1999 PLP 1738 (MLD)

5. Respondents Nos.2 to 4 conceded the plea of the appellant and submitted a consenting written reply on 28-9-1989. Respondent No.5 also contested the case on the plea that he did not join the arbitration proceedings after 2-9-1988. In his presence, no account was taken and no award was made. The contesting written statement was filed by respondents Nos. l and 5 on 8-7-1990.

6. Respondent No.l also filed an application under section 33 of the Arbitration Act where he challenged the validity of award dated 16-3-1989. He asserted that the award has not been made within four months; the account related to eight years which were time-barred; parties were not heard together; Workshop was not visited by the Arbitrators; the Arbitrators appointed by him had refused arbitration within a period of four months due to unbecoming behaviour of respondents Nos.2 and 3 and other minor objections were raised against the award.

7. The learned Civil Judge on the basis of the pleadings of the parties framed the following issues:- (1) Whether the award dated 16-3-1989 is liable to be set aside on the grounds mentioned in the application filed by Muhammad Ibrahim son of Abdul Ghani under section 33 of the Arbitration Act? O.P.R. (2) If issue No. 1 is not proved in affirmative, whether the arbitration award dated 16-3-1989 is liable to be made as rule of the Court? O.P.R. (3) Relief.

8. The appellant in order to prove his averments produced A.W. Allah Ditta, one of the arbitrators nominated by him, and he himself appeared as A.W.2. and produced documentary evidence in the form of Exh, A-1 copy of agreement, Exh.A-2 record of the proceedings, Exh:A-3 decision of the arbitrator, Exh.A-4 copy of registered and Audio Cassette Exh:A-5 to Exh: A 10. respondent No.l produced respondent No.5 as R.W.1, who was his nominated arbitrator alongwith Muhammad Akram R.W.2, Abdul Majeed R.W.3. and respondent No. 1 himself appeared as R.W.4. He produced Exh.R-1 to Exh.R-3.

9. The learned Civil Judge after recording the evidence and hearing the learned counsel for the parties accepted the application of respondent No. 1 and rejected that of the appellant vide impugned judgment dated 14-3-1993

10. Learned counsel for the appellant contends that the burden of proof of issue No.l was upon respondent No.l who miserably failed to prove in accordance with law. Learned trial Court has erroneously accepted the application under section 33 of the Arbitration Act on erroneous consideration. The appellant proved his case for making award rule of the Court and rejection of his application under section 14/17 of the Arbitration Act by the learned Civil Judge is illegal.

11. Learned counsel for respondent No. 1, on the other hand, submits that the appellant has failed to prove claim Rs.3,40,250; the award is not supported by evidence on the record and three of the Arbitrators out of four have erroneously supported his claim while submitting award Exh.A3 in the Court. He further submits that the judgment of the trial Court call for no interference

12. I have heard the learned counsel for the parties and perused the record with their assistance. Award dated 16-3-1989 was made by the three out of four Arbitrators nominates by the appellant and respondent No.

1. Respondents Nos.2 to 4, nominated arbitrators, came to the conclusion that respondent Nos.l is liable to pay Rs.3.40,250 to the appellant. They have examined the entire record. Respondent No.2 who was the Arbitrator nominated by the appellant also appeared in the Court and was cross examined at length, has supported the award. The award itself deals in detail with all the necessary evidence and material examined during the proceedings by the Arbitrators. It is admitted fact that the parties had agreed that the decision of the majority of the Arbitrators shall be acceptable to both of them. The reference to the Arbitrators is also admitted. They have not determined the award beyond the scope of the reference. No proof of misconduct has been established against the Arbitrators. Respondent No.5, one of the Arbitrators, who appeared as a witness in support of respondent No.l, has disagreed with other Arbitrators. His evidence alone is not sufficient to discredit the award made by respondents Nos.2 to 4 in favour of the appellant. There is no reliable evidence to brush aside the well-reasoned award dated 16-3-1989 announced in favour of the appellant by respondents Nos.2 to 4

13. The contention of the respondent that the award was not finalized within four months has not caused any prejudice to him. The matter remained under adjudication before the Arbitrators and it was not provided in the reference that if the award is not made within four months, its validity shall stand vitiated. Even respondent No.l has not taken this point before the Arbitrators for finalization of the award within the aforesaid period. There is no bar to determine accounts beyond three years. Arbitrators were justified in taking 8 years accounts into consideration.

14. The award made by the Arbitrators after considering the entire evidence, spot inspection and contention of the parties, could not be lightly set aside. The Supreme Court in its judgment (1985 SCMR 597) Ashfaq Ali Qureshi v. Municipal Corporation Multan and another has clearly laid down that the allegations of misconduct and collusion of the Arbitrator with one of the party without specific instances do not affect the validity of the award. Once the arbitrator chosen by the parties itself makes an award it becomes the duty of the Court to give every reasonable intendment in favour of the award and lean towards upholding it rather than vitiating it. Court is not to act as a Court of appeal sitting in judgment over the award in order to succeed in getting the award vitiated. Error must be on the face of the award and not latent such as can be discovered after scrutiny of the material beyond the award. The award cannot be set aside without patent infirmity therein. The aforesaid judgment clearly shows that the objections raised by respondent No. 1 against the award do not show any infirmity in the award on the face of it. The burden of proof to show that the award was beyond the scope of reference or the Arbitrators misconducted was on respondent No. 1 who failed to discharge. After going through the award and the reference to the Arbitrators, I am satisfied that the Arbitrators have not committed any misconduct in making the award dated 16-3-1989. The- trial Court has erroneously set aside the award. For the reasons stated above, this appeal is accepted, impugned judgment dated 14-3-1993 is set aside and award dated 16-3-1989 is made rule of the Court by accepting the application under section 14/17 of the Arbitration Act of the appellant. The application under section 33 of the Arbitration Act filed by respondent No. 1 is dismissed. Parties are, however, left to bear their own costs. A.A./M-772/L Appeal accepted.