P L D 1984 Peshawar 285 (PLP)

FAIZ MUHAMMAD KHAN; J.‑This first appeal has been filed by (1) Chair man, Railway Board, Lahore, (2), Chief Engineer, Pakistan Railway, Head quarters, Lahore,‑ and (3) Divisional Superintendent, Pakistan Railway, Rawalpindi against the order, dated 13‑7‑1982, of Shaji Rehman, Senior Civil Judge, Peshawar, whereby the objections filed by the appellants herein were rejected and the award, dated 9th May, 1981, filed by Mirza Maqsood Ahmad was made a rule of the Court, in accordance wherewith the judgment was pronounced and decree was ordered to be drawn up in terms of the award. By the decree, the appellants have been directed to pay Rs. 4,92,608 to the respondent as dewatering charges.

2. The facts of the case giving rise to this appeal are as under :‑ The appellants invited on 15‑8‑1969 tenders for the work known arms 'providing temporary diversion and permanent regarding of track in con nection with converting 1 x 40' Girder Bridge (Skew) in 1 x 84‑6, Girder Bridge (Skew) on Mile No. 1043/25‑26 over G. T. Road near Bala Hisar Fort on Rawalpindi‑Peshawar Section'. The respondent had also tendered for the work and his rates being lowest were accepted on 8‑1‑1970. The agreement for the work was drawn up and was signed by the parties on 20‑4‑1970. The respondent completed the work on 30‑4‑1971. It appears that some dispute arose between the parties and the respondent moved on 28‑2‑1976 an application to the Senior Civil Judge, Peshawar for the appointment of an Arbitrator according to the agreed clause of contract agreement. A prayer for rendition of account was also later added in the amended application. The Court, vide its order dated 6‑11‑1976, appointed Ahmad Kamal. Deputy Director Planning, Pakistan Railway as Arbitrator. The disputes referred to the Arbitrator were mentioned in the order as under: (a) Reinforced Cement Concrete Work.‑The foundation of the bridge steel to the extent of 1076 cwt. has been used for R. C. C. work upto 3 feet from the foundation level. Fabrication of heavy steel (2) Reinforced cement concrete are two inter‑linked items and their operation individually and separately is out of question. (b) Cost of Store.‑At the time of inspection of Chief Engineer that instead of Bricks masonary, store measuring should be done. Later on this order was withdrawn and it was ordered that Stores be used in fittings behind abatements. Afterward the store was used for pitching the slopes of blank adjustment. (c) Dewatering.‑Since the water level at the site was very high and, therefore, this item was operated from excavation to foundation. Since the Arbitrator could not submit his award upto 18‑3‑1978 and since he had proceeded abroad, his appointment as Arbitrator was cancelled and instead Arbab Abdus Sattar Khan, Divisional Engineer Railway Headquarters, Lahore was appointed as Arbitrator in the case. The terms of the reference remained the same. He was asked to submit his award before 18‑6‑1978, on which date, having; not submitted the award, his appointment was cancelled and instead Mirza Maqsood Ahmad, retired Superintendent Engineer P. W. D., was appointed as Arbitrator, the terms of reference remaining the same. The Arbitrator submitted his award on 11‑5‑1931, which was not objected to by the respondent but was objected to by the applicants. The objections raised by the appellants on the award.' having been found 'time7barred, were, however, rejected by the Court and. the award having been made rule of the Court, the judgment was pronounced and the decree drawn up in terms of the award, as already mentioned. ‑‑

3. Mr. Amirzada Khan, Advocate‑General appeared on appellants and Mr. Muhammad Nazirullah Khan, Advocate appeared on behalf of the respondent. Their arguments were heard, The record case was also gone through with their assistance.

4. The first contention of the learned counsel for the appellants was that the order made by the learned trial judge dismissing as time‑barred the objection petition filed by the appellants was erroneous and against law. He contended that according to subsection (2) of section 14 of the Arbitration Act (hereinafter referred to as the Act), it is the duty of the Court to give notice to the parties intimating that the award has been filed. He contended that the period of 30 days prescribed under Article 158 of the Limitation Act, for filing objections against the award, starts from the date on which the notice is served on the parties, and until the parties are so served, the limitation under Article 158 does not start against either party, and the question of its running out would not, 'therefore, arise. The learned Advocate‑General further submitted that to the cases as the present one, section 14 (2) of the Act applies by virtue of section 20 thereof. He also argued that even if knowledge of the filing of the award in Court were to be deemed as sufficient for the purposes of section 14 (2) of the Act, yet in this case the award was filed in the Court on 11‑5‑1981, on which date the duly authorised agent of the appellants was not present in Court. The agent of the appellants appeared in Court. on 23‑6‑1981 and this could at the most be the date on which the appellants would be deemed to have got knowledge of the filing of the award in Court and the objections filed by them on 28‑6‑1981 were, therefore, well within time. His further contention in this regard was that although it was mentioned in .the order dated 11‑5‑1981 of the learned trial judge that the counsel for the parties were present, yet there was nothing on the record to show as to who was the counsel who represented the appellants before the Court on that date. According to the learned counsel no power of attorney on behalf of the appellants in favour of any counsel for that date was available on the record. In such circumstances, when there was no duly appointed counsel in Court on behalf of the appellants to receive intimation as to the filing of the award in Court on 11‑5‑1981, the limitation under Article 158 did not run against the appellants from that date. He contended that the limita tion under the said Article would be deemed to have started against the appellants from 23‑6‑1981 when their duly appointed agent appeared in Court and received knowledge of the filing of the award. The objections filed on 28‑6‑1981, according to the learned Advocate General, were filed within the prescribed time limit and the finding of the learned trial‑Judge on this point being erroneous was not maintainable.

5. The learned counsel for‑ the respondent, however, submitted that on 11‑5‑1981, as noted by the learned trial judge, the counsel representing the, appellants was present in Court and on this date the Arbitrator had himself appeared in Court and filed the award. The learned counsel sub mitted that the Court then fixed 28‑5‑1981 for filing objections against the award and this would show that the provisions of subsection (2) of section 14 of the Act were substantially complied with. He contended that the counsel for the appellant having got knowledge of the filing of award in Court, the limitation for filing objections, therefore, started against the appellants from 11‑5‑1981 and the objections having been Died beyond time were rightly rejected by the learned trial judge on that ground. The learned counsel further submitted that the objection now raised by the learned counsel for the appellants that the power‑of‑attorney in favour of the Advocate, who represented the appellants before the learned trial judge on 11‑5‑1981, was not available on the record being an afterthought was without substance. He contended that the order of the learned trial judge holding the objections raised by the appellants as beyond time was perfectly correct and legal.

6. The legal position that under subsection (2) of section 14 of the Act it is the duty of the Court to give noise to the parties intimating the award has been filed in Court cannot be disputed. However, the law does not require that such a notice has to be in writing. It can even be oral or constructive. Where the Arbitrator appears in Court in presence of the counsel for the parties and files his award and the Court adjourns the case to another date for filing objections on the award, as was done in this case, then the parties represented by the counsel would be deemed to have had knowledge of the filing of the award in Court from the date and the limitation under Article 158 would start running against them from the date. The presence of the counsel for the appellants in Court in this ca was noted in order dated 11‑5‑1981 of the learned trial Court. This was the date on which the Arbitrator had personally appeared in Court and filed hi award. It was also noted in this order that although the counsel for defendants (appellants) was ready to pay his share of Arbitrator's fee but since the authorised agent of the defendants (appellants) was Dot present, the Court directed the plaintiff (respondent) to pay the share of fee of the defendants (appellants) to the Arbitrator. It was also noted in this order that the case was adjourned to 28‑5‑1981 for tiling objections against the award. We are, therefore, of the view that the appellants got knowledge of the filing of the award in Court through their counsel on 11‑5‑1981 an a specific date, falling well within one month, was also given to them for filing objections against the award, which appears not to have been file on that date or before. On 28‑5‑1981 the Presiding Officer was not present and the reader to the Court posted the case for 23‑6‑1981. On this date the authorised agent of the appellants (Ikramul Haq, Litigation Inspector) has present in Court who informed the Court that on getting free the counsel for the appellants would inspect the award and after such inspection they would decide whether or not to file objections. It was further noted in the order of the Court dated 23‑6‑1981 that the appellants were made to know that since the objections could be filed within one month and the Court had no power to extend the time, the defendants (appellants would be filing objections at their own risk on 28‑6‑1981, on which date the objections were actually filed by them. This resume of factual position recorded in order sheets would clearly show that having obtained know ledge of the filing of award in Court on 11‑5‑1981, the appellants failed to file objections within one month of the said date. As to the objection now raised by the learned counsel for the appellants that since no power‑of attorney was available on the record to show who was the counsel who represented the appellants before the Court on 11‑5‑1981 and that for the reason there was no proper representation of the appellants before the Court, we can just say that it was without substance. The record would show that these proceedings were initiated by the respondent through a petition made in Court on 28‑2‑1976, which was treated as a suit, and on 11‑5‑1976 for the first time the attendance of the counsel for the defendants (appellants) was marked by the Court. On that date 4he counsel bad requested for 'adjournment for filing the written statement. Since then, we have noticed from the record, on almost every date the attendance of the counsel for the defendants (appellants) in Court was marked by the Court. Even on 23‑6‑1981 the recognised agent of the defendants (appellants) had requested the Court, a noted in the order of the Court, that the counsel representing them would inspect the award and they would then decide about filing of objection. On subsequent dates also the presence of counsel for the defendants (appellants) was noted by the Court in different order sheets. This would mean that there was a duly appointed Advocate who represented the appellants before trial Court ever since 11‑5‑1976. The/C power‑of‑attorney in his favour appears to have been misplaced. Mr. Muhammad Latif, Advocate came to represent the (appellants) only after 15‑11‑1981, as was apparent from the orders of the Court. The special power‑of‑attorney in his favour was, however, dated 27‑1‑1982. Further, not any other act or appearance by the Advocate on any other date, except on 11‑5‑1981, was disowned by the appellants. This objec tion of the learned counsel for the appellants was, therefore, without substances.

7. The next point argued by the learned counsel for the appellants was that the award made by the Arbitrator being void on the face of it could neither be acted upon nor made a rule of the Court. For that reason, the learned counsel urged, it was legally not required to be set aside and because it was legally not required to be set aside, the application of Article 158 of the Limitation Act was out of question. The learned counsel further argued that since the Arbitrator awarded the rate which was not claimed by the respondent, the award was, therefore, void on the face of it.

8. We have gone through the material placed by the parties before the Arbitrator as also the award made by him. It appears that four claims were placed before .the Arbitrator for adjudication, out of which he allowed one claim to the respondent relating to dewatering charges. It is further mentioned at the last. page of the award that the claim of the respondent (Contractor) relating to this item was Rs. 14,78,

040. It is also mentioned that the volume of dewatering, according to the calculation made in the last but one paragraph of the award, was 70,000 Cft. approximately. Hut since the respondent (Contractor) had claimed 40,000 Cft. of dewatering earlier in his letter No. nil, dated 9‑10‑1973, the Arbitrator allowed that much volume to the respondent (Contractor), which was less than what was claimed. This would show that the Arbitrator did not go beyond the claim of the respondent (Contractor). He had r4ther allowed muchless than what was claimed by him. In the same connection the learned counsel for the appellants argued that the rate of dewatering allowed by the Arbitrator was wrong as according to the contract between the parties the rate to be allowed was Rs. 10.50 per thousand Cft. and not Rs. 10.90 per hundred Cft. as was allowed by the Arbitrator. For that. reason, the learned counsel contended, the award was void on the face of it and the question of limitation for getting it set aside, therefore, did not arise. In support of this argument the learned counsel invited our attention to the copy of the agreement appearing at pages 16‑19 of the file and Annexure 'A' at pages 25‑27 of the file. The learned counsel contended that since according to paragraph I of the contract the Schedule of Rates Volume I, Part II (Specification for Execution of Works, 1967), as modified by correction slips up‑to date, was agreed upon by the parties and since item No. 60 in Annexure 'A' to the contract relating to item 'unwatering by hand' had already been amended before the signing of the contract docu ment whereby the charges specified therein were Rs. 10.90 per thousand Cft., the Arbitrator could not have allowed rate for this item at Rs. 10.90 per hundred Cft. The learned counsel contended that the amended item 60 and Annexure 'A' were before the Arbitrator and since he did not act in accordance therewith, the award was void on the face of it.

9. The learned counsel for the respondent, however, did not accept this situation. His contention was that Annexure 'A' hereinbefore referred to had become part of the contract and the amendment made in that Annexure did not exist at the time when the contract document, including Annexure 'A', was signed by the parties, and that the change in the rate appears to have been subsequently made by the appellant herein to which the respondent had never agreed. The learned counsel further submitted that the copy of Annexure 'A', duly signed, given to the respondent did not contain any such amendment and in that copy, which was also to be treated as one of the originals, the rate of 'unwatering by hand' was Rs. 10.90 per hundred Cft. which would mean that this was the rate which was agreed upon by the parties. The learned counsel further submitted that the same could not have been changed by any unilateral act of the appellants, without the consent of the respondent, and that nothing was produced before the Arbitrator to show that the respondent was a consenting party to such a change. He contended that the Arbitrator has dealt with this point in his award, which was not void on the face of it, and being valid could only be objected to within the limitation prescribed under Article 158 of the Limitation Act, which was not done. According to the learned counsel, the order of the learned lower Court has perfectly justified.

10. We have noticed from the record that the change made in item 60 of Annexure 'A', converting the rate from Rs. 10.90 per hundred Cft. to Rs. 10.90 per thousand Cft. was not signed by either party. This amend ment was also not present at the time when the' contract document was signed by the parties, or otherwise it would have also appeared in the copy of Annexure 'A', which has also to be treated as one of the onginals, available with the respondent (Contractor) who produced it in Court before , . us. There was no other evidence available on the record to show that this change in the rate was agreed upon by the respondent.' We have also noted that the Arbitrator has in his award dealt with this point in details and according to us, in correct manner. The award was, therefore, not void on the face of it, as it was based on whatever material was produced by the parties before the Arbitrator. This argument of the learned counsel for the appellants also has no merit.

11. No other point was urged by the learned counsel for the appel lants.

12. Since the appellants had filed objections against the award beyond the statutory period of 30 days, their objections were rightly dismissed by the learned trial judge. There being no merit in this appeal, it is hereby dismissed with costs. M. Z. M. Appeal dismissed.