1996 PLP 1115 (MLD)

3. As per the remand order dated 14‑7‑1992 the Award was to be submitted in Court in 17‑10‑1992 for further proceedings. On that date, learned counsel for the parties appeared in Court but the case was adjourned to 19‑11‑1992 to await the Award. In this date in the presence of the learned counsel for the parties, extension in time for making the award was granted on the request of the Arbitrator. After the receipt of the Award, the Court passed the order on 4‑1‑1993 in the presence of the learned counsel for the parties to file objections on the Award and adjourned the case to 9‑1‑1993. On this date, the Court happened to be on leave. On 16‑1‑1993 the case was taken up in the presence of the learned counsel for the parties and the case was adjourned to 27‑1‑1993 to give further time to the pries to file the objections to the Award. On 27‑1‑1993, learned counsel for the respondent (contractor) made a statement that he did not want to file any objection to the award which should be accepted as such. Last opportunity was granted to the appellants by the learned trial Court to file the objections and adjourned the case to 3‑2‑1993. Mr. Khushnud Afzal Mirza, Special Government Pleader appeared on that date as counsel of the appellants and made a statement that objections to the award had not to be filed on behalf of the appellants. Thereafter, the case was adjourned to 7‑2‑1993 for arguments. On this date, in the presence of the learned counsel for the respondent and Mr. Khusnud Afzal Mirza, Advocate for the appellants, the award dated 16‑12‑1992 was made rule of the Court after hearing the arguments of the parties. He found that "the objections upon the award were obtained but none of the parties filed their objections thereon. As the parties are not at issue and there is no controversy between them upon the adjudication of the Superintending Engineer on the claims Nos. l and 2, so that award dated 16‑12‑1992 is hereby made as rule of the Court". It is this order and decree dated 7‑2‑1993, which have been challenged in the present appeal filed under section 39 of the Act.

4. Learned counsel for the appellants has submitted that the learned trial Court did not issue mandatory notice under section 14(2) of the Act to the appellants nor reasonable opportunity was provided to them for filing objections on the award dated 16‑12‑1992. He has further submitted that the statement dated 3‑2‑1993 made by the Special Government Pleader was without authority and as such it was not binding on the appellants. Learned counsel for the respondent, on the other hand, has submitted that the order whereby award was remitted for re‑adjudication of claims Nos. 1 and 2 was not challenged. Thereafore, the award subsequently given and submitted in Court cannot be challenged. He has placed reliance on Government of East Pakistan v. Messrs A. Rab & Sons and another PLD 1967 Dacca

797. With regard to the authority of Mr. Khushnud Afzal Mirza, Special Government Pleader to make the statement that the appellants did not want to file objections to the award, learned counsel submits that he had appeared as a Government Pleader for which no specific power of attorney was required and as a counsel statement made by him is binding on his clients. On the question of notice he has submitted that no notice was required to be given in the special circumstances of the present case, because the award dated 16‑12‑1992 had not been filed in pursuance of any fresh application under section 14(2) of the Act. The Court while remitting the earlier award for re‑adjudication of claims Nos, l and 2 had directed vide order dated 14‑7‑1992 that the award should be resubmitted in Court on 17‑10‑1992 for further proceedings. He has further submitted that the objections had not been filed by the appellant despite four opportunities given for that purpose. The learned trial Court, therefore, had no option but to make the award rule of the Court as per dictates of section 17 of the Act read with Article 158 of the First Schedule to the Limitation Act. He has also invited my attention to Annexure ' I' appended with the grounds of the appeal. This is an application made by the Assistant Director, Local Government to the Deputy Commissioner/Project Director, Kasur, for initiating proceedings against Mr. Khushnud Afzal Mirza, Advocate, on the ground that he had been appointed as, a counsel in the arbitration case on behalf of the appellants yet he failed to file the objections through negligence and made a statement on 3‑2‑1993, against the facts that the respondents did not want to file the objections. It is submitted that it clearly shows that Mr. Khushnud Afzal Mirza was a counsel who appeared on behalf of the appellants before the learned trial Court and if he acted negligently and made any statement against their interests then it is a matter between the counsel and the client but the proceedings taken by the learned trial Court cannot be challenged on that score.

5. The more emphatic contention of the learned counsel for the appellants is that notice under section 14(2) of the Act had not beet: served or issued to the appellants after the submission of the award dated 16‑12‑1992. This contention appears to be attractive but on deeper scrutiny of facts it is found to be devoid of force. It is not a case where the award had been filed for the first time in Court in the absence of the parties. The award initially had been filed in 1986. Both the parties joined the proceedings and filed the objections. Evidence in the Court was also recorded and, thereafter vide order dated 14‑7‑1992 award was remitted back to the Arbitrator under section 16 of the Act for re‑adjudication of claims Nos. l and 2 and to resubmit the award in Court on 17‑10‑1992. On this date, the learned counsel for the parties appeared before the learned trial Court but the case was adjourned to await the filing of the award. In the presence of the learned counsel for the parties extension of time for submission of the award in Court was granted vide order dated '19‑11‑1992 The award was received in Court and proceedings thereon were taken in the presence of the learned counsel for the parties on 4‑1‑1993. The case; was adjourned in the presence of the counsel for the parties on 4‑1‑1'993, 9‑1‑1993 and 16‑1‑1993, calling upon the parties to file objections on the award. On 27‑1‑1993, learned counsel for the respondent made the statement that he did not want ‑to file the objections on behalf of the contractor. On IN date, last opportunity was granted to Mr. Khushnud Afzal Mirza, Advocate a for the appellants to file the objections on 3‑2‑1993 but Mr. Khushnud Afzal Mirza, Advocate made a statement on this date that the appellants did not want to file the objections.

6. In view of the factual position narrated above there was hardly any necessity to give notice under section 14(2) of the Act to the parties of the filing of the award. The parties were already before the Court through their counsel when the award was resubmitted in Court on 4‑1‑1993. It was totally unnecessary to serve notices when the parties were duly represented before the Court. In Imam Din v. Allah Rakha and others AIR 1994 Lahore 190 it was held as follows: ‑‑ "The notice of course, need not necessarily be in writing, formally delivered to the parties: it light be given orally if the parties are present in Court personally o by authorised agent at the time of the filing of the award." Similar views were expressed in Valchand v. Gulba AIR 1926 Bom.

312. The observations made by the Bombay High Court are reproduced below: ‑‑ "If the parties or ~heir pleaders bring in an award and ask that it should be filed, and the Court informs the pleaders or the parties that they should file object ns within the time provided by the Limitation Act, namely, ten days t en it seems to me everything that is required by the law has been done, Then it cannot be said that because after giving notice to the parties, or to their pleaders if the parties are not present, and the Court does, not issue further notice to the parties a material irregularity has been committed which entitles this Court to set aside the whole of the proceedings. " In the case of Mehboob Alam v. Vlumtaz Ahmed PLD 1956 Lahore 276, it was held that notice under section 14(21 of the Arbitration Act given to the pleader of the party is a perfectly valid notice.

7. The Hon'ble Supreme Court in case of Ashfaq Ali Qureshi v. Municipal Corporation, Multan ant another 1984 SCMR 597, held as follows: "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 insised 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 the objections, as is in the present case, an insistence on a formal service of notice under Order XXIX would be a mere technicality " The above discussion of law makes it abundantly clear that formal notice in any particular form is not the requirement of section 14(2) of the Arbitration Act. If the information of the filing of the award is imparted to a party through his counsel present in Court, then the require of law is fully complied with and no notice under section 14(2) of the Act at all required to be given to such party.

8. The second contention of the learned counsel for the appellants, that no opportunity to file the objections on the ward was given is equally devoid of force. As already detailed in the preceding para three opportunities were given by the learned trial Court to the parties of were represented by their counsel, to file the objections. On 27‑1‑1993, last opportunity was given to the counsel of the appellants for filing the sections and the case was adjourned to 3‑2‑1993. On that date, however, learned counsel appearing for the appellants made a statement that objections had not to be filed. Therefore, it cannot be said C that the learned trial Court did not give opportunity to the appellants to file the objections on the award

9. The last contention raised by the learned counsel for the appellants may now be attended to. It is submitted that Mr. Khushnud Afzal Mirza, Advocate was not the counsel of the appellants and, therefore, the statement made by him is not binding on the appellants. This contention has to be repelled in view of the material on record. It is admitted position that the appellants were duly represented in the proceedings before the learned trial Court when the award was initially submitted in Court in pursuance of the respondent's application under section 14(2) of the Act. It is also evident from the order sheet that when the award was remitted to the Arbitrator by the learned trial p Court for its resubmission on 17‑10‑1992 vide order dated 14‑7‑1992, learned counsel for the parties were present in Court. It means that the appellants were aware that they had to appear in Court on 17‑10‑1992. The order sheet shows that the counsel for the parties actually appeared on 17‑10‑1992. On subsequent dates also counsel for the parties appeared before the learned trial Court.

10. Attached to the grounds of appeal (Annexure ' I') is the application made by the Assistant Director, Local Government to the Deputy Commissioner/Project Director, Kasur for taking action against Mr. Khushnud Afzal Mirza', Government 'Advocate for not properly prosecuting the Government cases. This application is dated 2‑5‑1993. Relevant paras of this application are reproduced below:‑‑ This is appellants' own document and it shows beyond any shadow of doubt that Mr. Khushnud Afzal Mirza was the counsel of the appellants in the trial Court and he had got a statement recorded on 3‑2‑1993 that objections had not to be filed on behalf of the appellants. Since it is the case of appellants themselves that Mr. Khushnud Afzal Mirza, Advocate was their counsel before the learned trial Court, it cannot be urged on their behalf that they are not bound by the statement made by their counsel.

11. Section 17 of the Arbitration Act reads as follows: ‑‑ "Judgment in terms of award.‑‑Where the Court sees no cause to remit the award or any of the matters referred to arbitration for consideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired. or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with the award. "

12. The requirement of law, therefore, is that under section 17 of the Act the Court has to pronounce judgment according to the award and pass a consequent decree if objections are not filed by the party aggrieved within 30 days period, as prescribed by Article 158 of the First Schedule to the Limitation Act. The parties represented by the counsel are deemed to have the knowledge of the filing of the award in the Court on the day when the award is filed in the presence of the counsel of the parties, as already concluded in the earlier part of the judgment. In the instant case the award was filed to the knowledge of the E counsel of the appellants, in the Court on 4‑1‑1993 but no objections on the award were filed on their behalf despite several opportunities given in that connection by the learned trial Court. Thus the impugned order dated 7‑2‑1993, making the award as rule of the Court is unexceptionable, and so is the consequent decree.

13. For what has been discussed above, the appeal is dismissed with costs. A/A//P.3/L Appeal dismissed