P L D 1959 (W (PLP)

" Section 14 (2) contemplates the filing of the award in the Court by the arbitrator ; it is not essential that he should himself take it to the Court and it is enough if he causes it to be filed. It is true that no formality in the act of filing the award is required; the arbitrator need not make an application for permission or leave to file the award. He can just file the award in the Court without any application but the act of filing must be his or on his behalf ; if somebody else files it without his authority or not on his behalf, so that he cannot be said to have caused it to be filed, it is not an act to be taken notice of by the Court. An arbitrator cannot be said to have caused the award to be filed unless he delivers it to another person with a direction to file it or directs the person, who has custody of it to file it. If an arbitrator simply hands over the award to a party, even if he knows or has reason to believe that the party will file it in the Court and it files it, so long as he has not expressly authorised' it to file it, he cannot be said to have caused it to be filed he can always obtain a copy from the registration department and file it in the Court".

9. Sardar Muhammad Iqbal, the learned Counsel for the respondent, on the other hand, has placed before me certain other authorities which are contrary to the view taken in the Allahabad High Court decision, namely, John v. Soomar (A I R 1943 Sind 33), Jai Kishen v. Ram Lal Gupta (A I R 1944 Lah. 398), Ganga Ram v. Radha Kishan (A I R 1955 Ph. 145) and an un reported decision of the Lahore High Court decided by Kayani, J. in Civil Revision No. 133 of 1952, dated 24th November, 1952.

10. In A I R 1943 Sind 33 then arbitrator made an applica tion to the Court under rule 28 of the Rules of the Chief Court of Sind forwarding the award that he had made to be filed in the Court. Notices were issued to the parties and the Second Registrar reported the matter to the Court stating that the application of the arbitrator was barred under Article 178 of the Limitation Act. The learned Judge came to the conclusion that Article 178 applied only to cases where a party to the arbitration proceedings applied to the Court for filing of an award either under section 14 (2) or under the implied power given under section 38, Arbitration Act, 1940. It does not apply to an application by the arbitrator for the filing of the award in Court. Lobo, J. observed :‑ " Now it appears to me that under the Arbitration Act there are three distinct ways in which an award may be filed in Court. Under section 14 (ii) the arbitrator shall at the request of a party cause the award or a signed copy of it together with any depositions and documents which may have been taken and proved before him to be filed in Court. Again section 14 (ii) provides that an arbitrator may be directed by the Court to cause an award or a signed copy of it to be filed in Court. The third way in which an award may be filed in Court is to be gathered from the provisions of section 38, Arbitration Act, which provides: If in any case an arbitrator or umpire refuses to deliver his award except on payment of the fees demanded by him, the Court may, on an application in this behalf, order that the arbitrator or umpire shall deliver the award to the applicant on payment into Court by the applicant of the fees demanded, and shall, further order that out of the money so paid into Court there shall be paid to the arbitrator or umpire by way of fees such sum as the Court may consider reasonable and that the balance of the money, if any, shall be refunded to the applicant.' " There are two other sub‑clauses of this section but with these I am not now concerned. Now it follows that a person who has obtained possession of an award through the assistance of the Court under S. 38 must have the right to file it in Court. Otherwise he will have sought the assistance of the Court to no practical purpose whatever and the Court will have made an order which affords the applicant no material relief. It must be remembered that before Act 10 of 1940 came into force, a suit could be filed on an award obtained under the Arbitration Act 9 of 1899 ; under S, 32 of Act 10 of 1940 no suit can now be filed on an award. Though therefore S. 38 does not expressly empower the applicant referred to therein to file an award in Court, such a power is to my mind a proper and necessary inference to be drawn from the provisions of the section which could never have been intended to provide a relief which was of no practical purpose or 'utility to the applicant."

11. In A I R 1944 Lah. 298, Abdur Rahman J. was dealing with a case in which an award was handed over by the arbitrator to one of the parties. The party concerned filed the award in Court after the expiry of 90 days for making it a rule of the Court. Since the original award was filed by him along with his application, he did not ask for an order for the filing of it but only asked that it may be made a rule of the Court. The other party raised an objection that as the application was made after 90 days of the date of the award, it was barred under Article 178, Limitation Act. The learned Judge held that as the party concerned was in possession of the award, he was entitled to enforce it in his individual capacity and for the purposes of obtaining a decree he could not be deemed to have attached the award to the application or filed the award in Court as the agent of the arbitrator so as to attract the provisions of section

14. Such application could not be recorded as one for filing the award. The learned Judge observed: " It is not possible for me to accept either of these conten tions. It cannot be disputed that the award had been given by the arbitrators to the petitioner at the time when it was made with the object of getting a decree passed in accordance therewith if he so needed it. But to hold that the petitioner was constituted to be an agent of the arbitrators for the purpose of filing the award on their behalf is wholly opposed to facts and is in any case irrelevant under section 14, Arbitration Act. The award had been left with the petitioner not because he was appointed to be an agent on behalf of the arbitrators but because the arbitrators wanted the petitioner to be in a position to ‑ enforce the award . . . . . . . in spite or inde pendently of them . . . . . . . if he wished to do so. Would he have been bound to return the award to the arbitrators if he were called upon to do so ? Or, was he bound to keep the award safe and intact if he did not care to realise his money from the respondent ? In either case my answer would be in the negative. It is impossible to suggest that when he made the application for the award to be made a rule of the Court, he did so as an agent on behalf of the arbitrators or in any capacity other than his individual one in which he was entitled to enforce the award and to have for that purpose a decree passed in accordance with the award. If he did not make that application as an agent, how could he be deemed to have attached the award to the application or filed the award in Court as an agent of the arbitrators ? The position that the application was or must be taken to be for the filing of the award is equally untenable. There is nothing in the whole of the application to suggest that it was for the purpose of having the award filed. Indeed, the peti tioner did not ask for that order as he was in possession of the award and was filing it in Court with his application. That is why there was no prayer in the application for the award to be filed. The omission was not accidental but deliberate. Moreover, if the award was filed by the petitioner along with the application, he could not have caused it to be filed by the arbitrators under section 14, Arbitration Act. Since the award had been filed by the petitioner, with the application he could only ask the Court to proceed from the stage after it would have been filed before the Court, that is to say, for the purpose of making an inquiry that might have resulted in ordering a modification or correction of the award under section 15 or in remitting the award under section 16 or setting it aside or refusing to set it aside under section 17, Arbitration Act. In other words, a notice as required in section 14 to the arbitrators to cause the award or a signed copy of it etc., to be filed in Court was unnecessary in a case like this. Article 178, Limitation Act, as amended by the Arbitration Act reads as follows :‑

178. Under the Arbitration Act, 1940, for the filing in Court of an award . . . . Ninety days . . . . The date of service of the notice of the making of the award.' As this application was not for the filing in Court of the award which had been, as already stated, actually filed along with the application, col. 1 of Art, 178 could not apply."

12. Kayani, J. also considered a similar case in Civil Revision No. 133 of 1952. In that case, the parties referred their dispute out of Court to the Arbitration of one Muhammad Ismail Nur who gave an award on 26th of November 1951. One of the parties applied under section 17 0f the Arbitration Act to the Senior Civil Judge, Lahore, that judgment maybe pro nounced in accordance with the award and a decree be drawn up. The opposite party objected that the application should have been under section 14 of the Act and that an application under section 17 was premature. The Court overruled the objection and the matter was taken to the High Court. Kayani, J. in that connection observed as under :‑ " The procedure as prescribed in the Act is that when the arbitrator has made an award, he shall sign it and give notice to the parties of the making and signing thereof. This is in section 14 (1). By subsection (2) the arbitrator shall at the request of any party to the arbitration agreement, cause the award to be filed in Court and the Court shall thereupon give notice to the parties of the filing of the award. Under section 15 the Court has power to modify the award in certain case. Under section 16 it has power to remit the award for reconsideration. Under section 17 where the Court sees no cause to remit the award, it shall, after the time for making an application to set aside the award has expired, or after refusing such application if it has been made, proceed to announce judgment according to the award, and upon the judgment so pronounced a decree shall follow. It would thus appear that an application is initiated under the provisions of section 14 and that section 17 only represents the final stages of the case. All that can be done under section 14, however, is that the arbitrator shall, at the request of a party, cause the award to be filed in Court. That is on the assumption that the award is still with the arbitrator. In the present case the arbitrator has supplied both parties with the award, or a copy thereof. This award has already been filed in Court by the Shahnoor Films Limited with their application under section

17. It would, consequently, be futile to make an application under section 14 for the very thing which the applicant had itself done. What the applicant now wants to be done is provided for in section 17, namely, that judgment may be given according to the award. The only question, therefore, is whether, if an application could not be made under section 14, there would be no further remedy for the person in whose favour the award has been given. It was held in Jai Kishen v. Ram Lal Gupta that the Arbitration Act is not exhaustive in the sense that an application like this could be thrown out as incompetent in the absence of a clear provi sion in the Act. It was further observed that, since there was a distinct provision in section 17 for judgment being pronounced in accordance with the award, it could not be said that no application was competent under that section. I respectfully follow this ruling because in a case like this, where the arbitrator supplies the parties with the award, there would seem to be no remedy except an application for judgment to be pronounced in accordance with it. Learned counsel for the petitioner argued that if the applica tion had been made under section 14, he would have had a right of filing objections within thirty days, and that since he had received no notice of the filing of the award under section 14 but merely of the fact that an application had been filed under section 17, his objections, which had been filed in the lower Court, were not within time. This argument would seem to be infructuous by the very fact that issues have already been ‑ framed in accordance with his objections and that there is no issue in respect of the objections being time‑barred. It will always be open to him, however, to show that his objections were within thirty days from the date of service of ` notice of the filing of the award ' within, the meaning of Article 158 of the Limitation Act. The petition is dismissed with costs." It will thus be observed that the Lahore High Court and Sind Chief Court have consistently taken the veiw that it is not necessary that an award for obtaining a decree should always be filed in accordance with the provisions of section 14 of the Arbitration Act. According to this view, an award could be filed by one of the parties, a decree could be passed under section 17 of the Arbitration Act and that no period of limitation was provided for such applications.

13. The question was further examined by East Punjab High Court in a case reported in A I R 1955 Pb. 145 and A I R 1952 Pb. 350, already referred to, was dissented from. In that case, an application was made by one of the parties to the award for making it a rule of the Court and for passing a decree in accordance therewith. It was objected. The learned Judges exhaustively dealt with the question and relying on rule 10 of the rules framed by the Lahore High Court under section 44 of the Arbitration Act, held that parties to the arbitration could file an award and obtain a decree. Harnam Singh J., one of the Judges constituting the Bench, after reviewing the whole case law on the subject, observed :‑ "Rule 10 (a) read with Rule 10 (c) contemplates that in fit cases parties to the arbitration may file the award in Court. In cases falling within S. 14 (2) of the Act the arbitrator is called upon to file the award while in a case falling within R. 10 the award may be filed by any of the parties to the arbitration in the manner prescribed in R.

3. Since S. 38 of the Act gives right to any of the parties to the arbitration to obtain possession of the award through the assistance of the Court, there is no doubt that that party must have the right to file the award in Court. That being the position of matters, R. 10 made under section 44 of the Act is not inconsistent with the provisions of the Act." Kapur, J., .the other learned Judge, in that connection observed :‑ " Applications for enforcement of the awards are not con fined to S. 14 alone but such applications are possible even outside that section, because S. 14 deals with filing of the awards by an arbitrator or an umpire and does not cover an application made by a party for the enforcement of the award. When an award is to be filed by an arbitrator at the instance of the party or on the direction of the Court S. 14 (2) will be applicable, and when an award is sought to be enforced by a party section 14 (2) is not applicable. S. 14 (2) is not exhaustive and the Act does not contemplate applications outside S. 14 (2)."

14. On a careful consideration of the matter, I am in respectful agreement with the view taken by the Lahore High Court and Chief Court of Sind. It seems to me that although the Arbitration Act is a consolidating Act, section 14 of the said enactment is not the only provision of law under which the Award can be filed and made rule of the Court. Section 38 of the Arbitration Act is one of the methods and instances by which the award can be obtained from the arbitrator. It will be idle to think that there is no remedy provided on an award in such a manner. In my opinion the provisions of section 17 of the Arbitration Act will be applicable to such cases and the party in whose favour the award has been given is entitled to invoke the aid of the Court under the said provisions. It was to meet such cases that the Lahore High Court and Sind Chief Court while framing the rules under section 44 have made provisions.

15. But the learned counsel for the appellant has urged that Rule 10 of the Lahore High Court, framed under section 44 of the Arbitration Act, applicable in this case, is ultra vires and outside the purview of section 44 of the Arbitration Act. Rule 10 of the Lahore High Court is reproduced below :‑ "

10. Filing of award‑(a) The arbitrator or umpire or any of the parties to the arbitration may cause the award or a" signed copy thereof to be filed in Court in the manner prescribed in Rule No. 3. (b) When the award is filed by the arbitrator or umpire, he shall, together with the award, send to the Court any depositions and documents which have been taken and proved before him, and the opinion pronounced by the Court on the special case submitted by him, if any, in accordance with section 14 of the Act, by forwarding the same under a sealed cover addressed to the Court. He shall also send together with the award a copy of the notice given to the parties concerned and affidavit of service of such notice and of attestation of his signature on the award. (c) When the award is filed by any of the parties to the arbitration under cl. (a), the party may move the Court for directing the arbitrator to produce in Court such of the docu ments as were produced before him together with the record of the arbitration." This rule clearly authorises any party to the arbitration to file the award in Court in the manner: prescribed in Rule 3 and to move the Court to ask the arbitrators to file such documents and other papers which are with them in connection with the arbitration proceedings. It clearly contemplates an award filed by any party to the arbitration to be made a rule of the Court under section 17 of the Arbitration Act. The contention of Mr. Bashir Ahmad, the learned counsel for the appellant is that under section 44 only such rules can be framed as are in accordance with the provisions of the Arbitration Act. According to him there is no provision in the Act which authorises a party to the arbitration proceedings to file an award in Court and as a corollary no rule was necessary. The answer to this objection is very simple. Under section 38 of the Arbitration Act, as observed by Lobo, J. in A I R 1943 Sind 33, if a party is entitled to have the possession of the award he is certainly entitled to get it made a rule of the Court and to obtain a judgment thereon. Certainly, the provisions of the Arbitration Act are for theassistance of the parties in arbitration proceedings and no derogatory to them. If there is no express provision in the Arbitration Act to meet such cases, certainly, in order to meet a contingency, under the said provision, the High Court was perfectly justified to frame rule under section

44. Section 44 of the Arbitration Act reads as under :‑ " The High Court may make rules consistent with this. Act as to‑ (a) the filing of awards and all proceedings consequent there on or incidental thereto ; (b) the filing and hearing of special cases and all proceedings consequent thereon or incidental thereto ; (c) the staying of any suit or proceedings in contravention of an arbitration agreement ; (d) the forms to be used for the purposes of this Act ; (e) generally, all proceedings in Court under this Act." Subclauses (a) and (c) are relevant on the question under con sideration. A party to the arbitration proceeding is entitled to obtain award under section

38. Such an award can only be filed by a party and when the High Court framed rules they were making provisions for the effective implementation of the said provision of law. I, therefore, consider that there is no force in this contention and this rule is intra vires. This being the position, the other objections raised by the learned counsel about the validity of the proceedings in this case and the jurisdiction of the Court to pass a decree are not at all of great importance and they are of academic nature. In any case, in my opinion, the view taken by Abdur Rahman, J. in A I R 1944 Lah. 398 and by Kayani, J. in Civil Revision No. 133 of 1952 are complete answers to the objections raised before me. Section 17 definitely deals with cases where the award has come before the Court in one way or the other, and if once an award has come before the Court certainly the Court has got the jurisdiction to pass a decree thereon. The objection, therefore, that the award was mysteriously brought on the record by the respondent is not very material for the consideration of the question in dispute. 1, therefore, hold that the view taken by the learned Judge below on this question is perfectly correct and cannot be assailed.

16. The second objection raised on behalf of the appellant is that the appellant was not a free agent and the agreement to refer the dispute to arbitration and the award signed by her are not valid documents. This objection will be dealt with the last objection raised on behalf of the appellant as they are connected inter se. I will, therefore, pass on to the third objection. It was urged on behalf of the appellant that the arbitrators in this case did not meet, did not hear the parties and were not entitled to incorporate a compromise arrived at by the parties before them and for this reason the award cannot be said to be based on arbitration proceedings and is not a valid document. This contention, in my opinion, has also no force. The unanimous view of the judicial authorities in this behalf is that it is not necessary for the arbitrators to hear the parties, to record the evidence and then to arrive at a decision. If the parties have compromised the matter, the arbitrators are entitled to incorporate it in the award and to make it as the basis of the award. Such an award is treated as a valid document.

17. Sardar Muhammad Iqbal, the learned counsel for the respondent, has drawn my attention to a number of authorities in support of this proposition. The learned counsel has relied on Gobardhan Das v. Jai Kishen Das (I L R 22 All. 224), Darbari Lal v. Wasu Malik (A I R 1920 Lah. 220), Yenkatramana v. Krishna (A I R 1925 Mad. 56), Sricharau v. Makhan Lal (A I R 1919 Cal. 42) and Dulan Bai v. Sundersao and another (A I R 1938 Nag. 132). In all the cases the award was based on a compromise arrived at between the parties, and the contention before the Court was that such an award was an invalid document. The contention was repelled and it was held that such an award was a valid document. Out of these decisions I L R 22 All. 224 is the basic authority on this question. The learned Judges in that case observed : -- "Now with regard to the award itself, both the arbitrators have given their evidence and they describe what they did. Their procedure was certainly singular in one respect. One Gulab Das, the father‑in‑law of the appellant, appears to have interested himself in the matter and he told Ballabh Das, one of the arbitrators, that the arbitrators need not trouble themselves as he would bring the award and have it signed. He and other relatives of the parties seem to have come to a settlement of the matters in dispute. They drafted an award, and Gulab Das and others, including the appellant, took a fair copy of the award to the arbitrators for signature. The arbitrators signed the award, and at the end both parties signed it also, and stated that they accepted the award. The arbitrators further state that at the same time the award was read out and that the appellant heard it read. They say that they held no meetings and gave no consideration to the matter because they thought that the dispute had been amicably settled with the consent of the parties in accordance with the draft award, and that in substance they adopted the draft, and gave their award in accordance with the settlement agreed to by both parties: If the award really represented a settlement agreed to by the parties, I see no objection to the draft being adopted and the award being made by the arbitrators in accordance with the settlement, any more than I see any objection to a Court passing a decree in accordance with an agreement arrived at by the litigants. The only peculiarity here is that the award on the face of it professes to be, not the adoption of a settlement arrived at by the parties, but the result of a judicial consideration by the arbitrators themselves of the issues which they formulate, on the statements of the parties and on the depositions of certain witnesses ; whereas it is clear that they took no evidence and did not hold ,any sittings at all. But they signed the award, and the conclusion which they thus signed as accepted by the parties, who of course knew perfectly well how the settlement had been arrived at, and the award drawn up. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * I think that there is nothing to show the exercise of undue influence in the settlement upon which the award was made or in the signing of the award, and, that being so, the arbitrators were competent to give the award in the way they did give it with the knowledge and consent of the parties. The award was valid, and consequently no appeal from the decree founded on it can be maintained." In A I R 1920 Lah. 220, a Division Bench of the Lahore High Court consisting of Shadi Lai and Broadway, JJ. it was observed :‑ " It appears that the arbitrator did not make any independent inquiry into the matter in controversy between the parties, but the fact that the award embodies an agreement arrived at between the parties does not prevent the award being a valid and binding award between the parties: vide inter alia Gobardhan Dos v. Jai Kishin Das. Upon an examination of the evidence adduced by the parties we have reached the conclusion that the arbitrator delivered an award, which was agreed to by the parties and was signed by them in token of their consent. An award when delivered is binding upon the parties, and it is not therefore necessary to determine whether it was the arbitrator himself or the plaintiff Budhu Ram who destroyed the paper containing the terms of the award. The defendant has succeeded in proving the essential terms of the award and we concur in the conclusion of the learned Subordinate Judge that the suit for rendition of accounts cannot be maintained. This finding disposes of the appeal preferred by the plaintiffs." In Narbadabai v. Natverlal (A I R 1953 Bom. 386), Chagla, C. J. observed as under :‑ "Once parties have referred their disputes to a domestic forum, it is that domestic forum alone that can decide upon those disputes. The forum may decide upon those disputes by adjudi cating upon those disputes ; it may decide those disputes if the parties consent to take a decision on an agreement. Whether in one case or the other, the decision of the domestic forum, whe ther by consent or in invitum, is an award and has all the characteristics of an award." Now the evidence in this case shows that no arbitration proceed ings were held in the presence of the parties. At first the consent of the parties to the terms of compromise was obtained by their respective arbitrators who incorporated them in the award and jointly signed it. The award was then taken to the parties, who accepted it and in token of acceptance appended their signatures to it. It is thus clear that the arbitrators did not hold any formal sitting and gave the award in dispute on the basis of a compromise arrived at between the parties. In my opinion the procedure adopted by the arbitrators was perfectly justified and legal and cannot be objected to. It appears to me that in a matter where the parties have already compromised the matter, it is futile to hold formal arbitration sittings. In such cases it will be sufficient if the arbitrators record the terms of the compromise in the award. The decisions discussed above support this view and the learned counsel for the appellant has not been able to refer to any contrary view. I am further of the view that the compromise having merged in the award, it is this document which will be operative between the parties and not the compromise itself. I, therefore, find no force in this contention and hold that the view taken by the Subordinate Court is correct.

18. The last contention raised by the learned counsel for the appellant is that the trial Court was not justified in rejecting the prayer of the appellant to examine herself as a witness. Such objections are generally decided after taking into consideration the time and stage at which the prayer is made and disallowed. The narration of the facts given in the earlier part of the judgment shows that the parties had already closed their evidence on 5th of May 1958. The matter was adjourned for arguments to 8th of May 1958. On 8th of May 1958, the appellant made an application to be examined as a witness in the case. Mr. Bashir Ahmad, the learned counsel for the appellant, urged that the trial Court, in the interest of justice, should have permitted the appellant to examine herself as a witness. In my opinion, there is no force in this con tention. The appellant was represented by a counsel. It was for him to decide before closing the case whether the appellant was a necessary witness or not. He closed evidence without reserving any right to examine the appellant as a witness. In such event then appellant, as of right, was not entitled to any indulgence; and there E is no doubt in my mind that the learned Judge, unless properly moved, was perfectly justified to refuse such a prayer. . The application which was made before the learned Judge was entirely of a different character. He was not asked to reopen the case or to review his previous order. A simple application was made that the appellant should be allowed to be examined as a witness. The learned Judge in his order dated 8th of May 1958 observed that the application was made to delay the proceedings and rejected it. In my opinion, he was perfectly within his right to do so. I was, however, inclined at one stage to remand the case for the exami nation of the appellant as a witness for the proper decision of the appeal. But there must be some compelling reason to exercise this power. The plea taken by the appellant in the Subordinate Court was that the document, namely, the agreement to refer the dispute to arbitration, and the award was obtained by undue influence. The particulars of the undue influence given in the objections disclose that she was suffering from high blood pressure and many other ailments. The respondent took undue advantage of the state of her health and began to dominate her mind and Will and got the agreement and other documents signed at a time when she could not comprehend their implications. This plea, therefore, shall have to be decided in the light of these particulars. The evidence on the record, however, gives a different version. Mr. Monaghan (R. W. 4), the son‑in‑law of the appellant, who was examined as a witness in this case, stated as under :‑ "I have been advising her in her business but she would com pletely disregard my advice because of mental state of health. I tried to persuade her not to enter into any agreement of arbitration. Two papers were brought by her advocate Mr. Minto one of which was an agreement to arbitration and the other was the award. Both these documents were signed by Mrs. Keays Byrne at one time. These documents are Exhs. P. 1 and P.

2. The present state of her health is very bad. She cannot move. No evidence was recorded by the arbitrators in my presence." In cross‑examination, this witness admitted as under :‑ "I was present when the agreement Exh. P. 1 was signed by Mrs. Keays Byrne. I read the document. I told Mrs. Keays Byrne that the document was the agreement of arbitration and she should not sign it. I did not as a matter of fact ask her not to sign the document at that time but I had been telling her previously not to enter into any agreements with the landlord which might result in her ejectment from the premises. But she would not listen to me. Mrs. Keays Byrne signed the documents within a couple of minutes and I think without reading them." This witness admitted that he was also working in the hotel and deriving benefit out of it. He also admitted that according to the award she was to vacate the premises till 30th of November 1957. Brig. Muhammad Ayub Khan who treated the appellant from 25th of March 1957 to 6th of April 1957 stated that during this period her blood pressure was normal and she was suffering only from the disease of heart failure. He said nothing about her mental condition and only deposed that during this period she was con fined to bed. The evidence of Col. F. Kuhbacher is also not of much help. This witness' is a Gynecologist and is not a specialist of heart diseases or of blood pressure. He made a general state ment that during the months of March and April she was not fully fit to conduct her business. Certainly this does riot mean that her mental condition was not good. There is thus no positive evidence on the record to establish that on or about 22nd April 1957 the appellant was seriously ill and was unable to understand the terms of any document. On the contrary, there is the clear evidence of her son‑in‑law that' he told her that the document in question was the agreement of arbitration and she should not sign it but she did not listen to him. This proves that at the time of signing the agreement and accepting the award she had the advice of her own relative and it is obvious to me that in such circumstances the plea of undue influence' or of not being a free agent docs not arise and cannot succeed. It is further proved beyond doubt that the res pondent was not dominating her will and did not exercise any influence, what to say of undue influence. In my opinion, in such circumstances, even if the petitioner comes forward and makes a statement that she was under the undue influence of the respondent, such evidence would be of no value and carry no weight. In the face of the evidence on the record, the statement of the appellant will not give any help in the decision of the appeal. This view is further strengthened by the fact that in appeal an entirely new colour is given to the plea of undue influence. In the grounds of appeal the allegation of exercise of undue influence by the respon dent has practically been given up. This allegation is now against Mr. Minto, her own legal adviser, which means that she wants to change the front in this respect completely and base this appeal on different set of circumstances. This is not permissible under the law. On the other hand, this indicates that the plea of undue influence or "suggestive fraud" has no foundation, and is a false allegation. 1, therefore, consider that this is not a fit case for the exercise of the powers vested in this Court under Order XLI, rule 27 of the Code of Civil Procedure or even under section 151 of the Code of Civil Procedure. On merits, I am clearly of the opinion that the appellant has failed to establish that the respondent exercised any undue influence on her or that the state of her health at the time of executing the award in dispute was such that she could not understand its impli cation. I have already referred to the statement of her son‑in‑law which proves that she had independent advice at the time of exe cuting and signing the documents in dispute. The letter dated 7th June 1957 addressed to the Subordinate Court, already referred to, further establishes that out of her own free will, she "reached an out of Court agreement" with the respondent and that "dispute had Been arbitrated on by two chosen Advocates of law" and that "this agreement is signed by both parties and witnessed by both arbitrators and dated 22nd April 1957". Thus the appellant has accepted the validity of the documents in dispute in clear terms. In my opinion there cannot be a better evidence of the fact that the plea of undue influence is absolutely false and in law cannot be accepted. For this reason this contention also fails. Before concluding I must express that the way in which the execution proceedings were proceeded before the Subordinate Court in this case cannot inspi4e confidence of the litigant public. The Subordinate Courts in such cases ought to give reasonable time to judgment‑debtors to vacate premises. If they will proceed in haste, it is bound to cause inconvenience and invite unnecessary criticism. The well known maxim, that justice should not only be done but appear to have been done, must always be the guiding principle of the Civil Courts. While practicing at the Bar I have found in some of the judicial officers a tendency to proceed hurriedly with I the execution of the decrees. This tendency some time results in miscarriage of justice. This should be discontinued and before issuing eviction orders they must always apply their mind whether it is a fit case where immediate eviction order should be issued. I hope the Subordinate Court concerned in future will be more careful. For the reasons given above, I dismiss the appeal with costs. I further direct that the decree of the Subordinate Court will be executed after one month of the passing of this order. A. H. Appeal dismissed.