P L D 1986 Quetta 321 (PLP)

Sri Jagdish Swarup pleaded that if substantial justice had been done by the direction of the trial Couit that a decree shall follow 'we should not interfere but justice ought to be done in accordance with the law, and moreover, since we do not know the merits of the disputes between the parties we are not in a position to say that the decree is in accordance with the legitimate rights of the parties. "Even if the formal order were treated as a decree we would have juris?diction to set aside decree.. Section 1'1 as said already does not bar an appeal from any decree passed in any circumstance whatsoever; it bars an appeal only if the decree teas passed in a proceeding under sections 14, 15, 16 and

17. If it was passed in another proceeding it would be appealable as a decree under the Coda 'of Civil Procedure." (ii) Gunendralal Das Chowdhury and others v. Mitandralal Das Chowdhury (1969 D L C 49) So, in view of the fact that the requirements as contemplated under section 17 of the Arbitration Act having not been complied with in the instant case the decision of the learned Munsif according to to Mr. Sen, is not a decree under section 17 of the Act and as such the provisions of appeal as made under section 17 of the Act are not attracted in the facts and circumstances of the present case. Mr. Sen also contends that in the instant case the provisions as laid down in section 39, subsection (1), clause (6) as to appeal are not also attracted in the facts and circumstances of the present case so after referring to the provisions of law from the Arbitration Act as mentioned above. Mr. Sen their contends that the revisional application against .the decision of the learned Courts below before me is quite maintainable in accordance with the law. Before I go to discuss the decisions which have been referred to me by Mr.Sen and also Mr. Banil appearing on behalf of the opposite party, I would like to say that the provisions as laid down under section 115 of the Code of Civil Procedure is wide enough to call for an interference by this Hon'ble Court in a case like this, particularly because the High Court can suo morn' interfere with a wrong decision under section 115 of the Code of Civil Procedure. In support of his contention. Mr. Sen has reterred me to the decision of various High Courts and particularly to a decision of Supreme Court in the case of Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies P L D 1964 S C

97. Their Lordships of the Supreme Court in para. II of the said decision have clearly decided the law on the point and I would like to quote the same in thi‑s connection:‑ "When questioned as to why the illegal order of 22nd April, 1960 should not have been set aside in the exercise of revisional powers all that learned counsel for the respondents urged was that the limitation for fiting an application for revision had expired when the leaned single Judge. decided the case, and the Revision before him was not directed against the order or 22nd April; 1960, but against the order of the trial Court setting aside the ex parte decree. This contention is wholly devoid of force. The Limitation Act does not provide for any period of limitation for an application in Revision. The only article ‑ which could be applicable was the residuary Article 181 which provides a limitation of three years for an application but even that Article will not stand in the way of the exercise of ?revisional power for these powers can be exercised suo motu. ' At the same it should be remembered that the respondents had theta. selves approached the High Court in the exercise of its revisional jurisdiction and once the High Court is seized of the case in the exercise of such jurisdiction it can in accordance with section 115, C. P. C. make such order in the case as it thinks fit." (vi) Balawal Khan v. Cape. Muhammad Alarn Khan and others (P L D 1956 Lah. 494): "Before concluding, I have to mention that the . respondent cited a number of cases laying down that revision does not lie when the Court, after considering the objections to an award, has set it aside though in doing so it may have preached some wrong conclusion of law or fact. It is not necessary f r me to go minutely into the matter as I have found the award to be invalid. I may point out, however, what I regard to be the general principle applicable. Conclusions of law or fact are not per se grounds for revision. But if a Court misinterprets the law relating to its own jurisdiction with the result that while under the law it ought to have proceeded under the provisions relating to arbitration, it wrongly tries the case on merits, that would be a good ground for revision." (vii) Syed Hussain Shah v. Haji Ghulam Hassan Khan (P L D 1953 Pesh. 59) ????? "The policy of the Arbitration Act is that after an award is filed in Court, and after complying with the. provisions of law contained in different sections of the Arbitration Act, the Court should pass a distinct order, either to set aside the award, or refusing to set aside the award. That such a distinct order should be passed by ? the Court is clear from the wordings of section 17 read with section 39 of the Act, because until and unless such an order exists on the record no appeal lies from the order of the trial Court. But enact?ing section 39, the legislature clearly gave a right to the aggrieved party to go up on appeal against certain order, which the Court could not take away from him by omitting to pass such an order. After writing a distinct order, with regard to the setting aside, or refusing to set aside the award, the Court should then pass another order of pronouncing judgment according to the award. The decree is the final stage of the arbitration proceedings, which can only be reached after the orders mentioned above have been passed in clear words. No right of appeal exists from the decree passed under the above circumstances by the provisions of section 17 of the Arbitration' Act. It is true that when a Court rejects the objection of a certain party, and pronounces its decree, the order refusing to set aside the award and pronouncing judgment according to the award is implied therein, but then a Court of law should not leave anything obscure; it should be clear and precise in those orders so that a party may not be divested of the right which the law extends to him." (viii) Noor Muhammad Sharlf v. Mirza Muhammad Ashraf and others (1980 C L C 1984):. "The first question in this case is whether the revision petition it competent. I am of the view that there can be no objection to the maintainability of this revision petition in view of the circumstances of this case. Section 39 of Arbitration Act provides for orders which are appealable. One of the categories of the orders is where it is against the order setting aside or refusing to set aside and award. If the learned trial Court had issued notice after the filing of the award to the. petitioner about the filing of the award and had given him an opportunity of raising objection within the time fixed by the Limitation Act, the matter would have fallen within the provisions of clause (vi) of subsection (1) of section 39 of the Arbitration Act and the judgment would have been appealable since the order could have amounted to an order refusing to set aside an award. But in the present case, that opportunity was never afforded. In these circumstances, it cannot be said that the matter fell within the scope of clause (vi) of subsection (1) of section

39. The only other remedy is by Revision Petition which has been pursued by the petitioner. The Revision Petition is accepted with. costs, the order and decree is set aside and the matter is remanded to the learned trial Court to give an opportunity to the petitioner to file necessary objections." (Ix) Harbhan Dal and another v. Ladli Saran and another (A I R 1933 Oudh 547): It cannot be said that in no possible case a revision be entertained against such decree. If for instance, it can be shown that the lower Court acted altogether without jurisdiction in passing a decree in terms of the award, ii: would be permissible for a Court to entertain revision under section 115, C. P. C. It is therefore, necessary to examine the applicant's contention on its merits." (x) Debir‑id‑Din v. Amina Bibi and others (P L D 1982 Ouetta 52): "A preliminary objection has been taken to the effect that no petition in revision lies against a judgment and decree passed in accordance with an award filed in the suit following the arbitration proceeding under Schedule 11 to the C. P. C. and in support of this submission 'reference has been made‑ to the case of Ghulam Khan v. Muhammad Hassan. There is a great deal of force in the objection, but at the same titre, I am not prepared to lay down as a general rule that in no case in which an award. has been filed and decree passed in accordance therewith, can this Court interfere under section 115, C. P. C. It is conceivable that there may be cases in which the Arbitrators or the Court may have exceeded their jurisdiction or acted with material irregularity in the conduct of the proceedings." (xi) Delhi Cloth and General Mills Co. Ltd. v. Firm Kidari Pershad? Chhedi Lai of Ferozpore Cantonment (A I R 1921 Lah. 396): "It is contended for the petitioners that in coming to this finding the lower Court has misconceived the evidence. It has been held in Panna Lai v. Soman that a revision lies against a decree upon an award, where the Court which passed the committed an error in procedure or has misused the jurisdiction prescribed by the C. P. C. If the finding of the lower Court has proceeded on a misconception of evidence as contended by the petitioners, this would be an error in procedure justifying the interference of this Court in Revision." Thus taking into consideration the preponderant view expressed in aforesaid judgment, I am inclined to hold that though in the event when decree is passed on the basis of award, according to section 17 of the Arbitration Act appeal is not maintainable, yet on the pointation of apparent illegality impropriety material irregularity, misexercise of E jurisdiction, lack of Jurisdiction or violation of law or established procedure same can however, be challenged by way of Revision Petition within the purview of section 115, C. P C. Learned counsel for respondent attempted to place reliance on the observation in case Malik Ghulam Hassan v. Government of Baluchistan (P L D 1982 Ouetta 52) contending that State had itself not pressed Revision Petition maintaining that it was incompetent therefore, on the same analogy petitioners are estopped to press this Revision Petition. I am afraid such circumstances cannot be legitimately drawn in this case because in the above report Court has riot given any decision regarding maintainability of revision petition. Undoubtedly same was not pressed by learned Assistant Advocate‑General, Therefore concession made by State counsel in said case cannot constitute a precedent for debarring it to plead validity and maintainability of present Revision Petition. In the circumstances reference to the above report has no legal bearing on this aspect of the case. In view of above discussion p I have no hesitation to conclude that, both (i) appeal and (ii) Revision filed by petitioner are maintainable to the extent of their respective sphere and scope as prescribed by law. Next objection relates to deficiency of Court‑fee on appeal and Revision Petition. Learned counsel for petitioner relied on the observa?tion of cases. (i) Soundamini Ghose v. Gopal Chandra Ghose (1911) 28 I C 557, and (ii) Khetternath GangulE, and another v. Ushabala Dasi (1915) 22 I C 391 and has stressed that court‑fee will be payable. Schedule II Article 11, of the Court Fees Act. However, learned counsel for respondent relying on the observations of this Court in cases Province of Baluchistan v. Gul Hassan, and Province of Baluchistan v. Sardar Muhammad Usman Civil Miscellaneous Appeal No. 2 of 1980 has contended that ad valoren court‑fee is payable. It may be seen that true import of relevant provision of Court Fees Act has been lucidly discussed. In case Zafar Hussain Rizvi v. Muhammad Hanif, and Thus when appeal filed by aggrieved party is aimed only at challenging the order of Court refusing to set aside the award or otherwise in that case payment of court‑fee shall be regulated by Article 11, Schedule II of the Court‑fee Act. It is pertinent to mention here that probibition contained in section 17 of the Arbitration Act regarding non‑maintainability of appeal against decree was neither mooter nor considered in any of the above‑quoted Quetta judgments. In the circumstances same are not applicable on all force to the facts in this case. However, to the extent observed above I humbly dissent from the observation of said reports. It may, however, be observed that in such appeals, decree passed in the matter pursuant upon judgment pronounced by the Court cannot be directly questioned. Therefore, in the event that revision petition is found to be maintainable for challenging the validity of said decree, then it would be necessary to ascertain as to the amount of court‑fee ought to be paid on the memo of revision petition. It has been vehemently contended by learned counsel for respondent that whenever a decree is sought to be challenged directly or indirectly an aggrieved party can do it only by paying ad valoren court‑fee. In support of` his contention in case Gui Hassan v. Province of Baluchistan and Province of Baluchistan v. Sardar Muhammad Usman (Civil Miscellaneous Appeal No. 2 of 1980) were also referred. Whereas learned counsel for petitioner has strenuously argued that court‑fee in such events is chargeable under Article

1. Schedule 11 and as such petitioner is not liable to pay ad valorem court‑fees. He has however. contended that if at all petitioner is found to have affixed deficient court‑fees on the memo. of revision petition in that case time he granted to petitioner to make up deficiency within the purview of section 1.49, C. P. C. It may be seen that Article 13(A) of Schedule I of Court‑Fees A specifically deal with the manner of payment of court‑fees when revisional jurisdiction is invoked either to challenge an order or decree of subordinat Courts. There is, however, no mention as regard amount of court‑fee i case revision petition is filed against decree of original Court as in the) instant case. Any how evidently wherever decree is shown to have been, challenged byway of appeal or revision, court‑fee is required to be paid on ad valorem basis. But learned counsel for petitioner has argued that in the absence of specific provision memo. of petition would be deemed to be chargeable in accordance with Article 1 of Schedule II and no omission could be provided to law, for burdening the petitioner with the amount of court‑fees which otherwise has not been prescribed. It may be seen that whenever legislature provided mere application for invoking revisional jurisdiction in that case its manner and scope has been specifically defined, therefore by comparing provision of Article 13‑A of Schedule I an Article 1 of Schedule 11 contentions raised by petitioner does not appear to be well conceived. All the same it is quite manifest that wherever decree of Court Is required to be challenged either directly or indirectly ad valorem court‑fees has been prescribed. Therefore in my opinion no departure can be taken in the matter of payment of court‑fees when decree of the Court is sought to be challenged in the instant case. Here it may be mentioned that 1 am conscious of principle of causa omissus. Normally while interpreting provisions of law omission cannot be supplied. But at the same time by complaining effect of various provisions real intent of J legislature can always be ascertained. Detailed scrutiny of relevant provisions do indicate that whenever decree of the Court is challenged directly or indirectly by way of appeal or Revision, the court‑fees will be payable on ad valorem basis. It is in the circumstances to be considered whether time for payment of court‑fee be allowed to petitioner as con?templated under section 149, C.P.C. or not. Evidently question of payment of court‑fees on the memo of revision petition is extremely debatable. Therefore, deficiency in the levy of court‑fees can hardly be deemed to be mala fide, intentional or contumacious, in the instant case. Besides respondent in the reply, dated 7‑6‑1981 and application dated 17‑12‑1985 has himself alternately offered to make up deficiency if so directed by the Court. (Relevant portions of said application and reply are however re?produced):‑ "It is, therefore, prayed that this Hon'ble Court before hearing of the revision petition/appeal, may be pleased to direct the petitioner/ appellant to make deficiency of court‑fee leviable under the law." That in this case the petitioner has not paid the requisite court‑fee, therefore, either the Revision Petition is liable to be dismissed or in the alternate the petitioner must pay the requisite court‑fee before the revision petition is heard on merits. It is, therefore, prayed that in the interest of justice, either the Revision Petition may kindly be dismissed for non‑payment of requisite fee or the petitioner should make good the deficiency if the petitioner so chooses." Moreover, concept for extension to make up deficiency has been exhaus?tively elucidated by the Supreme Court in case Siddique Khan and 2 others v. Abdul Shakur Khan and another ((1) P L D 1984 S C 289). Relevant observations are reproduced below:‑ "This Court has also held though in a different context that the institution of the suit is by presentation of the plaint when it is accepted by the Presiding Officer, "any defects notwithstanding." See Muhammad Siddlque v. Zawar Hussain Abidi. To the similar effect namely that validity for limitation is not affected by d;ficient court‑fee, are Gavaranga Sahu v. Botok, ishna Patro, and Har Ram v. Akbar Hussain wherein it was held that the plaint is a plaint even if it is not properly stamped. See also Ramgopal Chunilal v. Ramsarup Baldevdas and others, George Benjamin Hampson v. deewanmall Bros, and Stuart Jkinner alias Nawab Mirza v. William Orde and others. It is also appropriate here to state the well‑accepted rule about Courts, attitude towards the collection of court‑fee as agent of State. It is to the effect that the Court‑Fees Act like the other fiscal statutes is to be construed strictly and in favour of the subject; and that it was passed with the object of securing revenue for the benefit of the State and not to arm a litigant with a weapon of technicality to harass his opponent See Tachappa ~ubrao v. Shidappa Venkatrao, Muhammad Sharif v. Mst. Natho and Sharaf Faridi v. M. S. Shahani. One more conclusion that can be drawn from' the foregoing discussion is that the failure to supply proper court‑fee in the context of the Court‑Fee Act and section 149, and Order VII, rule 11(c) can at best be equated with non‑prosecution and not the bar of limitation. Accordingly, consideration in that behalf for exercise of discretion under sections 148 and 149 and the relevant provisions of Court‑fees Act should be different from those under section 5 of the Limitation Act, which in any case does not apply to the suits. To apply the latter to the former cannot be justified on any rule of interpretation. This is what was thought as the proper approach by the Lahore Full Bench in the case of Jagat Ram (1938) where discovering the meaning of bona fides from the General Clauses Act rather than applying the Limitation Act. In the light of these additional reasons on this subject the rule laid by this Court in the cases of Mst. Parveen (1983) and Shahna (1983) is re‑affirmed. For all these reasons it is accordingly held that when considering the options for exercise of discretion for grant of time for supply of deficiency in the court‑fee. considerations relevant to bar of limitation shall not be taken into account. The P. C. case of Stauri Skinner alias Nawab Mirza (1879) is indeed very instructive regarding some salient features of the controversy which are the same today‑more than a century later It is high time that notwithstanding the judicial exercise, the legislative intervention should also be seriously considered on the lines that the law of court‑fees might be totally separated from that of Civil Procedure Code. And if the law of limitation is to be introduced at all in relation to court‑fee it should be done clearly and specifically in the law on that subject. In doing so some, of the practical aspects pointed at page 135 of the report. in Skinner's case might serve as guidelines even though the case formally was concerned with the late payment of court‑fee by a plaintiff, who gave up the plea to sue in forma pauperis and in the meanwhile limitation period elapsed. Mention is also made of benefit to both sides if it is adjudicated. The theory of conversion of piece of paper into a plaint only on the day of payment of the court‑fees, was rejected without reservation.The following very weighty observa?tions cannot at all, the lost sight of even today.?????? "The petition as plaint was placed upon the file and numbered on the 19th of July, 1973 and this is the plaint that is allowed to go on Although the analogy is not perfect, what has happened is not at all unltlCe that which so sommonly happens in practice in the Indian Court that a wrong stamp is put upon the plaint originally, and the proper stamp is afterwards affixed. The plaint is not converted into a plaint from that time only, but remains with its original date on the file of the Court, and becomes free from the objection of an improper stamp when the correct stamp has been placed upon it. In this behalf reference may also be made to case reported in Hashmat Ali v. Muhammad Shurif and others (1985 S C M R 301) and Gulzar Hussain v. Abdur Rehman .( 1985 S C M R 301). Thus, fortified by instructive rule laid down in the above‑quoted judgments and keeping in view complexity in interpreting the legal position regarding levy of court‑fees in this it would be necessary to grant reasonable time to petition to make up the deficiency of court‑fee. Accordingly petitioner is directed to pay up the court‑fees on the amount subject‑matter of decree, calculated on act valorem basis within two months. Now so far merits are concerned it has been argued that proceedings from the very inception were devoid of lawful authority as there was no arbitration clause in the agreement. Besides the original Court has no territorial jurisdiction to entertain the matter as contract pertained to Panjgoor. Correctness of the impugned order on the point of limitation has also been seriously criticized Mr. Chishti learned counsel for petitioner has strenuously urged that award was filed in absence of petitioner or his counsel and no notice as required by law was given consequently effect of mandatory language of section 14 (2) and Article 158, Limitation Act, the starting point of limitation has been misinterpreted. Whereas, Mr. Ehsanul Haq learned counsel for respondent vehemently urged that award was filed in the Court on 27‑11‑1976 and thereafter Government pleader had been obtaining time to file objections, therefore, it is not open for the petitioner to plead absence of notice about filing of award. According to him question of limitation has rightly been decided by the trial Court. Learned counsel for petitioner next contended that no opportunity for leading evidence was at all afforded which has caused prejudice, as factum of alleged notice for filing the award was clearly based on facts which needed proof. This aspect is also refuted by the other side, Further contention of petitioner side is based on the assumption that whole proceedings recorded in the matter are completely "nullity" in the eyes of law being totally without jurisdiction for want of Arbitration clause in the original agreement. In reply to this learned counsel for respondent argued that this point cannot be agitated at this belated stage in the exercise of revisional jurisdiction. Lastly it has been stressed that despite specific request no document or record of the proceedings conducted by the Arbitrator has been pro?duced. Moreover Arbitrator has not applied his mind in giving the award, because it is "stereotype" and carbon typed copy of the previous two awards given by same Arbitrator to two other matters which are also subject‑matter of consideration in Revision Petitions Nos. 23 and 24 of 1977. . Moreover respondent could not invoke provisions of sections 8 and 20 of Arbitration Act at the same time therefore, original application by itself was incompetent. ' All these points are interdependent. I will, therefore, record my reasoning on all these aspects together. It has been canvassed, that application under sections 8 and 20 of Arbitration Act can be simultaneously instituted. Minute examinations of these two provisions indicated that although ultimate effect of both these provisions is the same yet they differ in material particulars as regards procedure for achieving said object. Subsection (1) of section 20 of Arbitration Act specifically envisages that proceedings. under this provisions can be drawn instead of action under Chapter

11. Bate perusal of section 8 pre‑supposes, availability of agreement containing arbitration clause and failure of the parties to appoint Arbitrator, according to its requirements, when after notice appointment can be sought by the Court, within the terms of Arbitration Agreement. However, when party does not opt to record proceedings under Chapter 11, which includes section 8 of Arbitration Act and instead thereof invokes jurisdiction of section 20 than it is apparently obligatory within subsection (3) of said provisions to ensure filing of Arbitration Agn ement to the Court before initiating further steps regarding appointment of Arbitrator, and reference of the dispute for disposal in accordance with Arbitration clause. Evidently law provides an option to the aggrieved party to apply under Chapter 11 or instead thereof to seek remedy under section 20, in which case however no notice provided for under section 8 would be needed. Iii the circumstances when application under section 20 can be filed only instead of taking steps under Chapter 11, as specifically prescribed in subsection (i) of section 20 therefore, contention of learned counsel for respondent that application under sections 8 and 20 can be simultaneously instituted does not appear to be well founded. However, in the peculiar circumstances of the case, it would not be necessary to decide whether original applica?tions be treated under section 8 or section 20 of the Arbitration Act. Next it may be seen that petitioner while seeking setting aside of award had inter alia pleaded that ; (i) the Court at Quetta had no territorial jurisdiction, (ii) application seeking reference to Arbitration under sections 8 and 20 of the Act was barred by time, (iii) there did not exist? any arbitration clause in the agreement, (iv) trial Court decided the issue of limitation without affording opportunity to lead evidence and (v) that arbitrator omitted to take into consideration claim of petitioner. However, perusal of reply, dated 26‑5‑1977 filed by respondent indicates that aforesaid contentions have been refuted mainly on legal pedestal asserting that all these objections were beyond the scope of section 30 of Arbitration Act. Apparently there is no specific denial as regards jurisdiction of trial Court to entertain main application. In fact respondent has merely challenged the propriety and validity of such objection petition. In the same way even during arguments it hag been emphasized that unless objections to the award were filed within prescribed period of limitation, trial Court could not consider the same. Additionally it has been can? vassed that points which were not raised before Trial Court, cannot be permitted to be raised at this stage. No doubt it is true that question of limitation for filing the objection to the award is of fundamental importance and question pertaining to is conduct of Arbitrator or the factum of award having been improperly procured, could be raised only within the period of limitation specified by law. There is however unanimity of view, that section 5 of Limitation Act does not apply for condoning the period in filing objections to the award. Therefore, it is always obligatory for the Court to satisfy itself whether an application seeking to set aside the award has been filed within time available under the law or not. Additionally before proceeding to pronounce judgment trial Court is bound to fully satisfy itself whether a all, there exists any cause to remit the award. Thus, it is a mandatory requirement to ascertain if any illegality is apparent on the face of record which thus may effect its validity or render it coram non judice or whether any substantially unjust or materially irregular action constituting glarrn violation of law exist which may frustrate very basis of the award. Evidently the trial Court enjoys plenary powers, to examine validity of Award taking into consideration requirements of section 16 of the Act, and thereby to determine whether or not there exist any cause to remit. This power is apparently in addition to and not in derogation of authority vested in the Court for disposing of objection filed by the party within the purview of section 30 or 33 of Arbitration p Act. The phrase "whether the Court sees no cause to remit the award" appearing in section 17 has to be given meaning to and same is required to be independently interpreted. Therefore, keeping into consideration all these factors and circumstances, I am inclined to observe that if any, Jurisdictional defect. lack of authority, excess of exercise of power.` material irregularity, which is apparent on the face of it has been pointed out in that event trial Court cannot close its eyes to such inherent jurisdic?tional defects or patently illegality or glaring violation of law. It thus obviously becomes obligation of the Court to ensure whether or not any cause to remit the award in accordance with section 16 existed or not. If the Court is legitimately satisfied that there is no cause to remit or nothing apparently vitiates the "Award", only then judgment would be pronounced to which decree may follow. I am afraid that in the instant case trial Court has unjustifiably ignored this aspect of authority vested in it by law and has only mechanically dealt with question of limitation, which in the circumstances is erroneous. Moreover question of limitation is always a mixed question of law and fact, therefore, trial Court acted illegally in deciding the issue of limitation without providing opportunity for leading evidence to the Petitioner. The impugned decree is, therefore, apparently defective on this score as well. Reference in support of above view can be had from following decisions :‑ (i) Cause to remit. (i) Balawal Khan v. Capt. Muhammad A lam Khan acrd others P L D 1956 Lah. 494. "I have no hesitation in repelling the contention of learned counsel. An award which is not valid must be invalid. There is no third category. The legislation has conferred a jurisdiction on the Court to‑ get the defects in some of the invalid awards cured i. e. if the defect is covered by the provisions of section

1. It will be observed that in the Arbitration Act of 1899, there was no limitation on the power of the Court to remit the award. It could be remitted for reconsideration whatever the defect in the award. Section 13 of the Act of 1899, for which the present section 16 has been sub?stituted, ran thus "(1) The Court may, from time to time remit the award to the consi?deration of the arbitrator or umpire. (2) Where an award is remitted under subsection (1) the arbitrators or umpire shall, unless the Court otherwise directs, make a fresh award within three months after the date of the order remitting the award." If, I were to accept the argument of learned counsel for the petitioner then even if the award were to result in a decree which would be, on the face of it, illegal, for instance, a decree of a kind which neither Court nor arbitrator could pass, the award would be valid and a decree would have to be passed. The award might grant a decree for the custody of the wife to the husband., It may pass a decree for the defendant being subjected to physical violence. Still, according to learned counsel, the award would not be invalid, though it could be remitted, for it would be covered by clause (c) of section 16(l ). A simple reply to the argument of learned counsel on this point is that the provision for remission is discretionary and not obligatory, as was held Choohur Singh v. Jeet Singh and Chunda Singh ; Sita Ram, v. Dhani Ram s and Sant Singh and others v. Jiwan Singly These judgments imply that the award which is not remitted is being set aside. In any case, if we interpret section 16 as discretionary there is an end of the argument of learned counsel. According to.him a decree must be passed on the basis of every award which A not set aside and only an invalid award can be set aside. So, according to learned counsel, if the Court does not think it fit to remit the award for reconsideration the result would be that a decree would have to be passed. This position is wholly untenable." (ii) Messrs Naseem Bhai & Co. v. Messrs Pak Jute Balers Ltd. P L D 1965 Dacca 258. "At the hearing of the Rule, Mr. Asrarul Hussain appearing for the petitioner. has urged that the award not having been set aside, the learned Subordinate Judge had no jurisdiction to remit the arbitra?tion proceedings back to the Tribunal of Arbitration. He has further argued that the remitting of the award on the ground of non‑service of notice is not permissible under section 16 of the Arbitration Act, 1940. We have examined the order passed by the learned Subordinate Judge and it seems to us that he has not given any decision on various points that were raised before him, in view of the fact that he has come to the conclusion that there had been in the eye of law, no determination in the absence of petitioner, by the Tribunal of Arbitration of the points which it was called upon to adjudicate. He has come to a finding affirmatively in favour of the defendant? petitioner that thev did not receive notice of the proceedings. He, therefore, passed the order which has been impeached before us. On an examination of the aforesaid order, we are of the opinion that the position resolves itself, thus: It is true that the award purports to determine the issue which the Tribunal of Arbitration was called upon, to determine; but since such purported determination of the issue was made behind the back of the defendant‑petitioner, they cannot be treated as legal determination of those issues. In our opinion this is the only sensible view which can be taken of the matter. An adjudication made behind the back of the parties is no adjudication at all in the eye of law. In these circumstances we think that it is permissible to remit the award back to the Tribunal of Arbitration inasmuch as legally there has been no determination of the issues raised before it". (iii) Deo Narain Singh and others v. Siabar Singh and others A I R 1952 Pat. 461. "These two objections, therefore, in my opinion must prevail. The order of the Court below adopting the award a.; a rule of the Court and passing a decree on the basis of the award is without jurisdiction and must b: set aside. . The mere fact that an objection was not filed by any of the parties to the award does not altogether absolve the Court from its responsibility of deciding whether there was a competent reference and whether the award was a valid award on the face of it. There are matters which really go to any objec?tion by the parties, these matters had to be decided by the Court before a decree could be passed on the basis of the award. Section 16(1)(c) of the Arbitration Act itself provides for sach a case, namely, where an objection to the legality of the award is apparent on the face of it then the Court may either remit the award or may supersede it and proceed to decide the suit on merits." (iv) Messrs Badri Narayan Agarwala v. Messrs Pak Jute Balers Ltd.P L D 1970 S C 43. "The only other question that remains to be considered is whether in the absence of an independent application filed under section 33 of the Act the present question could be raised in the suit filed for making the award the rule of the Court. . ?? ‑ Section 17 of the Act lays down that where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award the Court shall after the time for making an application to set aside, the award has expired or such application having been made, after refusing it, proceed to pronounce judgment. Section 30 enumerates the grounds for setting aside an award. The section reads as follows :‑ "An award shall not be set aside except one or more of the following grounds namely :‑ (a) that an arbitrator or umpire has misconducted himself or the proceedings; (b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35; (c) that an award bas been‑ improperly procured or is otherwise invalid." The appellant in the present case wants the award to be set aside on the ground that he did not execute the agreement which contained the arbitration clause. His case is that there was no valid reference. In my view such a relief comes within the purview of the expression "otherwise invalid' occurring in clause (c) of section 30, no doubt, uses the word "challenge as compared to the words "set aside" in section 30 but that in my view does not make any difference. Section 33 says also that when the existence of the agreement is challenged "that Court shall decide the question". These words read with the word "challenge" clearly empower the Court to set aside the agreement. In setting aside the agreement, after an award has been made on its basis, the Court set aside the award also and such a power is referable to section 30 in view of the expression "otherwise invalid" contained in clause (c) of section

30. According to me, therefore, since the agreement in question was challenged by the appellant after the award had been made there was no bar for him to do so in the present suit. The view of the Courts below that such a relief could be had only by a suit is, therefore, wrong. In the result the judgments and decrees of the Courts below are set aside. The case is remitted to the trial Court to determine whether the appellant had executed the‑contract." In the light of above discussions it is to be seen whether proceedings under the provisions of Arbitration Act were competently instituted, and the Court had jurisdiction to entertain the same. !t is vehemently urged/ that 'contract" agreement executed between the parties does not contrarily any Arbitration clause. This factual position has not been specifically controverter by respondent in his reply dated 26‑5‑1977. Factually desire ability of raising this objection at such belated stage has been serious) questioned. In order to properly appreciate the effect of pleadings provisions of Order VIII, rule 5, C. P. C. are relevant whereby it is evident that if allegations are not specifically denied same shall be deemed to have T been admitted. Necessary, natural inference thus would be that there was no arbitration clause in the contract. In this view of the matte it becomes important to examine whether Court was vested with jurisdic?tion to be adjudicated upon the alleged dispute within the purview o section 8/20 of Arbitration Act. It needs hardly to be emphasized that proceedings to settle the differences by way of arbitration is outcom of an arrangement mutually arrived at by the parties. In the given circumstances parties voluntarily accept the decision of such arbitrator to be bindings on them whether they agree with his findings or not. Thus disputes, which normally fall within exclusive domain of civil Court are obviously withdrawn by virtue of such arrangement from their ambit U_ for determination and settlement by, domestic tribunals. In the circum. stances for invoking jurisdiction of the Court for appointment of Arbitrator or reference of dispute whether under section 8 or 20 pre‑suppose existence of written arbitration clause in the contract agreement. Consequently, unless there exists an arbitration clause, it cannot be conceived that any application under section 8 or 20 of Arbitration Act can at all be filed in any Court. In such circumstances if any proceedings are initiated under Arbitration Act same would be without jurisdiction. a such completely quoram non judice Apart from absence of specific denial, copy of contract agreement is attached with memo of petition V which prima facie indicates that it does not provide arbitration clause. It may be mentioned that para. 30 of said agreement does not constitute Arbitration clause as held by the High Court Karachi in Civil Suit No. 81 of 1971 Karamatullah Awan v. The Province oJ' Baluchistan and others decided on 26‑9‑1972. Relevant observation whereof are reproduced for ready reference :‑ "The question is whether this clause constituted an arbitration agreement between the parties in accordance with the definition of "arbitration agreement" contained in section 2 of the Arbitration Act, 1940, according to which such an agreement means a written agreement to submit present or future differences to arbitrations whether an arbitrator is named therein or not. An identical question arose in the Sind case Des Ram v. Secretary of State A I R 1936 Sind 201, in which the clause under consideration read as follows :‑ "Except where otherwise specified in the contract the decision of the Superintending Engineer of the Division for the time being shall be final, conclusive and binding on all parties to the contract upon all questions relating to the meaning of the specifications, designs drawing and workmanship or materials used on the work or as to any other questions, claims rights, matter or thing whatsoever in any way arising out of, or relating to the contract, designs drawings, specifications estimates, instructions, orders, or these conditions or otherwise concerning the work, or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof, or the contract by the con?tractor, shall be final, conclusive and binding on the contractor." Undoubtedly sections 8 and 20 of Arbitration Act, explicitly presupposes existence of Arbitration Clause, whether in the event of appointment of arbitrator or direction for reference of the matter to Arbitrator, with the intervention of Court. As a result of the same it is quite evident that in the absence of Arbitration clause application under sections 8 and 2 was totally incompetent therefore apart from the defect regarding territorial jurisdiction the proceedings drawn up in the matter without their being arbitration clause are deemed to be nullity in the eyes of law accordingly all steps taken .in the matter including reference to Arbitration, and judgment and decree passed by the Court, inherently suffer from lack o jurisdiction as such are void and of no legal effect. Thus all the superstructure raised thereon automatically falls to the ground alongwith it There is plathora of case‑law wherein effect of proceedings and orders found to be void or coram non judice have been considered. However, in support of above observations reliance is placed on the following reported judgments. YousuJ' Ali v. Muhammad Aslam Zia and others (P L D 1958 S C 104), Syed Ali Abbas and others v. 1'ishan Singh and others (P L D 1967 S C 294), Rashid Ahmed v. The State (P L D 1972 S C 271), Nawab Syed Raunaq Ali v. Chief' Settlement Commissioner and others (P L D 1973 S C 236), Sind Employees' Social Security Institution v. Dr. Mumtaz Ali Trtj and others (P L D 1975 S C 450), Khuda Bakhsh v. Khushi Muhammad and others (P L D 1976 S C 208), S. Mushtaq Hassain Shah v. Riaz Muhammad Hazarvi and another (P L D 1978 Kar. 612), Mistri Abdul Ghafoor v. Mst. Meraj Begum (P L D 1980 Lab. 414). Besides admittedly contract was executed at Panjgoor, and contract was also carried out there. In the circumstances Courts at Quetta had no territorial jurisdiction to adjudication upon the matter. Accord?ingly in view of observation in The Board of Contra for Cricket in Pakistan v. Messrs Sind Cricket Association, Hyderabad (1980 C L C 683?????? ), Colony Thai, Textile Mill Ltd. v. Messrs Zahid and Brothers (1982 C L C 1409) and Agha Mahboob Shah v. Balu?ehistan through .Secretary Government and others (P L D 1982 Quetta 84), There is no doub in observing that proceedings were not validly instituted at Quetta . This aspect coupled with above discussion obviously renders all the proceedings recorded in this matter, to be without lawful authority. It has been strenuously debated, that trial Court has not adhered to requirement of law either under section 8 or 20 of Arbitration Act in conducting proceedings in this matter. Irrespective of the arguments whether application should be treated under section 8 or section

20. One thing is quite clear that either copy of agreement ought to have been filed by respondent or its production from petitioner should have been sought within the purview of section 20 of Arbitration Act. But unfor?tunately necessary requirements have not oven followed at all in the matter. Strangely enough proceedings b.‑fore trial Court and Arbitrator have been recorded without taking into consideration the contract agreement and extent to which dispute was referable to arbitrator and without examining whether or not any arbitration clause at all existed. Obviously such blind actions would be contrary to spirit of law and justice therefore cannot be conveniently ratified merely on technicalities. Lacuna in the proceed?ings are apparently fatal and would certainly cause prejudice to the effected party. Having thus concluded that proceedings drawn up in the matter besides constituting material irregularity but are in fact coram non judice In such view of the matter the question about filing of objection to this award beyond period of limitation will not be relevant. Moreover on account of peculiar situation of this case question of limitation has not been correctly dealt with. Evidently relevant law and attending circum?stances have beets incorrectly assessed. Additionally failure to allow B petitioner an opportunity to lead evidence to explain factor providing exemption to the delay if any is by itself a material defect constituting serious irregularity and patent illegality to nullify the impugned decreeon this score alone. It is now well settled that when proceedings are found to be void and coram non judice the limitation would not apply at all. In this behalf reliance can be placed on the observations in following cases :‑ ??????????????????????? 1 (!) Hussain Bakhsh and others v. Settlement Commissioner and others P L D 1969 Lab. 1039. (ii) Syed Ut

962. In the light of observations in the above reports, conclusion arrived at by the trial Court in the impugned judgment is apparently defective and erroneous. Learned counsel for respondent seriously objected to the pleas raised on behalf of petitioner contending that same could not be permitted at appellate or revisional stage. In this behalf superior Courts have con?sistently held that new pleas concerning question of fact or where equity is needed cannot be entertained, at appellate or revisional stage. Never?theless if new plea concerning jurisdiction of the Court or validity of the proceedings is based on pure question of law or defect in proceedings apparent on the face of record, or validity of proceedings based on admitted facts witho4 any inquiry in that event same could always be gone into and allowed to be raised at any stage for effective disposal, to meet E ends of justice. In this behalf, I am fortified by the observation in the following cases :‑ (i Muhammad Stvaleh and another v. Messrs United Grain and Fodder Agencies P L D 19o4 S C 97. (ii) Haji Abdullah Khan v. Nisar Muhammad Khan P L D 1965 S C 69. (iii) Mansab Ali v. Amir and d others P L D 1971 S C 124. (iv) Maj. Syed Walayat Shah v. Muzaffar Khan and others P L D 1971 S C 134. (v) Rashid Ahmed v. The Sate P L D 1972 S C 271. (vi) Sub.‑Major Fazal lllahi v. The State P L D 1978 S C (A J & K) 80. (vii) Pakistan Tobacco Co. Ltd. v. Karachi Municipal Corporation P L D 1967 S C 241. (viii) Malik Rahmatullah~ and another v. Mian Muhammad Shafi and another 1986 S C M R 496. (ix) Maulvi Abdul Hamid v. Sabzal and others P L D 1985 Quetta I. (x) Malik Muzafar Khan v. Government of Punjab through Chief Secretary Putrjab Lahore and others 1980 C L C

384. It is strenuously argued by learned counsel for respondent, that pro?ceedings conducted by domestic tribunal cannot be questioned and arbitrator was not bound to adopt detailed procedure for dealing with dispute between the parties, besides according to him claims of parties, has been thoroughly considered which shows proper exercise of authority by the Arbitrator. He maintained that production of agreement before Arbitrator or the Court wits not necessary, because the parties appearing before the Arbitrator were conscious of limits 'of the dispute. There is no cavil to the proposition of law that arbitrator can adopt his own procedure and is not bound by technicalities, or cumbersome procedure applicable for the disposal of case before judicial forums. At the same time, it cannot be assumed, that arbitrator would merely grope in the dark, or would decide by which guess or toss. He is obviously to record some proceeding and adopt some criteria for arriving at final conclusion specially when matter at variance relates to examination of huge record concerning and numerous items. However, in the present case it is a strange phenomenon that neither copy of contract was placed on record, nor production of original document was sought, nor the terms or nature of dispute was determined nor scope: of reference was specified, nor claim of respondent is available on record nor all the questions raised in the pleading were at all considered by arbitrator. It is merely guess work, as to what proceedings must have been recorded by the Arbitrator because no such document except the award has been placed on record. It is not indicated in what manner as on what basis or formula claim of respondent has been accepted by the Arbitrator. It is also not ascertainable whether or not it is in accordance with terms of the "contract agreement" or is calculated on higher rates., here is thus complete confusion and patent misexercise on authority which does not indicate any standard or basis on which conclusion for the award were arrived at by the Arbitrator. Though at the time when award in this case was given relevant law did not contain that arbitrator should, give his reasons, yet it is normally expected that decision pertaining to various items seriously disputed concerning huge amount of claim would contain some logic, reasoning and plausible explanation of circumstances finding favour with the Arbitrator. There is an additional factor which also leaves an impression that Arbitrator has not applied his independent mind. There are two connected cases i. e. Revision Nos. 23 and 24 of 1977, in which except for certain legal points, facts are almost the same. Incidentally decree passed by the trial Court in said cases is separately consideration of this Court. It is not out of place to mention that those matters were also referred to the same arbitrator by a common order dated 3‑10‑1974, but award were given to him on 21‑4‑1975 and 20‑8‑1975 respectively. It is interesting to note that operative portion of the award in all three cases is verbatim the same which is reproduced :‑ "Several proceedings were held and the arguments put forth by the parties were heard. Documentary evidence shown and submitted by the parties on various dates in support of their case, were examined and discussed in detail. After and inconsequence of bearing all the statements, evidence and proof produced by the parties and on the basis of admission and verification from the record and also carefully considering the entire case, I make and declare this Award." It cannot be believed that all these three occasions whenever learned Arbitrator set to decide the dispute exactly same words, without change of even punctuation were visualized by him. In my opinion it shows that said operative portion was copied to a stereotype manner, without independent application of mind to the facts of or circumstances of each case. Evidently as regard factual conclusions absolutely no reasoning or basis have been given in the award. It is further queer to note that one of the items of dispute concerning business loss for withholding payment, in which results should have been the same but learned Arbitrator arrived at different conclusion. Cumulative effect of all these material irregularitiesJt1 obviously vitiates the award. In the light of above discussion I record my findings as under :‑ (i) Appeal as well as Revision filed by the petitioner is maintainable to the extent of, limits respectively prescribed by law. (ii) For purpose of court‑fee appeal under section 39 of Arbitration Act is regulated by Article 11, Chapter II of the Court Fee Act. (iii) Whereas court‑fee, in the matter of Revision petition, challenging the "Decree" passed on the basis of Award is chargeable on ad, valorem Basis". (iv) Section 8/20 of Arbitration Act cannot be simultaneously invoked. As specifically provided in section 20 of the Act, said provision can be invoked only when aggrieved party does not opt, to commence proceedings under Chapter 11 of the Act. (v) Original application filed by respondent on 21‑8‑1973 under sec?tion 8/20 of Arbitration Act before trial Court was, illegally instituted for want of territorial jurisdiction as well as absence of "Arbitration clause in the Contract Agreement dated 8‑6‑1960 forming basis of the claim ; consequently all the proceedings recorded in the matter are without lawful authority and coram non judice, as such are of no effect. ' (vi) Without prejudice "decree passed" on the basis of Award in this) matter is even otherwise, improper and defective on merits, besides being violative of law. (vii) Petitioner is liable to pay Court‑fees on "Ad valorem Basis". However, taking into consideration principle of law enunciated in case Siddique Khan v. Abdul Shakoor Klan and others P L D 1984 S C 289 and Malik Rahmatullah v. Mian Muhammad Shah 198 t S C M R 496 two months time is granted to the petitioner to make up the deficiency. This Revision Petition is thus accepted, subject to payment of court fees within a period of two months as directed above. It is however, clarified that on the failure of petitioner to make up deficiency within specified period of two months, decision arrived at in the matter shall cease to be operative. ?????? In the circumstances "Appeal No. 6 of 1977 as well as Revision No. 25 of 1977 is disposed of in the above terms. ?????? Parties are however, left to bear their own costs. ??????? M. M.H??????????????????????????????????????????????????????????????? Petition accepted.