2002 PLP 2479 (YLR)

2. The suit was contested and the agreement to sell or the payment of any sale considered was totally denied. On 19‑10‑1987 both the parties agreed that the matter 'be referred to Sardar Hajj Illahi Bux as a sole Referee and that both the parties shall abide by the decision of the said referee. Consequently vide order, dated 19‑10‑1987 the learned trial Court appointed the said Referee and fixed 29‑10‑1987 for his decision. On 26‑10‑1987 the petitioner submitted an application, wherein, the appointment of the Referee was sought to be revoked. The report of the Referee, dated 31‑10‑1987 was placed on the record. According to this report which was exhibited as Exh. C‑1, the suit of the petitioner was found to be baseless. Finally relying upon the said report, the trial Court dismissed the suit of the petitioner vide judgment and decree, dated 27‑1‑1988.

3. Feeling aggrieved, the petitioner preferred an appeal which was dismissed vide judgment and decree, dated 19‑10‑1989. The learned Appellate Court found that the petitioner had himself made a statement before the Court on 19‑10‑1987 that the matter be referred to the named Referee and that he was thus under an obligation to accept the decision made by the Referee nominated by him. It was also held that the petitioner was not competent to seek revocation of the said agreement made by him.

4. S.M. Anwar Shah, Advocate for the petitioner has challenged the findings of the lower Courts on two grounds. He firstly contended that the report of the so‑called Referee does not qualify to be an admission under Article 33 of the Qanun‑e‑Shahadat Order, 1984 as in a civil dispute of the present nature it is not for a third party not having any personal knowledge to decide the controversy between the parties. He next contended that despite the statement made by him and the respondent on 19‑10‑1987, wherein, they agreed for the appointment of a Referee he had moved an application on 26‑10‑1987 for the revocation of the same before any, steps had been taken by the Referee. In support of this contention reference was made to the case of Sher Zaman Khan v. Noor Zaman Khan and another (PLD 1977 Lah. 672), wherein a party to the agreement for appointment of a Referee was allowed to resile from the agreement. He also placed reliance on a Division Bench judgment of this Court in the case of Rao Inayat Ali v. Diwan Ali (2000 CLC 27), wherein, it was held that a decision to be bound by the statement of a Referee was outcome of a contract and parties were at liberty to revoke it before it was acted upon.

5. On the other hand, Chaudhary Masood Ahmed Bajwa, Advocate for the respondent contended that the Referee was appointed by the parties themselves for resolving the dispute between them. The referee had conducted the proceedings in a most solemn manner and that the petitioner had no justifiable cause to resile from the said agreement upon vague allegation. He also contended that mere fact that the Referee conducted some inquiries of his own would not denude the Referee of his status. Reference was made to the case of Muhammad Arif and others v. Farrukh Hafeez (KLR 2000 Civil Cases 387).

6. Arguments have been heard: Record perused.

7. In order to appreciate the respective contentions of both the parties, it is appropriate to appreciate the concept of a Referee.

8. In the scheme of Qanun‑e‑Shahadat Order, 1984, Articles 30 to 36 deal with the subject of admissions. Article 30 defines admission as under:‑‑‑ "An admission is a statement, oral or documentary, which suggests any interference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances, hereinafter mentioned. "

9. This definition of admission is not exhaustive inasmuch as it does not define "persons" whose statements amount to admissions, nor the circumstances under which a statement must be made so that it amounts to an admission. Such persons and circumstances are elaborated in Articles 31, 32 and

33. Article 31 deals with the admission made by a party to a proceeding or by his agent. The circumstances under which statements made by these persons are admissions are enumerated in the said Article. Similarly, Article 32 deals with the admission by persons whose position must be proved as against party to the suit. The conditions and circumstances under which such statements are considered as admissions is specified therein. The relevant Article attracted in the circumstances of the present case is Article 33 which is reproduced as under:‑‑ "Admission by persons expressly referred by party to suit.‑‑ Statements made by persons to whom a party to the suit has expressly referred for information in reference to matter in dispute are admissions. "

10. Thus admission may be made by party to the proceedings himself or by his agent which shall be binding upon the principal. Certain other statements can also be conferred with the status of admissions so as to conclusively bind the parties. For obvious reasons, for a statement to bind a party as amounting to his admission, it shall have to be construed strictly. A perusal of the provisions of Article 33 would show that the reference contemplated, in this Article is for receiving information in reference to matter in dispute upon express understanding by the parties in order to bind them. The nature of such information must depend upon the implicit knowledge of the Referee. In such a case a party making reference either substitutes his own knowledge by that of some other person or seeks to supplement his own knowledge by that of the Referee: The illustration to Article 33 is quite expressive. "The question is, whether a horse sold by A to B is sound. A says to B; "Go and ask C. C. knows all about it. C's statement is an admission. "

11. In other words the reference under Article 33 is not a Reference to an individual or even a body of persons but is in fact a reference to obtain such further information which a party may be lacking‑in.

12. The controversy in the present case, as in all such cases is contentions. While the petitioner/plaintiff is alleging an agreement to sell, a copy of which has also been placed on record, the respondent is denying the execution of such a document. This controversy being a disputed question of fact cannot be resolved otherwise than through a proper trial by the civil Court. A reference to an outside party to decide matters in dispute in a suit cannot be termed as a reference to that party for information. In this view of the matter it is held that the, agreement to refer such a civil dispute to a third party does not fall within the ambit of Article 33 of the Qanun‑e‑Shahadat Order, 1984 and the statement of such a "Referee" cannot be termed as admission of a party.

13. Such procedure of referring a civil dispute raised through a suit before a civil Court to the decision of a so called Referee also offends against the principle that no Court shall delegate its powers to a third person. By adopting such procedure a civil Court is virtually delegating its judicial powers to private individuals to resolve the dispute of parties before it. Such procedure cannot be approved.

14. In view of the above discussion, the judgment and decree of the Appellate Court dated 19‑10‑1989 as also the judgment and decree of the trial Court, dated 27‑1‑1988 suffer from irregular exercise of jurisdiction and are set aside. Accepting this Civil Revision, the case is remanded to the trial Court to frame proper issues and decide the matter afresh in accordance with law. Parties to bear their own costs. Revision allowed. Q.M.H./M.A.K./C‑167/L