1991 PLP 1438 (MLD)

M.Sadiq Khan for Respondent. Date of hearing: 29th November, 1990. This First Appeal has been filed challenging fire order of the Senior Civil Judge, Ghotki passed on 3-12-1983 whereby he had decreed the suit of plaintiff/appellant in terms of the award which has been made rule of the Court. The facts briefly are that the plaintiff had filled F.C. Suit No.7/77 for recovery of Rs.74,088.38. According to the plaintiff the defendant-company had granted him a contract of external electriction of ten `E' type houses at Daharki accepting his bid of 94,

471. Consequently a contract agreement was entered into between .the ,parties at Karachi on 23-2-1977 according to which all the material equipments, transportation, supervision and. labour required for the work was to be arranged by the plaintiff while steel tubular poles and light fixtures were to be supplied by the defendant alongwith drawings and specifications. It is claimed by the plaintiff that he had collected the material and- also started the work and excavated 14 trenches according to the specifications for fixtures of the poles as the period for completion of work stipulated in the agreement was five months from the date of the said agreement. The plaintiff's grievance, however, is that the defendants did not fulfil .their part of the agreement and at a very, late stage offered the plaintiff a fresh contract to commence the work within one week' and finish the same within a month else the agreement will be terminated. This was not acceptable to the plaintiff who gave a counter offer to undertake the work subject to enhanced payment by 25 per cent of the original amount of contract. The contract of the plaintiff was ultimately terminated and therefore, he filed the suit claiming the abovesaid amount towards the cost of the work and wages of the labour and also damages: The suit was contested and Claim of the plaintiff was resented by the Defendants. However, by an order passed by the trial Court on 9-12-1981 the matter was referred to arbitration as under clause 16 of the agreement. The arbitrators. Were appointed who after proceeding with the arbitration in which both the parties had participated filed the award in Court on 5-6-1983 whereafter the matter was being- adjourned for filing of the objections on the award and ultimately, as no objections were filed suit was decreed in terms of award on 3-10-1983 allowing a sum of Rs. 22,195 to the plaintiff. Being aggrieved the plaintiff has filed this appeal. Mr. Sainiad, the learned counsel for the appellant has assailed the decree of the trial Court on two grounds; firstly that the very reference to the arbitration is bad in law as it was not so contemplated in Article 16 of the agreement and secondly that the appellant was not afforded any opportunity to file objections to the said award as no notice of filing of award was served on the appellant. The learned counsel for appellant has submitted that it is mandatory requirement of law that a notice of award has to be given to the parties calling upon them to file their objections within 30 days which was not done in the present case. He has also made a reference to Article 16 of the agreement which reads as under:-- "Article

16. Settlement of disputes.-- If any dispute or difference of any kind shall arise between the Owner and the Contractor in connection with or arising out of the contract (whether during the progress of works or after their completion); the matter or matters, in dispute be referred to arbitration as hereinafter provided. All differences or disputes shall be settled under the provisions of the Pakistan Arbitration Act of 1940 and the rules made thereunder as amended from time to time, by two arbitrators, one to be nominated by the Owner and the other by the Contractor. The venue of the arbitration shall be in Karachi. Notwithstanding the reference to arbitration the Contractor and Owner shall be obliged to carry out their respective obligations under the Contract." Mr. M. Sadiq Khan, the learned counsel for the respondents repelling above said contention of the learned counsel for appellant has pointed out that the trial Court had passed an order on 9-12-1981 staying the proceedings in the suit and referring, the matter to arbitration in terms of Article 16 of the agreement of contract. It may be observed that the reason that prevailed with the trial Court for passing the said order are that Article 16 clearly mentions that if any dispute arose between the parties during the progress of work or after the completion, the matter will be referred to the arbitration. 1n the instant case-'it is the case of plaintiff himself that the work had started and trenches were dug by him and, therefore, the matter pertained to the work during progress and the trial Court had rightly referred the matter to arbitration and stayed the proceedings of the suit. However, it is further submitted by learned counsel for respondents that this order is appealable under section 39 of the Arbitration Act and there was no appeal filed by the present appellant against the said order. He has further submitted that the record and proceedings, of the arbitration clearly show that the appellant had nominated his own arbitrator, namely,, Mr. Rustam Ali Chaudhry on 26-10-1982 and had fully participated. in, the arbitration proceedings without raising any objection or making any protest at any stage. In these circumstances the appellant is now estopped from challenging the reference made to arbitration. Reliance has been placed on the case of Wapda and another v. Messrs Khan7ada Muhammad Abdul' Haq Khan Khattak and Company PLD 1990 SC 359. wherein their Lordships have observed: "Accordingly, we hold that the appellants are estopped from challenging the award that it is beyond the time and they waived their objection that the arbitration ceased to have jurisdiction to proceed with the arbitration as according to their own statement in the appeal the arbitrator had entered upon the reference on 12-7-1975 and issued notice for 17-1-1976 and they continued to appear before the arbitrator without any objection till the last date when the award was given without objection or demur. If they had raised the objection at the earliest opportunity any of the parties would have applied to the Court for extension of time. Accordingly the award is not invalid on this ground." The Advocate for respondents has also shown from the case diary that after reference to the arbitrators the Court had been granting time for filing of arbitration award which would amount to implied extension of time being granted by trial Court and that parties having participated in arbitration proceedings during such extended period would now be estopped from challenging the same. This position has been held in the above cited case of Wapda and another v. Messrs Khanzada Muhammad Abdul Haq Khan Khatak and Company and also in the case of the Project Director Peoples Programme v. Kh. Muhammad Sarwar 1989 C L C 1039. In view of the above discussion and the fact that the present appellant did not challenge the order of reference passed by the trial Court on 9-12-1981 and had nominated his arbitrator and subsequently had been participating in the arbitration proceedings throughout, the appellant has waived his right of raising any objection thereto and is now estopped from taking such plea. Regarding, the other point taken by the learned counsel for appellant that no notice of filing of award was given to the appellant nor any opportunity was given to him to file his objections, a reference to the case diary of the trial Court would show that after filing of the award on three, occasions the present appellant had moved application for adjournment while once the respondents had moved application for adjournment and on all the four occasions the matter was adjourned for filing of objections to the award. This itself amounts to sufficient notice to the parties that they were required to file the objections as required under the provisions of Arbitration Act. In circumstances of the case it may not be necessary that a formal notice be issued but the Court is competent even to give oral notice. In the present case the advocates for parties have been appearing on the dates and taking dates for filing of the objections. Consequently the parties cannot raise the said objection at this stage. In my above conclusion I am fortified by a decision given by the Honourable Supreme Court in the case of Pakistan through General Manager Pakistan Railways v. Messrs O.M.R. Expert Consultants PLD 1990 SC 800 wherein their Lordships have held that notice can be given even orally by the Court to. the Advocates for the parties in case of arbitration. From the above discussion I am of the view that the trial Court had correctly passed the order decreeing the suit of plaintiff in terms and to the extent of the award. I, therefore, dismiss this appeal. However, there will be no order as to costs. H.B.T./F-164/K Appeal dismissed.