot remit it to the arbitrator for amendment or declare valid the part to which no exception is taken if it is separable from the bad part. He further referred me to the two decisions of the Lahore High Court in Parma Dat v. Bipju (A I R 1916 Lah. 4) and Kaikabad v. Khambatta (I L R 1930 Lah. 342) in which it was held that the Court has no power to modify the award. The view placed before me in the first case cannot be accepted as good view in view of the decision of the Judicial Committee in Mst. Amir Begum v. Syed Badruddin Hussain (A I R 1914 P C 105). That was a case in respect of an award in arbitration proceedings without intervention of the Court. In that case their Lordships observed as under:‑-- "It is well‑recognised law that when a separable portion of an award is bad as for instance for being a matter clearly outside the power of the arbitrator; the remainder of the award if good, can be maintained." There are innumerable decisions of the Sind Court and other Courts in which this view has been followed throughout. It is not denied that the dispute relating to the flour machine or the land or the building constructed thereon is separable from the matrimonial dispute. It was, therefore, open to the learned subordinate Court to separate the good part of the award from the bad and to make the good part as rule of the Court, by separating the bad part from the award. In doing so the Court below did not in any way modify the award. Modification of the award only arises when certain changes are made in the decision given by the arbitrators The two Lahore cases, therefore, have no bearing on the present case. I would, therefore, repel the opponents' contention in this behalf.

7. The next question for consideration is whether the learned Appellate Court was justified in setting aside the award on the ground that the arbitrators failed to give an opportunity to the parties to adduce their evidence or by holding an enquiry in the absence of the parties. It was contended by the petitioner's counsel that these objections do not form part of the objections filed under section 14 of the Arbitration Act. On the other hand, Mr. Sandeela contended that these objections were raised in paragraphs 2 and 4 of the objections (Exh. 8) dated 24th March 1960. So far as the objection raised in paragraph 2 is concerned, it is in respect of the absence of signature of. interested parties on the reference, which has already been discussed in the earlier part of the judgment. Paragraph 4 of the objection is in the following terms:‑‑ "On para. 4, it is said that the award is inadmissible in evidence being unstamped it is ex parte and bad due to absence of marriage parties in particular. It is also bad from another point of view of the Amins having not examined any evidence about the so called admission, more so when the documentary evidence connected with the same liability had been rejected by the Amins as being forged." It will thus be noticed that the objection that the arbitrators did not give reasonable opportunity to the parties to adduce evidence or examined certain evidence in their absence was not raised on behalf of the opponents in the objections filed by them on 24th March 1960. This objection was, however, sought to be included later on. For this purpose the opponents moved an application under Order VI, rule 17, C. P. C. dated 11th May 1960, for amendment of the pleading. The learned Subordinate Court rejected it, which order was upheld by the learned District Judge in the judgment under reference. It cannot, therefore, be said that these objections were properly raised by the opponents or were open for consideration before the appellate Court. Mr. Nurul Hasan, the learned counsel for the petitioners referred to a decision of the Lahore High Court in Hari Shanker v. Mst. Amraoti (A I R 1944 Lah.280). In that case it was held by a learned Single Judge that the objection that a suit for declaration could not be referred to arbitration cannot be permitted to be raised for first time in appeal. In this connection Abdur Rahman, J. observed as under:‑-- "The consideration by the appellate Court of such an objection to the legality of the award which had not been raised before the trial Court is a material irregularity and in permitting such an objection to be raised for the first time, the appellate Court must be held to have acted in the exercise of its jurisdiction with material irregularity within section 115, Civil Procedure Code." On this view there is little doubt that the appellate Court in setting aside the award on this ground acted in the exercise of its jurisdiction with material irregularity.

8. I am, however, of the view that in the circumstances of the present case the grievance of the opponents that they were not given reasonable opportunity to adduce evidence or some enquiry was made behind their back has not much force. It will be noticed that the parties elucidated the disputes which were referred to the arbitrators on 11th October 1959, and the award was also announced on that date. In token of their acceptance both the parties and particularly the opponents signed the award after reading it. It is not suggested that the opponents were forced to accept the award or that the arbitration proceedings were abruptly closed. It was open to the opponents to move the arbitrators to afford them reasonable opportunity to adduce evidence. In the absence of any such move the only conclusion is that they did not want to adduce any evidence because the arbitrators, who happened to be closely related to them were fully aware of the facts.

9. On the question of making enquiry in the absence of the parties Mr. Sandeela has referred me to the evidence of Rab Nawaz, one of the arbitrators, who was appointed on behalf of the opponents. He stated in his deposition in the Subordinate Court that the arbitrators had heard the parties. He, however, admitted that one of the arbitrator namely Noor Muhammad visited Drib Mebar Shah and there interrogated one Hadi Bux uncle of Kadir Bux. But in cross‑examination to Mr. Iqtadar, one of the counsel of the petitioners, he explained that "Noor Muhammad interrogated Hadi Bux with permission of Amins and with consent of the parties." This witness was opponents arbitrator and his evidence leaves no doubt that the parties were given sufficient opportunity to adduce evidence in support of their case. On this evidence it is not possible to hold that the arbitrators in this respect had misconducted themselves or acted illegally. If Noor Muhammad had interrogated Hadi Bux with the permission of Amins and with the consent of the parties, certainly, it cannot be said to be an act or step which would vitiate the award.

10. Moreover, there is abundant authority in support of the contention of Mr. Nurul Hasan that in those cases in which the parties have accepted the award, it is not open to them to pick holes or to raise objections because in law they are estopped to do so. In support of his contention the learned counsel referred me to three decisions of the Lahore High Court in Wazir Ali v. Mahbub Ali (A I R 1914 Lah. 238) Gita Ram v. Kesho Ram ((1932) 135 I C 62) and Kanshi Ram v. Harnam Das (A I R 1940 Lah. 73). It was held in these cases that the parties,) who have signed the award should not be allowed to pick holes in it. On this basis also no notice should have been taken of the objections raised by the opponents. Having regard to the E fact that the opponents had accepted and signed the award, in law they were estopped to challenge its validity. I would, therefore, hold that the learned appellate Court committed a material irregularity in setting aside the award on this ground.

11. Mr. Sandeela, the learned counsel for the respondents took anew point to support the order passed by the learned Appellate Court. He contended that this Court should be reluctant to interfere in its revisional jurisdiction in those cases where substantial justice has been done. Secondly, that in law the petitioners are estopped by their conduct to have the award made as rule of the Court. None of the points raised by the learned counsel has any force. The mere fact that the Appellate Court relegated the parties to the state of affairs as they existed at the time of reference, would not mean that substantial justice has been done. In fact if the award is set aside, the dispute between them about movable and immovable property will continue. In such circumstances, it cannot be said that substantial justice has been done.

12. On the question of estoppel the learned counsel contended that the petitioners in spite of the award, took the matrimonial dispute by separate proceedings and having elected to choose another remedy it was not open to them to have the award made as rule of the Court. In support of his contention he relied on Monir's Law of Evidence at page 749 on the topic of Election and Waiver. The learned Author, while discussing the application of the Doctrine of estoppel by election of alternative remedies in Courts stated as under:‑-- "Election once made cannot be retraced. Thus where either of two alternative tribunals are open to a litigant, each having jurisdiction over the matters in dispute, and he resorts for his remedy to one of such tribunals in preference to the other he is precluded, as against his opponent, from having any subsequent recourse to the latter". This principle was also considered in an Indian decision by the Nagpur Judicial Commissioner's Court in Labhua Sao v. Chetan and another (A I R 1924 Nag. 275). It was held in that case that‑ "A person who has recourse to any special remedy provided or invokes or subjects himself to any special jurisdiction conferred by any particular statute, must follow up the special procedure laid down in that statute and must necessarily take the consequences that flow from his compliance or non‑compliance with the requirements of the statute in all its particulars. If he is successful in the remedy followed by him, he puts his opponent to the disadvantages of any failure which his opponent may be guilty of, but if he is unsuccessful he subjects himself to similar disadvantages," But this principle has no application in the present case. It is admitted by both the parties that the matrimonial question could not be the subject‑matter of any decision by the arbitrators. It was, therefore, open to the petitioners to have recourse to a Court of competent jurisdiction for adjudication upon the matrimonial question between the females of the two families. I would, therefore repel this contention.

13. After careful consideration of the points raised before me I am satisfied that the learned appellate Court was not justified in setting aside order of the learned subordinate Court in making the award as rule of the Court. I would, therefore, set aside the order passed in appeal and restore the order passed by the learned subordinate Court.

14. In the result the revision is allowed with costs. Revision allowed.