1990 PLP 1924 (MLD)

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the order dated 1st of November, 1987 passed by the Additional District Judge, Lahore, accepting the petition for revision of the order of the trial Court dated 7‑6‑1976.

2. The petitioner was awarded a contract to carry out certain works in Lahore Township Scheme near Kot Lakhpat, by the Superintending Engineer, Punjab Health Engineering Department, Circle, Lahore. Subsequently a dispute having arisen between the parties, the petitioner filed an application under sections 5, 8 and 20 of the Arbitration Act, 1940, invoking arbitration clause in the agreement, praying that the dispute between the parties be referred to the arbitration. The learned Senior Civil Judge, Lahore on 4th March, 1976 referred the matter to sole arbitration of Mr. Muhammad Rashid Ahmad, who gave his award on 30‑4‑1976 whereby the petitioner was found entitled to recover Rs.3,00,277 from the respondents. This award was made rule of the Court by the trial Court and a decree was passed in accordance with it on 7‑6‑1976. It appears that no appeal was filed against the order of the trial Court but on 24th March, 1987 a petition under section 115 seeking revision of order of the trial Court dated 7‑6‑1976 was instituted by the respondents which was accepted by the Additional District Judge, Lahore on 1st of November, 1987. This order has been impugned by the petitioner in this Constitutional petition.

3. The arguments of Mr. Riaz Karim Qureshi, learned counsel for the petitioner have been heard in the absence of the respondents on whose behalf no one has entered appearance. The arbitration, in the present case, was through the intervention of the Court in pursuance of an application submitted by the petitioner under sections 5, 8 and 20 of the Arbitration Act, 1940. The trial Court after appointing Arbitrator had directed him to submit his award which was filed on 30th April, 1976 in Court in the presence of the learned counsel for the parties. It was directed on that day that objections, if any, be filed by them within 30 days of the filing of the award. On 7‑6‑1976 the trial Court observed that no objections had been filed by any of the parties nor any request for extension of time for filing the objections had been made and the award was, therefore, made a rule of the Court and decree passed in terms thereof. The ground which prevailed with the Additional District Judge in setting aside the order of the trial Court was that no notice as required by section 14(2) of the Arbitration Act, 1940 had been issued by the Court to the parties requiring them to file any objections. The view taken by the Additional District Judge, however, proceeds on misconception of the correct legal position and also suffers from misreading of the record which shows that the award was filed in the Court in presence of the learned counsel for the respondents and a copy of it was also handed over to him with a direction to file the objections, if any, within 30 days as required by law.

4. Section 14 does not prescribe any mode of service of notice. The object of requiring that a notice be issued to the parties clearly is that it should be brought to their knowledge that the award has been filed in Court so as to enable them to file the objections within the period of limitation fixed. It cannot, therefore, be insisted that even though the award was filed in Court in the presence of the parties or their counsel, a formal notice was necessary. The Supreme Court of Pakistan in Ashfaq Ali Qureshi v. Municipal Corporation Multan and another 1985 S C M R 597 observed that:‑‑ " ....Apparently, the prevalent view is that as the provision of the law is meant to enable the parties to know that the award has been filed in Court so that they may file their objections, if any, within the time prescribed, a formal compliance in strict conformity with the relevant provision of law is not to be insisted upon when substantial compliance has been made of it. In keeping with this view where the fact of filing of the award by the Arbitrator had already been in the knowledge of the parties and their counsel had in response to notice issued by the Court appeared and taken time to file their objections, as is in the present case, an insistence on a formal service of notice under Order XXIX would be a mere technicality ..... To the same effect is the judgment of this Court in Province of West Pakistan (Punjab) etc. v. Mian Abdul Hamid & Co. 1985 C L C 1170.

5. Another aspect which needs to be noticed is that the order passed by the trial Court on 7‑6‑1976 making the award rule of Court was open to appeal under section 39 of the Arbitration Act, 1940. However, this remedy was not availed of nor any explanation for not doing so is forthcoming on the record. Although it is correct that in exceptional cases, revisional Courts can interfere notwithstanding that the petitioner had failed to avail of the remedy of filing an appeal but there B must be adequate reasons for not doing so. Section 115, C.P.C. itself ordains that the revisional jurisdiction can be invoked only if no appeal lies to the Court exercising the revisional power. In the present case, as already mentioned, the respondents have failed to explain as to why alternate remedy of appeal had not been resorted to. For this reason also the impugned order of the Additional District Judge is not sustainable. In view of what has been said above, this writ petition is accepted, the order of the Additional District Judge dated 1‑11‑1987 is declared to be without lawful authority and of no legal effect with the result that the order dated 7‑6 1976 of the trial Court stands restored with no orders as to costs. M.B.A./S‑703/L Petition accepted.