1986 PLP 2630 (CLC)

In view of the controversy raised as above, it would be relevant to refer here briefly to the facts leading to the filing of the present application.

1. The respondent No. 1/Trading Corporation of Pakistan invited tenders on 15th September,. 1984 for the sale of bagged white sugar of 1981‑82 and 1982‑83 seasons lying in Sugar Mills and P. R. Centres in Punjab and Sind. The petitioner submitted tender for the following quantities of sugar lying at the following two mills in Punjab. Name of Mill Quantity Sale price (1) Gojra Samundri Sugar Mill 3,833 M/Ton Rs.6,850 PMT (2) Rahwali Sugar Mill 1,124.00 M/Ton Rs.6,450 PMT The tender submitted by the petitioner was accepted by the respondent No. 1 through the respondent No. 2, i.e. the Government of Punjab. The agreement, dated 30th September, 1984 inter alia provided for the settlement of disputes between the parties through arbitration. Clause (J) appearing at page 4 of the Annexure 'A' to the counter -affidavit filed by Mr. Abdul Rahim, Deputy Manager of the Trading Corporation of Pakistan, Karachi being relevant is produced below:‑ "(J) All disputes, differences of questions at any time between the parties arising out of the contract or in any way connected therewith shall be referred to the arbitration of a single arbitrator acceptable to the sellers who shall be appointed by the Government. The arbitration shall be held at Karachi in accordance with the Arbitration Act, 1940, and any statutory modification of enactment thereof for the ' me being in force. Award of the Arbitration shall be condition precedent to any other action under the law." 2640 residing at Islamabad. It has also been mentioned in the written statement that rent application is barred by section 14 of the Sind Rented Premises Ordinance as appellant is in occupation of two houses at Islamabad and Karachi respectively. On the pleadings of the parties the Rent Controller framed the following issues: (1) Whether the appellant requires case premises for her personal use and his children in good faith? (2) What should the order be? The Rent Controller dismissed both the applications by two separate orders, dated 30th May, 1984. In both the rent cases one Amanullah Khan the attorney of appellant has been examined. Where respondents Issa Khan and Bashir Ahmad examined themselves.

4. Mr. Sami Ahmad Tirmizy, Advocate appearing for the appellant contended that Mst. Fatima Bi is widow of late T. Peer Khan who died and she has got a share in the house in question, therefore, she being widow and aged about 74 years is entitled to have a house for her bona fide personal requirement and can get benefit of section 14 of Sind Rented Premises Ordinance, 1979. He has referred to the cases reported in 1984 C L C 2343, 1983 C L C 468, 1981 S C M R 193 and 1986 C L C

354. Mr. Ch. Muhammad Suleman appearing for the respondent contended that Mst. Fatima Bi is not absolute owner of the house and she is already residing with her son at Islamabad, therefore, she cannot claim possession under section 14 of the Ordinance. He has further submitted that property has not yet been mutated in the name of the appellant. He has argued that in such circumstances Supreme Court has granted leave to appeal in case of Muhammad Ali v. Mst. Hameeda Begum in Civil Petition No. K320 of 1983. So as to determine if bona fide requirement could be considered in ease which fall under section 14 of the Ordinance.

5. Amanullah attorney of the appellant in his evidence stated that appellant is widow of late T. Peer Khan, who died at Islamabad on 30‑5‑1981. He has produced photostat copy of death certificate as Exh.A.2. He stated that respondents were duly served with notices under sections 18 and 14 of the Ordinance, intimating them about the change of ownership by inheritance and asking them to hand over vacant possession of the demised premises. He has also produced copy of P.T.10 of House No.A/336, Block 1, Gulshane Iqbal, Karachi and stated that appellant is not the owner of the house and also she does not own property at Islamabad. He further stated in his evidence that appellant is widow and 74 years old. He in his cross‑examination stated that a son of appellant is running his business of Building Maintenance at Islamabad and Karachi and has also business at Hyderabad. He has deposed that son of appellant namely Jameel Ahmad used to receive rent from the tenants from 1969 and he rented out the case premises to the tenants. He has also admitted that other son of appellant is married and is residing at Islamabad alongwith his family, and case property is still in the name of her husband. He has also admitted that appellant is so old that she needs help from atanger even to move in her house. The respondent in their evidence stated that appellants' sons are not doing any business at Karachi and late T. Peer Khan had According to the petitioner in lifting the contracted sugar, difficulties were faced by him since the stocks of contracted sugar were lying pledged with the banks and that on the strength of the delivery order issued by the respondent No.2, the concerned mills could not deliver the quantities under the delivery order in time due to the procedural difficulties on account of the charge/lien of the bank on the contracted stocks of sugar. The difficulties faced by the petitioner due to the alleged acts and omissions on the part of the sellers in delivery of the contracted goods/sugar are reflected in the correspondence exchanged between the parties. Perusal of the copies of some of the letter produced clearly show that disputes and differences do exist between the parties giving rise to claims which have arisen out of and are connected with the contract between the parties. The claims thus arising the petitioner prays be adjudicated upon by the reference to arbitration, a forum chosen by the parties of their own choice provided in the contract itself. I may, however, refer here to the case of Jamia Industries Limited v . Pakistan Refinery P L D 1976 Kar. 644 to which reference was made by Mr. S. Hamid Hussain in support of his contention that existence of a difference of dispute is an essential condition for making a reference to the arbitrator and to the maintainability of application under section 20 of the Arbitration Act. With the principle of law laid down in the cited case I am in respectful agreement but I do not find any reason to agree with the learned counsel for the respondents. The parties and different existing between the parties and the claims/ counter‑claims against each other, are of substantial nature which arise out of and are covered by the arbitration clause. It is, however, for the arbitrator, adjudicate upon the disputes on the merits and it is not for the Court to consider any question pertaining to the dispute raised or to suggest manner of decision thereof.

3. For the reasons stated above, finding that no sufficient cause has been shown as to why the agreement should not be filed, this application succeeds. The arbitration agreement accordingly is ordered to be filed.

4. At the conclusion of the order passed as above Mr. S. Hamid Hussain, the learned counsel who also appears for the Government of Punjab, stated that Mr. Justice (Rtd.) Jaffar Naeem be appointed as the sole arbitrator and that his appointment as the sole arbitrator is acceptable both to the Government of Punjab as well as the Trading Corporation of Pakistan. Mr. G.M. Ibrahim, Advocate for the petitioner has also no objection to the appointment of the sole arbitrator as stated by Mr. S. Hamid Hussain. I accordingly appoint Mr. Justice (Rtd.) Jaffar Naeem as the Sole Arbitrator who would proceed with the arbitration in accordance with the provisions of the Arbitration Act, 1940. M. Y. H. Application accepted.