2004 PLP 626 (YLR)
SARDAR MUHAMMAD — Petitioner Versus Mst. HASMAT BIBI alias HASMATEE and 3 others — Respondents
| Citation | 2004 PLP 626 (YLR) |
| Forum / Court | Lahore |
| Bench Members | Muhammad Akhtar Shabbir, J |
| Parties | SARDAR MUHAMMAD — Petitioner Versus Mst. HASMAT BIBI alias HASMATEE and 3 others — Respondents |
| Primary Law | Arbitration Act (X of 1940) |
Q1: What are the key laws and sections cited in 2004 PLP 626 (YLR)?
This judgment primarily cites: Arbitration Act (X of 1940) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2004 PLP 626 (YLR)?
The case was heard and decided by the Lahore bench comprising: Muhammad Akhtar Shabbir, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2004 PLP 626 (YLR) (SARDAR MUHAMMAD — Petitioner Versus Mst. HASMAT BIBI alias HASMATEE and 3 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Masood Abid Naqvi for Petitioner.
- Malik Abdul Sattar Chughtai for Respondents.
Headnotes / Summary
Ss. 14, 17 & 30
Civil Procedure Code (V of 1908), S.12(2)
Constitution of Pakistan (1973), Art.199
Constitutional petition
Award, setting aside of --Plea of fraud and misrepresentation
Application under S.12(2), C. P.C.
Maintainability-- Predecessor-in-interest of respondents admitted the award in the Trial Court and the award was made rule of the Court-- After death of their predecessor-in-interest, respondents assailed the award on the plea of fraud and misrepresentation-- Application under S.12(2), C. P. C. filed by the respondents was dismissed by the Trial Court but Lower Appellate Court, in exercise of revisional jurisdiction, allowed the application and the award was set aside
Where award was obtained by fraud or misrepresentation, the parties affected thereby could challenge the same by application under Ss.30 or 33 of Arbitration Act, 1940 but application under S.12 (2), C. P. C. was not maintainable to challenge such award
Lower Appellate Court failed to attend such legal aspect of the case and had exceeded jurisdiction vested in it
Judgment passed by the Lower Appellate Court was illegal and the same was set aside
Petition was allowed accordingly. Messrs Combined Enterprises v. Water and Power Development Authority, Lahore PLD 1988 SC 39 and Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197 ref.
Judgment & Decree
(2) Whether the petitioner has no cause of action or locus standi? OPP (3) Whether petition is not maintainable in the present form? OPD (4) Whether the petitioners are estopped to file the petition? ' OPD (5) Whether petition is barred by tune? OPR (6) Whether petition is defective for non-joinder of necessary parties? If so, its effect? OPR (7) Relief
3. After recording and appreciating evidence of the parties, vide its judgment, the trial Court dismissed the application filed by the petitioner under section 12(2), C. P. C.
4. Feeling aggrieved thereby Mst. Hashmat Bibi and others preferred a revision petition which came up for hearing before the Additional District Judge, Sargodha, who, vide, his judgment and decree dated 19-5--1997 accepted the appeal and remanded the case to the trial Court. After remand the learned Civil Judge, Sargodha/trial Court vide, his order dated 14-10-1991 dismissed- the petition once again. Feeling aggrieved thereby. Mst. Hashmat Bibi petitioner preferred a revision petition before the Additional District Judge, Sargodha, who vide, his judgment and decree dated 11-12-1999 accepted the revision petition, set aside the judgment of the trial Court and also accepted the application under section 12(2), C.P.C. as a result of which set aside the judgment and decree dated 2-12-1985 passed by the Court making the award dated 1-12-1985 as a rule of the Court.
5. Learned counsel for the petitioner contended that the award under Arbitration Act cannot be challenged under section 12(2), C.P.C. and the vires of the same can be assailed under sections 30 and 33- of the Arbitration Act. Further contended that Pir Bakhsh, a party of award and judgment and decree dated 2-12-1985 during his lifetime did not challenge the same and respondent No.1 and other heirs of the deceased were not competent to get it set aside through the application under section 12(2), C.P.C. Further contended that the provisions of C.P.C. are excluded and not applicable to the Arbitration proceedings before the Court. Reliance has been placed to the case of Messrs Combined Enterprises v. Water and Power Development Authority, Lahore PLD 1988 Supreme Court
39. The learned counsel for the respondents when confronted with the above legal aspect of the case, could not respond.
6. The appreciation under sections 14/ 17 of the Arbitration Act had been filed by Mst. Naseem Akhtar against Pir Bakhsh and Faqir Muhammad on 1-12-1985. Pir Bakhsh filed a consenting written statement in the Court on 2-12-1985 and also his statement was recorded by the Court on the same day which is reproduced as under:-- The above statement was thumb marked by Pir Bakhsh and also signed by his counsel. The statement of Faqir Muhammad, Arbitrator had also been recorded, who admitted the 'award' announced by him (Exh.C.2) and on the basis of above-referred material the Court had made the award as rule of Court and passed a decree in favour of Mst. Naseem Akhtar.
7. Pir Bakhsh, party of the award, dic not file any application after the decree and after his death Mst. Zaineb Bibi and Mst. Hashmat Bibi filed applications under section 12(2), C.P.C. for setting aside the decree. From the contents of the application filed by Mst. Hashmat Bibi no case under section 12(2), C.P.C. is constituted and the ingredients of the fraud and mis representation are missing in the application.
8. Where 'award' was obtained by fraud or misrepresentation parties affected thereby could challenge the same either by an application under section 30 or 33 of the Arbitration Act, 1940 and application under section 12(2), C.P.C. would not be maintainable to challenge such award. Reference in this context can be placed to the cases of Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 Supreme Court 197 and Messers Combined Enterprises (supra).
9. The above discussed legal aspect of the case has not been attended to by the learned lower revisional Court/respondent No.5 who exceeded the jurisdiction so vested in it. Therefore, the impugnea judgment dated 11-12-1999 passed by respondent No-5-Additional District Judge is declared to have been passed illegally and of no legal effect. As a result of which this writ petition is accepted. However, there shall be no orders as to costs. The respondents may avail of the alternate remedy available to them under the law. M.H./S-765/L Petition allowed.