2003 PLP 1194 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

The petitioner seeks grant of leave from order, dated 4-2-2002 passed by the Lahore High Court, Lahore in F.A.O. No.96 of 1995.

2. The facts of the case, succinctly stated, are that the respondent No. 1 filed on 13-10-1988 an application under sections 14 and 17 of the Arbitration Act, 1940 for filing the award, dated 5-8-1988 of the Arbitrator Colonel (Retd.) Ahmed Iqbal Tawana and for making the award rule of the Court. The trial Court framed as many as 14 issues. After recording the evidence of the parties the application of respondent No.1 was allowed by the trial Court on 11-5-1991. The appeal bearing F. A. O. No. 119 of 1991 preferred by the petitioner there against was allowed by the Lahore High Court on 13-2-1994 and the case was remitted to the trial Court for a fresh decision. During the post-remand proceedings the respondent No.1 filed an application for permitting her to lead secondary evidence on the ground that the original arbitration agreement was lost. The same was dismissed by the trial Court on 16-1-1995. However, the Trial Court recorded its findings on the issues and allowed the application of the respondent No.1 vide order, dated 6-3-1995 by making the award rule of the Court for an amount of Rs.2,5,500 as a consideration of her dowry articles. The F.A.O. No.96 of 1995 filed by the petitioner against order, dated 6-3-1995 was dismissed by the impugned order of the Lahore High Court.

3. The learned counsel for the petitioner argued that the award itself was insufficiently stamped and was rendered without the support of any evidence and without opportunity of hearing to the petitioner. It was further submitted that the award was bereft of valid reasons and sufficient details. The arbitrator misconducted by acting in blatant disregard of the mandatory requirements of section 26-A of the Arbitration Act, 1940. Therefore, the trial Court was not in a position to consider and appreciate the questions of law arising out of the award. It was contended that in the presence of some of observations made by the High Court in para.6 of the impugned judgment, the trial Court would not be in a position to apply its judicial mind independently. The learned counsel relied upon the case of Muhammad, Tayab v. Akbar Hussain (1995 SCMR 73) in support of the proposition that High Court was required to go into the merits of the whole case.

4. We have heard the learned counsel for the petitioner at length. We find that in the earlier round of the litigation between the parties, the Lahore High Court, in its judgment, dated 13-2-1994, had observed that some positive evidence should have been led by the respondent No. 1 as to the loss of the original arbitration agreement. In these circumstances the learned Judge in Chambers was justified in taking the view that on account of the dismissal of the application for permission to lead the secondary evidence, the respondent No. 1 was prevented by the trial Court from the compliance of the` earlier judgment, dated 13-2-1994 of the Lahore High Court. Therefore, the trial Court was directed by the High Court to treat the application, dated 16-1-1995 of the respondent No. 1 as pending and to record the evidence of the parties thereon. The trial Court was further directed to decide the issues framed on the basis of the existing evidence in case the loss of original. arbitration agreement was proved. Therefore, it was not necessary for the learned Judge in Chambers to address the other submissions even if made by the learned counsel because of the failure of the trial Court to comply with earlier order of remand of the case by the High Court. Needless to observe that the petitioner had not called in question the earlier remand order, dated 13-2-1994 passed by the Lahore High Court in F. A. O. No. 119 of 1991. No exception can be taken to the validity of impugned judgment whereby the Lahore High Court has directed the trial Court to follow and comply with its earlier remand order in letter and spirit. Necessary issues have already been framed by the trial Court in the main case which will be re-decided in the light of the evidence of the parties. Any expression of opinion by this Court as to the submissions of the learned counsel is likely to prejudice the case of either of the parties pending before the trial Court. Therefore, we would not like to pre-judge or pre?empt the trial Court, which is yet to record its findings on the issues already framed. However, the observations made by the High Court in para.6 of the impugned judgment as to the overwhelming evidence on record may not be construed as precluding the trial Court from deciding the issues by independent application of judicial mind in accordance with law.

5. No substantial question of law of public importance is involved in this case so as to call for any interference with the impugned judgment passed by the Lahore High Court.

6. For the foregoing reasons, we do not find any merit in this petition which is dismissed accordingly and the leave to appeal is refused. No order as to costs. M.H./S-211/S????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.