1984 PLP 463 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑Leave was granted against the judgment and decree of a learned Division Bench of Peshawar High Court, dated 27‑11‑1978, vide order of this Court, dated 10‑6‑1979.

2. The respondent, according to the appellant's case, is a contractor and was awarded a contract for execution of water supply scheme, Thathi Nasrati. Tehsil Karak, District Kohat. The respondent laid a claim in connec tion with some payment due to him under the contract and in this behalf he moved an application under section 20 of the, Arbitration Act is the Court of the Senior Civil Judge, Peshawar, for reference of the dispute to arbitration in accordance with clause 25 of the Contract Agreement. Accordingly the Court referred the dispute to arbitration. Mr. Ataur Rahman Khan, Superintending Engineer who, in due course, made an award on 22‑12‑1970 which was made a rule of the Court for the recovery of Rs. 9,441/50 in favour of the respondent against the appellant. Later on, the respondent applied for a review of that order and award under rule (1) of section 47 and sec tion 151, C. P. C. The appellant resisted the application. Nonetheless on 21‑6‑1971 the learned Senior Civil Judge, Peshawar accepted the review application set aside the award already made between the parties and referred the dispute for arbitration afresh by Mr. Bashir Hussain, S. D. O. Mr. Bashir Hussain gave his award for the recovery of Rs. 98,737/33 against the appellant which was filed in the Court on 17-11‑1976. The appellant filed objections against the award which were rejected by the Court and the award was made rule of the Court for the recovery of the aforesaid amount against the appellant. Regular First Appeal filed by the appellant before a Division Bench of the Peshawar High Court was dismissed vide the impugned judgment.

3. Learned counsel for the appellant contended that in accordance with arbitration clause 25 the dispute or difference between the parties had to be referred to arbitration by an officer not below the rank of Superintending Engineer and as such the appointment of Mr. Bashir Hussain, S. D. O. by the learned civil Court was made without any lawful authority and secondly that the award was void ab initio.

4. We have beard the learned counsel. It appears that the objection to the appointment of Mr. Bashir Hussain, S. D. O. was raised on behalf of the appellant at the earliest and repeatedly. On going through the record we find an application on page 27 of the paper‑book wherein the appellant have objected to the appointment of S. D. O. as an arbitrator and in another similar application, dated 11‑5‑1973, placed on page 26 of the paper‑book the appellant reiterated his stand and objected to the appointment as arbitrator of any officer below the rank of Superintending Engineer. Thus, the High Court was not justified in observing that there is nothing on the record to show that the appellant had objected to the appointment of the said S. D. O. as arbitrator. This observation appears to be based on misapprehension of facts and non‑reading of the record. Relevant portion of paragraph 5 of the impugned judgment of the learned Bench of the High Court reads:‑ "Mr. Bashir Hussain a Civil Engineer, who was working as S. D. O in the department of the appellant was appointed as the arbitrator. There is nothing on the record to show that the appellant objected to his appointment, on the other hand the objections to the award, reproduced here above reveal that therein no objection was raised about the competency of Mr. Bashir Hussain to act as an arbitrator in the dispute." We, therefore, remand the case to the learned High Court for decision afresh on the points raised. M. Z. M Case remanded.