P L D 1959 (W (PLP)

KAIKAUS, J.‑The main question involved in this appeal is as to the enforceability of an award made in England between a Pakistani firm and an English Company, in the Pakistan Courts, under the provisions of the Arbitration (Protocol and Convention) Act, 1937. The appellants before us are M/s. Barlas Bros. (Karachi) & Co., a firm carrying on business of export of sheep casings at Karachi. The respondents M/s. Yangtze (London) are a Limited company carrying on business as of import of sheep casings with an office in London. In the years 1948 to 1950 a number of contracts were entered into between the parties for sale and purchase of sheep casings. The procedure adopted was that the contracts were entered into by cables ; the respondents would then send 1printed contract forms in duplicate to the appellants who would return one of the forms after signing it. Disputes arose between the parties with respect to six contracts i.e., Nos. 1182, 1192, 1194, 1197, 1202 and 1205. The contract forms contained an arbitration clause by virtue of which all disputes were to be referred to the London Court of Arbitration. This tribunal is called a Court but it is in fact a panel of arbitrators. The respondents referred the disputes relating to all the six contracts mentioned above to the London Court of Arbitration on the 12th April 1951. Out of the six contract forms only three had been signed by the appellants though it is not now denied that the remaining contracts too had been entered into by means of cables. The Court of Arbitration, by letter dated 2nd May 1951, informed the appellants that there had been a reference to the Court of Arbitration by the respondents with respect to the six contracts mentioned above, and asked for the preliminary comments of the appellants. The appellants replied on the 15th of May 1951 saying (1) that to their knowledge they had never agreed to any arbitration, (2) that they did not know what was the dispute that was referred and they should be provided with a copy of the plaint lodged by the respondents and (3) that they should be provides.'. with photo static copies of the confirmations of the contracts in order that they may see whether such confirmations bear their signatures. The Court of Arbitration replied saying (1) that in order to explain what was the dispute they were forwarding a c py of the letter already sent by the respondents to the appellants, (2) that photostatic copies of the three signed contracts were being sent and (3) that in respect of the other three contracts the Court would decide as to whether it has jurisdiction to enter tain the proceedings for arbitration after receiving a statement from the respondents. No reply was sent by the appellants to this letter. After a further statement by the respondents as required by the Court of Arbitration the Court appointed Mr; Edward 1‑I. Wall as arbitrator on the 21st of November 1951. On the 22nd of November 1951 the Court of Arbitration sent a registered letter to the appellants informed them of the appointment of the arbitrator and requiring them to submit a statement in defence to the arbitrator. This letter was returned as refused. On the 18th of January 1952 another letter was sent by the Court of Arbitration to the appellants saying that if there was difficulty in adducing oral evidence would the appellants agree to a decision on documents. This registered letter was similarly returned as refused. On the 7th of February 1952 the Registrar of (he Court of Arbitration cabled. to the appellants fixing 28th February 1952 as the date of hearing before the arbitrator for the decision of the question whether he had jurisdiction. On the 15th of February 1952 the appellants sent a reply to the effect that‑ the three signed agreements had become null and void because Clause 9 of the agreement which necessitated the opening of a letter of credit in the name of the sellers had not been complied with. Nothing was said in this letter with respect to the three unsigned contracts. On 22nd February 1952 there was a cable from the Court of Arbitration in reply to this letter in which it was stated that the question of jurisdiction would be decided by the arbitrator. On the 28th of February 1952 the appellants were absent and the case was adjourned to 18th March 1952. Information as to the adjournment was given by cable to the appellants on the 28th February 1952. On the 18th of March 1952 proceedings were taken ex parte against the appellants and on the 18th of April 1952 an award was signed. On 23rd April 1952 the appellants were informed of the award. By the award the arbitrator granted a decree for 11,417‑13‑7 and at the same time ordered the appellants to pay 378 as costs of the arbitration. On the 12th July 1952 the respondents put in tile application out of which this appeal arises in the Chief Court of Sind under section 5 of the Arbitration (Protocol and Convention) Act, 1937 for the award being filed and a decree passed thereon. The appellants appeared to oppose the application and raised the following objections: (1) The Arbitration (Protocol and Convention) Act,, 1937 did not apply as Pakistan was not a signatory to the Protocol and the Act was applicable only to such signatories. (2) With respect to the three unsigned contracts there was no arbitration agreement between the parties. (3) The arbitrator had taken an erroneous view of law. (4) Some conclusions of fact of arbitrator were based on no evidence. Muhammad Bakhsh, J. rejected all those contentions anti ordered the award to be filed In this appeal the first question raised is that the Arbitration (Protocol and Convention) Act, 1937 is not applicable to Pakistan at all and it is at least not applicable so far as awards delivered in England are concerned in order that these objections ma) be appreciated reference has to be made in some detail to the provisions of this Act. Some time in the beginning of 1937 number of States entered, through the League of Nations, into a Protocol for recognizing the validity of arbitration clauses in agreements between parties who were subject to the jurisdiction of the different contracting States, and for giving effect to awards delivered on the basis of such arbitration clauses. India was one of the signatories to this Protocol and the Arbitration (Protocol and Convention) Act, 1937 was passed in order to give effect to the Protocol. The Preamble to this Act says: `Whereas India was a State signatory to the Protocol on Arbitration Clauses set forth in the first Schedule to the Convention on the Execution of foreign Arbitral Awards set forth in the Second Schedule, subject in each case to a reserva tion of the right to limit its obligations in respect thereof to contracts which are considered as commercial under the law in force in the Provinces and the Capital of the Federation And whereas it is expedient, for the purpose of giving effect to the said Protocol and of enabling the said Convention to become operative in the Provinces and the Capital of the Federation, to make certain further provisions respecting the law of arbitration. It is hereby enacted as follows. The awards to which this Act was to apply are defined in section 2 which runs: "

2. In this Act "Foreign award" means an award on differ ences relating to matters considered as commercial under the law in force in the Provinces and the Capital of the Federa tion, made after the 28th day of July 1924,‑ (a) in pursuance of an agreement for arbitration to which the Protocol set forth in the First Schedule applies, and (b) between persons of whom one is subject to the jurisdiction of some one of such Powers as the Central Government, being satisfied that reciprocal provisions have been made, may, by notification in the Official Gazette, declare to be parties to the Convention set forth in the Second Schedule, and of whom the other is subject to the jurisdiction of some other of the Powers aforesaid, and (c) in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made, may, by like notifications, declare to be territories to which the said Convention applies, and for the purposes of this Act an award shall not be deemed to be final if any proceedings for the purpose of contesting the validity of the award are pending in the country in which it was made." The next relevant provision is section 4 which provides for effect being given to foreign awards. It runs 4. (1) A foreign award shall, subject to the provisions of this Act, be enforceable in the Provinces and the Capital of the Federation as if it were an award made on a matter referred to arbitration in the Provinces and the Capital of the Federation. (2) Any foreign award which would be enforceable under this Act shall be treated as binding for all purposes on the persons as between whom it was made, and may accordingly be relied on by any of those persons by way of defence set off or otherwise in any legal proceedings in the Provinces and the Capital of the Federation, and any references in this Act to enforcing a foreign award shall be construed as including references to relying on an award." Section 7 of the Act states some conditions for the enforcement of the foreign awards. They are conditions of the same kind as are provided in respect of enforcement of foreign judgments. The effect of this Act was that foreign awards could in the Courts of India be enforced in the same way as awards made in India if they satisfied the ordinary conditions necessary for enforcing foreign judgments. The following clauses of the Protocol attached &, a Schedule to this Act are also relevant for the purposes of discussion: "(1) Each of the Contracting States recognizes the validity o. an agreement whether /relating to existing or future differences between parties subject respectively to the jurisdiction of different Contracting States by which the parties to a contract agree to submit to arbitration all or any differences that may arise in connecting with such contract relating to commercial matters or to any other matter capable of settlement by arbi tration, whether or not the arbitration is to take place in a country to whose jurisdiction none of the parties is subject. Each Contracting State reserves the right to limit the obliga tion mentioned above to contracts which are considered as commercial under its national law. Any Contracting State which avails itself of this right will notify the Secretary General of the League of Nations in order that the other Contracting States may be so informed. (5) The present Protocol, which shall remain open for signature by all States, shall be ratified. The ratification shall be deposited as soon as possible with the Secretary General of the League of Nations, who shall notify such deposit to all the signatory States. (6) The present Protocol will come into force as soon as two ratifications have been deposited. Thereafter it will take effect, in the case of each Contracting State, one month after the notification by the Secretary General of the deposit of its ratification. (7) The present Protocol may be denounced by any Contracting State on giving one year's notice. Denunciation shall be effected by a notification addressed to the Secretary General of the League, who will immediately transmit copies of such notification to all the other signatory States and inform them of the date on which it was received. The denunciation shall take effect one year after the date on which it was notified to the Secretary General, and shall operate only in respect of the notifying State." The contention on behalf of the appellants is that the Arbitra tion (Protocol and Convention) Act, 1937 was intended to give effect to the Protocol and could not apply to a country who was not a signatory to the Protocol. Pakistan was a new State which did not become party to the Protocol simply because its territory was originally a part of India which State was a signatory to the Protocol. As the Act was intended to apply only to the countries that were signatories to the Protocol and as the fact that India was a signatory would prima facie not imply that Pakistan became a signatory to the Protocol we called upon learned counsel for the respondents to address us in the first instance. Mr. Dingomal who appears for the respondent relied in the first place on Clause 4 of the Schedule to the Indian Independence (International Arrange ments) Order, 1947. We reproduce below the whole of this Order : "Whereas the agreement set out in the Schedule to this Order has been reached at a meeting of the Partition Council on the 6th day of August 1947: And whereas it is intended that, as from the 15th day of August 1947, the said agreement shall have the force and effect of an agreement : between the Dominions of India and Pakistan ; Now therefore in exercise of the powers conferred upon him by section 9 of the Indian Independence Act, 1947 (10 & 11 Geo. 6, ch. 30), and of all other powers enabling him in that behalf, the Governor‑General hereby orders as follows

1. This order may be cited as the Indian Independence (International Arrangements) Order, 1947.

2. The agreement set out in the Schedule to this order shall, as from the appointed day, have the effect of an agreement duly made between the Dominion of India and the Dominion of Pakistan. Agreement as to the Devolution of International Rights and Obligations upon the Dominions of India and Pakistan.

1. The international rights and obligations to which India is entitled and subject immediately before the 15th day of August 1947, will devolve in accordance with the provisions of this agreement. 2. (1) Membership of all international organizations together with the rights and obligations attaching to such membership, will devolve solely upon the Dominion of India. For the purposes of this paragraph any rights or obligations arising under the Final Act of the United Nations Monetary and Financial Conference will be deemed to be rights or obliga tions attached to membership of the International Monetary Fund and to membership of the International Bank for Reconstruction and Development. (2) The Dominion of Pakistan will take such steps as may be necessary to apply for membership of such international organizations as it chooses to join. 3. (1) Rights and obligations under international agreements having an exclusive territorial application to an area comprised in the Dominion of India will devolve upon that Dominion. (2) Rights and obligations under international agreements having an exclusive territorial application to an area comprised in the Dominion of Pakistan will devolve upon that Dominion.

4. Subject to Articles 2 and 3 of this agreement, rights and obligations under all international agreements to which India is a party immediately before the, appointed day will devolve both upon the Dominion of India and upon the Dominion of Pakistan, and will, if necessary, be apportioned between the two Dominions". According to clause 4 of the Schedule the rights and obliga tions under all international agreements will devolve both on the Dominion of India and the Dominion of Pakistan. The Protocol, it was urged, was only an international agreement and therefore Pakistan should be the successor in respect of the rights and obligations created by the Protocol. This clause may possibly have had the effect of making Pakistan a signatory as a successor of India if only rights and obligations as between India and Pakistan were being adjusted. Difficulty is created by the fact that there are third parties to be considered whose rights India and Pakistan cannot affect. It is clear that Pakistan cannot become a signatory to the Protocol unless the other countries who were signatories are also prepared to accept Pakistan as such. The Arbitration (Protocol and Convention) Act, 1937 is only a reciprocal arrangement as section 2 which has been reproduced above would show. It is only E when the Central Government is satisfied that reciprocal arrange ments have been made in another country that the name. of that country will be notified as one whose awards are to e given effect under section

4. If India and Pakistan have agreed between themselves that Pakistan will have rights under the Protocol the other parties to the Protocol are not at all bound to recognise Pakistan as a successor to those rights. They can very well say that they have entered into an agreement only with India and they are not prepared to enter into such an agreement with Pakistan. They may not be prepared ‑to enforce awards delivered in Pakistan though they may be prepared to enforce awards delivered in India. In any case they have not as yet entered into an agreement with Pakistan and there are no reciprocal laws in countries which are signatory to the Protocol for enforcing Pakistani awards. Until there be similar arrangements in other countries who are signatories to the Protocol for endorsement of the awards which are made in Pakistan, the awards of those countries cannot be enforced in Pakistan. This is not only implied in the nature of legislation with which we have to deal but is expressly provided for in section 2 which permits enforcement of awards of only those countries where reciprocal arrangements exist. At least there must exist legislation in the particular country whose award is to be enforced providing that Pakistani awards are to be enforced in that country. We find that the corresponding provision giving effect to the Protocol in England is section 35 of the English Arbitration Act, 1950. The section is reproduced below "35.‑(1) This Part of this Act applies to any award made after the twenty‑eighth day of July, nineteen hundred and twenty‑four. (a) In pursuance of an agreement for arbitration to which the Protocol set out in the First Schedule to this Act applies ; and (b) Between persons of whom one is subject to the jurisdic tion of some one of such Powers as His Majesty, being satisfied that reciprocal provisions have been made, may by Order in Council declare to be parties to the convention set out in the Second Schedule to this Act, and of whom the other is subject to the jurisdiction of some other of the powers afore said ; and (c) In one of such territories as His Majesty ; being satisfied that reciprocal provisions have been made, may by Order in Council declare to be territories to which the said convention applies ; and an award to which this Part of this Act applies is in this Part of this Act referred to as "a foreign award". (2) His Majesty may by a subsequent Order in Council vary or revoke any order previously made under this section. (3) Any order in Council under section one of the Arbitration (Foreign Awards) Act, 1930, which is in force at the commence ment of this Act shall have effect as if it had been made under this section." it will be observed that in accordance with this section the countries whose awards are to be enforced are to be notified by an Order in Council of His Majesty. In Russell on Arbitration, 1952 Edition there is a list of countries in respect of which there have been Orders in Council of His Majesty and Pakistan is not one of those countries. It appears obvious that an award delivered in Pakistan between a Pakistan and an Englishman will not be enforceable in England and if Pakistani awards are not enforceable in England awards delivered in England would not be enforceable in Pakistan. Similar would be the case of other countries who were signatories to the Protocol. There would be legislation in those countries on similar lines and it has not been alleged before us that in any country Pakistan has been notified as one of the countries whose awards are enforceable in that country. They could not be enforce able there simply because there was an agreement between India and Pakistan as to devolution of rights and liabilities. A further difficulty that arises is that other countries that are signatories to the Protocol are bound by the Protocol. The Protocol applies only to countries who have actually become signatories to it. This is expressly provided by clause 5 of the Protocol. No country would declare Pakistan as the country whose awards are to be enforced till it signed the Protocol. That apart from Clause 4 of the Schedule to the Indian Indepen dence (International Arrangements) Order, 1947 the rights and liabilities under the Protocol would not descend upon Pakistan seems to be in doubt. When a new country is created it is entirely a separate international entity and is not bound by agreements entered into by the State out of whose territories it is created merely because its territories were previously comprised in that State. The; effect of the creation of a new State out of an existing State is thus described in Hall's International Law "

27. When a new State splits off from one already existing, it necessarily steps into the enjoyment of all rights which are conferred upon it by international law in virtue of its existence as international person, and it becomes subject to all obligations which are imposed upon it in the same way. No question therefore presents itself with respect to the general rights and duties of a new State. What however is its relation to the contract obligations of the state from which it has been separated, to property belonging to and privileges enjoyed by the latter, and to property belonging to common, before the occurrence of the separation, the subject of the original State in virtue of their status as such, when some of them after the separation become subjects of the new State ? The fact of the pers6nality of a State is the key to the answer. With rights which have been acquired, and obligations which have been contracted, by the old State as personal rights and obligations the new State has nothing to do. The old State is not extinct ; it is still there to fulfil its contract duties, and to enjoy its contract rights. The new State, on the other hand, is an entirely fresh being. It neither is, nor does it represent, the person with whom other States have contracted ;they may have no reason for giving it the advantages which have been accorded to the person with whom the contract was made, and it would be unjust to saddle it with liabilities which it would not have accepted on its own account. What is true as between the new State and foreign powers, is true also as between at and the old State. From the moment of independence all trace of the joint life is gone. Apart from special agreement no survival of it is possible, and the two States are merely two beings possessing no other claims on one another than those which are conferred by the bare provisions of international law. And as the old State continues its life uninterruptedly, it possesses everything belong ing to it as a person,‑which it has not expressly lost so that property, and advantages secured to it by treaty, which are enjoyed by it as a personal whole, or by its subjects in virtue of their being members of that whole, continue to belong to it. On the other hand, rights possessed in respect of the lost territory, including rights under treaties relating to cessions of territory and demarcations of boundary, obligations contracted with reference to it alone, and property which is within it, and which had therefore a local character, or which, though not within it, belongs to State institutions localised there, transfer themselves to the new State person. Conversely, of course, the old State person remains in sole enjoyment of its separate territory, and of all local rights connected with it. Thus treaties of alliance, of guarantee, or of commerce are not binding upon a new State formed by separation, and it is not liable for the general debt of the parent State ; but it has the advantage of privileges secured by treaty to its people as inhabitants of its territory or part of it, such as the right of navigating a river running through other countries upwards or downwards from its own frontier ; it is saddled with local obligations, such as that to regulate the channel of a river, or to levy no more than certain dues along its course ; and local debts, whether they be debts contracted for local objects, or debts secured upon local revenue, are binding upon it." Learned counsel for the appellant has relied on Dr. Rare Babu Saksena v. Rex (A I R 1950 All. 342) where a question had arisen as to whether an extradition treaty entered into between India and Tonk State subsisted after the Tonk State had merged. in Rajasthan and it was held that with the disappearance of Tonk the treaty too dis appeared. We reproduce below a passage from the judgment where there is a quotation from McNair's Law of Treaties : "McNair also on p. 389 of his book entitled The Law of Treaties (1938 Edn. Chap. XXXV), says: "The view of the United Kingdom Government, which is also believed to be the general view, is that upon the complete annexation of the territory of a State and the merger of its exis tence in the annexing State the treaties affecting the extinct State and its territory lapse and lose their force (a) in the absence of any other treaty obligation resting upon the acquiring State which requires it to maintain the treaties in force, and (b) apart from certain obligations falling within the rule restransit cum sue ownere" Again in Chap. XXXVIII on p. 469 he says that "treaty obli gations cease to apply to territory which has passed out of the sovereignty (whether by cession or otherwise) of a contracting party". He, however, points out that "an exception exists in favour of those obligations which are of a purely local or `real' character affecting some particular piece of territory such as, a right of transit, the navigation of a river, etc., and that these obligations continue to benefit and burden the same territory under a new sovereignty." This too supports the proposition which appears to us to be well founded in reason that a new State is not bound by any agreement entered into by the State out of the territory of which it has been constituted. Learned counsel for the respondents relied on section 18 (3) of the Independence Act, 1947, which is the provision for con tinuance of laws ; on various sections of the Pakistan Adaptation of Existing Laws Order ; and on the adaptations actually made in the Arbitration (Protocol and Convention) Act. He urged that the laws of India were to continue as laws and the Arbitration (Protocol and, Convention) Act had even been accepted by Pakistan and that is why adaptations were made therein. The whole of this argument ignores the special nature of the legislation with which we are dealing. It was legislation the operation of which depended on the State being a party to an international agreement and on the existence of reciprocal arrangements for enforcement of Pakistani awards. The Arbitration (Protocol and Convention)! Act does continue as law, but its operation being dependent on certain conditions it will operate only if those conditions are fulfilled. If today those conditions are fulfilled this Act will begin to operate and there will be no need of any further legisla tion on the subject. A similar question arose before the Supreme Court of India [State of Madras v. C. G. Menon (A I R 1954 S C 517)]. The point in dispute was whether the Fugitive Offenders Act was still applicable to India. In the Indian Extradition Act as adapted after partition the pro visions of the Fugitive Offenders Act were referred to. Yet it was held that the Act was intended to apply only to British Possession and in spite of the provisions for the continuance of laws it could not be applicable to India which could in no sense be regarded as a British Possession. Learned counsel for the respondent had relied particularly on section 12 of the Pakistan Adaptation of Laws Order, 1947. This section provides that an Act done under any law in force in India which was valid when performed would not be invalid by reason of the partition of India. Learned counsel contended that the notification by the Central Government under section 2 notifying England as one of the countries whose awards were to be enforced in India could not be held to be invalid. But it is nobody's case that notification has become invalid. That notification applied to India and it still applies to India. The sections says it is only after satisfying itself as to reciprocal arrangements that the Central Government will issue a notification. Pakistan there will have to be fresh reciprocal arrangements and the notification shall have to be issued by the Central Government of Pakistan. We hold that the award cannot be enforced in Pakistan. This finding would be sufficient to dispose of the appeal but e regard it proper to deal with the second point raised before us also. The second point raised is that it was necessary for the respon dents to prove the arbitration agreements in writing in respect of the three agreements contract forms of which were not signed by the appellants arid in this they had failed. The appellants accept that they entered into those three contracts by means of cables but they do not admit as is alleged by the respondents that any contract forms were sent to them or that they accepted these forms as containing terms of the agreement between the parties. Section 7 (1) (a) of the Arbitration (Protocol and Convention) Act, 1937 requires (in view of the definition of submission in the English Act) an agreement in writing. Of course this does not mean that the agreement must be signed by the parties. If the terms of an agreement which is in writing are accepted by a party there would be an agreement in writing. _ The question is whether there is proof on the record of a written agreement which may have been accepted though it may not have been signed by the appellants. Even in an ordinary case where a person applies for a decree being passed in terms of an award under the Arbitration Act, 1940, he would have to prove the existence of an Arbitration agreement if the opposite party denied it. But so far as preceding under the Arbitration (Protocol and Convention) Act, 1937 arc concerned there are express provisions to the effect that such an agreement has to be proved. It will be convenient to reproduce here sections 7 and 8 of the Act "7. (1) In order that a foreign award may be enforceable under this Act it must have‑ (a) been made in pursuance of an agreement for arbitration which was valid under the law by which it was ;governed, (b) been made by the tribunal provided for in the agreement or constituted in manner agreed upon by the parties, (e) been made in conformity with the law governing the arbitration procedure, (d) become final in the country in which it was made, (e) been in respect of a matter which may lawfully be referred to arbitration under the law of the Provinces and the Capital of the Federation, and the enforcement thereof must not be contrary to the public policy of the law of the Provinces and the Capital of the Federation. (2) A foreign award shall not be enforceable under this Act if the Court dealing with the case is satisfied that‑ (a) the award has been annulled in the country in which it was made, or (b) the party against whom it is sought to enforce the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case, or was under some legal incapacity and was not properly represented, or (c) the award does not deal with all the questions referred or contains decisions on matter beyond the scope of the agree ment for arbitration Provided that if the Award does not deal with all questions referred the Court may, if it thinks fit, either postpone the enforce ment of the award or order its enforcement subject to the giving of such security by the person seeking to enforce it as the Court may think fit. (3) If a party seeking to resist the enforcement of a foreign award proves that there is any ground other than the non existence of the conditions specified in Clauses (a), (b) and (c) of subsection (1), or the existence of the conditions specified in Clauses (b) and,(c) of subsection (2), entitling him to contest the validity of the award, the Court may, if it thinks fit, either refuse to enforce the award or adjourn the hearing until after the expiration of such period as appears to the Court to be reason ably sufficient to enable that party to take the necessary steps to have the award annulled by the competent tribunal. 8. (1) The party seeking to enforce a foreign award must produce‑ (a) the original award or a copy thereof duly authenticated in manner required by the law of the country in which it was made ; (b) evidence proving that the award has become final ; and. (c) such evidence as may be necessary to prove that the award is a foreign award and that the conditions mentioned in Clauses (a), (b) and (c) of subsection (1) of section 7 are satisfied. (2) Where any document requiring to be produced under subsection (1) is in a foreign language, the party seeking to enforce the award shall produce a translation into English certified as correct by a diplomatic or consular agent of the country to' which that party belongs or certified as correct in such other manner as may be sufficient according to the law in force in the Provinces and the Capital of the Federation. It will be observed that section 8 requires evidence to prow, the matters contained in section 7 (1) and one of the matter specified herein is the existence of an agreement which is valid according to the law of the country where it is entered into. No oral evidence was produced in this case. An Affidavit had been filed along with the application as required by the Rule;; framed under the Arbitration (Protocol and Convention) Act by the Chief Court of Sind. A counter affidavit was also filed The appellant applied that Mr. Pugh who had sworn the affidavit] which was filed along with the application should ‑ be produced in Court so that he may be cross‑examined. Muhammad Bakhsh, J. passed an order to the effect that Mr. Pugh could be allowed to be cross‑examined if the appellants paid the expenses of his journey from England and back. The appellants failed to pay the expenses with the result that the matter was decided by Muhammad Bakhsh, J. on the basis of the affidavits alone. Mr. Dingomal who appears. for the respondents has taken us through the affidavit of Mr. Pugh and to number of letters received by the respondents from the appellants in order to show that contract form of the three contracts in dispute had been sent by the respondents to the appellants and the appellant had accepted them although they had not returned them after signature. He has pointed out the statements in letters alleged to have been written by the appellants wherein they refer even to the arbitration clauses in the contract forms. It is also pointed out by Mr. Dingomal that delivery had been given by the appellants in respect of these three contracts too. it may be stated here that copies of the three contract forms alleged to have been sent to the appellants have been placed on the file and are referred to in the affidavit of Mr. Pugh. If the affidavit of Mr. Pugh was legal evidence of the facts stated therein we may have found material in the affidavit and the letters for holding that the contract forms containing the arbitra tion clause had been accepted by the appellants as containing the terms of the contracts entered into between the parties although we should not be deemed to be expressing any final opinion or that point. But there does not appear to us to be much doubt that the affidavit is not legal evidence of the facts stated therein. An affidavit is not the ordinary method of proving facts in a suit or proceeding. Order XIX, rule 1, C. P. C. empowers the Court to allow any facts to be proved by affidavit subject to proviso that if a party desires bona fide to cross‑examine a witness the witness cannot be allowed to give evidence by affidavit. Rule 2 of Order XIX permits evidence to be given by means of an affidavit in case of an application subject to the proviso that the Court may order attendance of the deponent for cross‑examina tion. Neither of these two rules is applicable to the present case. There is no order by the Court for proof of facts by affidavit and an application under the Arbitration (Protocol and Convention) Act; has under section 5 of that Act to be registered as a suit and therefore is not within rule 2 of Order XIX. In fact learned counsel for the respondents had not relied before us on rule t or rule 2 of Order XIX. He relies on the rules framed by the Chief Court of Sind under section 10 of the Arbitration (Protocol and Convention) Act. These are Rules 293‑300 of the Rules framed by the Chief Court of Sind for regulation of its procedure on the Original Side. The Rules relevant for our pur poses are Rules 293‑298 which we reproduce below :‑ "

293. Applications, affidavits and proceedings under the Arbitration (Protocol and Convention) Act, 1937 (hereinafter in this Chapter called " the said Act ") shall be entitled in the matter of the said Act, and in the matter of the arbitra tion : Provided that applications, affidavits and proceedings under section 3 of the said Act shall be entitled as in the suit or matter which the applicant seeks to have stayed.

294. Applications under sections 3 and 5 of the said Act shall be made by Petition and shall be disposed of as miscel laneous matters.

295. Every petition shall be divided into paragraphs, numbered consecutively, and shall contain in a summary form a statement of the material facts relied on and the nature of the relief asked for, and shall specify the persons liable to be affected thereby. 296. (1) Upon an application for stay of proceedings under section 3 of the said Act being filed, the Court shall direct notice to be given to the party or parties to the proceeding, other than the applicant, requiring him or them to show cause, within the time specified, why the order should not be made, unless the Court is satisfied that the object of the application would be defeated by the delay occasioned by the notice. (2) Any order for stay made under sub‑rule (i) may be varied or set aside by the Court on application made thereto by any party dissatisfied with such order. 297. (1) The party seeking to enforce a foreign award shall produce with his petition ‑ (i) the document specified in section 8 (1) of the said Act and, where such document is in a foreign language, a trans lation thereof into English certified in the manner prescribed in subsection (2) of the said section 8 ; (ii) the original agreement for arbitration or copy thereof authenticated in manner required by the law of the country in which it was made and, when the same is in a foreign language, a translation thereof into English certified in manner prescribed in subsection (2) of the said section 8: (iii) an affidavit or affidavits showing (a) that the said agreement was valid under the law by which it was governed, (b) that the award was made by the tribunal provided for in the agreement or constituted in the manner agreed upon by the parties (c) that it was made in conformity with the law governing the arbitration procedure, and (d) that it has become final in the country in which it was made; and (iv) other document or documents in support of his application. (2) If the application under section 5 of the said Act be presented without the document specified in clause (i) of sub‑rule (1), it shall forthwith be returned to the party presenting it. If such application is unaccompanied by the documents specified in clauses (ii) and (iii) of sub‑rule (1), the Court may allow time within which such documents must be filed. 298. (1) The Court shall presume that a copy of an agreement for arbitration or of an award required to be produced under sub‑rule (1) of rule 297 is duly authenti cated in manner required by the law of the country in which it was made if it is certified on the face of such copy by a diplomatic or consular agent of the British Government or of the Government of India in the country in which it was made that the authentication is in the manner commonly used in that country for the authentication of copies of such documents. (2) The Court shall presume that any document purport ing to be a copy of the arbitration proceedings relating to the award is genuine and accurate if it is certified on the fact of such document by a diplomatic of consular agent of the British Government or of the Government of India in the country in which the arbitration proceedings took place that the document is authenticated in manner commonly in use in that country for the authentication of copies of such documents ". Learned counsel urges that as the Rules allow an affidavit to be filed along with the application it means that fact stated therein can be proved by such affidavits. We are unable, however, to agree that facts stated in such affidavits can prove facts as against the defendant. It appears to us that the intention of Rule 297 when it directs the filing of an affidavit was only this that without filing the affidavit and without compliance with the other requirements of Rule 297 an application should not be registered at all and notice should not be issued to the defendant unless there was prima facie material before the Court that the award was en‑ H forcible under the Arbitration (Protocol and Convention) Act. These Rules do not say that this affidavit shall be proof of such facts as is provided in Order XIX, rules 1 and 2, C. P. C. There is also no provision either for the defendant being furnished with a copy of the affidavit or for the filing of a counter‑affidavit. At the same time Rule 72 of the Rules framed by the, Chief Court of Sind for its Original Side contains a provision (parallel to rules 1 and 2 of Order XIX, C. P. C.) as to the cases in which facts may be proved by affidavits. The Rule runs as under :‑ " 72. (f) Unless otherwise provided by these rules or ordered by the Court, any facts required to be proved in the follow ing matters may be proved by affidavit :‑ (a) any uncontested case under Regulation VIII of 1872, the Indian Succession Act, 1925, and the Guardians and Wards Act, 1890‑; (b) Suits in which defendants do not appear when called on for hearing ; (c) interlocutory applications ; and (d) proof as to the ability of the judgment‑debtor to pay the decretal amount in execution applications for arrest, where the judgment‑debtor does not appear at the hearing though served with notice. Explanation.‑For the purpose of this rule, an application under rules, 58, 97, 99 or 100 of Order XXI of the Code shall be deemed to be an interlocutory application. (2) Nothing in this rule shall be deemed to affect the pro visions of section 12 of the Deccan Agriculturists' Relief Act, 1879, or limit or otherwise affect the power of the Court to order or permit proof by affidavit in other cases as provided in Order XIX of the Code ". If the intention was that in an application under the Arbitra tion (Protocol and Convention) Act facts may be proved by affidavit there is no reason why that should not appear in this rule. Unless learned counsel for the appellants could show that Rule 72 was attracted the affidavits filed in this case would not become evidence of the facts stated therein. It is clear on a reading of Rule 72 that none of its clauses would apply to the present case. It is conceded by Mr. Dingomal that these proceedings cannot by any stretch of language be called an interlocutory application. He has referred to the fact, that under Rule 294 the proceedings are to be regarded as a miscellaneous matter but that does not help him for a miscellaneous matter is not one of the proceedings mentioned in Rule

72. One other point deserves notice. The appellants had applied that they be allowed to cross‑examine the deponent. The Court reached the conclusion that they should be allowed to cross‑examine. It, however, imposed the burden of the expense of the journey of the witness from England and back on the appellants. There was no good ground for the appellants being burdened with this expense when it was under the law the duty of the respon dents to prove the existence of an agreement. If the cross- examination was required bona fide, if there was a possibility of the cross‑examination providing material for the propel decision of the case, the affidavit could not, on the principal. embodied in rule 1 of Order XIX, C. P. C. be regarded as evidence of the fact stated therein.' Therefore even if we were' to regard the case as covered by the provisions of the Civil Procedure Code relating to affidavits the virtual refusal of the Court to permit cross‑examination would render the affidavit inadmissible in proof of facts. Rule I of Order XIX makes it clear that whenever the party desires to cross‑examine any witness bona fide the request must be allowed. Rule 2 also. gives discretion to the Court to permit cross‑examination which discretion it would exercise to advance the cause of justice and cross‑examination would be disallowed only where it could not help in the determination of the matters before Court and the object was only to delay proceedings. The result therefore is that so far as three contracts Nos. 118: 1202 and 1205 are concerned, we do not rind evidence on the record to prove the existence of a written agreement for arbit ration. This, however, would not have resulted in the dismissal of application to enforce the award so far as it relates to these contracts and would have only entailed a remand for the Court had not called upon the respondents to produce evidence. On account of our decision on the first point we accept this appeal and set aside the order of the learned Single Judge making the award a rule of Court. We direct, however, that the parties shall bear their own costs throughout. A.H. Appeal accepted.