2001 PLP 2860 (YLR)

(iv) Relief.

3. The suit of the petitioner was accepted by the learned trial Court; whereas the suit of the respondents was dismissed vide judgment and decree, dated 7‑2‑1989. The respondents tiled an appeal before the learned Additional District Judge, Faisalabad. During the pendency of the appeal, the parties agreed that the matter may be referred to Nasir Ahmad, Referee and decision of Referee would be acceptable to the parties. The First Appellate Court vide order, dated 7‑6‑1989 appointed Mr. Nasir Ahmad as Referee. The petitioner tiled an application that the matter should not be referred to aforesaid Referee on 11‑10‑1989 which was dismissed by the First Appellate Court vide order, dated 11‑7‑1990. The Referee had recorded his statement before the First Appellate Court on 15‑9‑1990. The First Appellate Court modified the decree of the learned trial Court on the basis of statement of the Referee vide impugned judgment and decree, dated 15‑9‑1990. Hence, the present revision petition.

4. Learned counsel of the petitioner submits that question requiring determination in this revision petition is whether the petitioner could resile from his agreement to refer the dispute to a Referee before the statement of the Referee was recorded. He further submits that the First Appellate Court could have called objections from the parties and thereafter decided the matter in accordance with law, but the First Appellate Court did not adopt this procedure, therefore, the judgment of the First Appellate Court is not in accordance with law laid down by the Hon'ble Supreme Courts. In support of his contention, he laid down upon the following judgments:‑‑‑ Muhammad Khalid v. A.T.M. Corporation Ltd. 1988 CLC 2359, Ghulam Farid Khan v. Muhammad Hanif and others 1990 SCMR 763 and Mehr Din and 2 others v. Siraj Din and 2 others PLD 1980 BJ 5.

5. Learned counsel of the respondents submits that facts narrated by the learned counsel of the petitioner, are not correct. The vehicle in question was sold by the petitioner to respondents Nos. 1 and

2. He further submits that by virtue of section 5 of the Arbitration Act, the petitioner once consented to refer the matter to the Arbitrator then the petitioner has no authority under the law to resile from his consent. He further submits that the petitioner filed an application for cancellation of the appointment of the aforesaid Referee on 11‑10‑1989 which was dismissed by the First Appellate Court vide order, dated 11‑7‑1990. He further submits that the petitioner has not given any document to show that the petitioner is owner of the vehicle in question. He further submits that First Appellate Court has rightly modified the judgment and decree of the learned trial Court through the impugned judgment and decree. He further submits that the petitioner failed to point out in the impugned judgment and decree any illegality and infirmity of the First Appellate Court.

6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

7. It is better and appropriate to reproduce the statement of Referee, dated 15‑9‑1990 to resolve the controversy between the parties:‑‑‑ On the basis of aforesaid statement of the Referee, learned Additional District `edge did not decide the appeal on merits on the ground that the parties voluntarily .agreed to resolve their controversy through a Referee on 6‑7‑1989 and finally modified the judgment and decree of the learned trial Court vide impugned judgment and decree, dated 15‑9‑1990 in the following terms:‑‑‑ "Today, the Referee unanimously proposed by the parties namely Nasar Ahmad has put in appearance before this Court in the presence of learned counsel and the parties. He has made a statement to the effect that only Rs. 9,000 are outstanding against the plaintiff/appellant and nothing else. This decision of the Referee is legally binding upon the parties and no party can be permitted to resile from it. In view of the abovesaid statement of the Referee, the appeal of the plaintiff/appellant is partly accepted. Hence, to the extent of his suit, the appeal stands dismissed. However, the parties are left to bear their own costs." It is pertinent to mention here that the petitioner/respondent No. 2 filed an application before the learned Additional District Judge on 11‑10‑1989 that the appointment of the Referee be cancelled and appeal be decided on merits which was dismissed by the learned Additional District Judge vide order, dated 11‑7‑1990. Referee made statement before the Court on 15-9-1990. On the basis of which the First Appellate Court modified the judgment and decree of the learned trial Court. In case, the aforesaid circumstances are put in juxtaposition then the petitioner applied for revocation of the appointment of the Referee before his statement was recorded. It is settled principle of law that decision to be bound by the statement of the Referee is out-come of a contract and parties will be at liberty to revoke it before it is act upon as per principle laid down by this Court in case of "Sher Zaman v. Noor Zaman Khan and another" (PLD 1977 Lahore 672). The impugned judgment is not in accordance with law laid down by the superior Courts, therefore, the same is not sustainable in the eyes of law. It is pertinent to mention here that the statement of the Referee aforesaid is not clear but it is ambiguous. It is settled principle of law where the statement of a Referee is not clear but ambiguous, then the Courts can hold further proceedings in the matter instead of deciding the controversy between the parties on the basis of the statement of the Referee. In arriving to this conclusion, I am fortified by "Mehr Din's case (supra)" (PLD 1980 BJ 45).

8. For what has been discussed above, this revision petition is allowed and the impugned judgment and decree is set aside and the case is remanded to the learned trial Court to proceed in the matter in accordance with law from the stage of the revocation of the appointment of the Referee.

9. Parties are directed to appear before the First Appellate Court on 18-10-2001, who is directed to decide the appeal of the respondent on merit. The matter is pending adjudication between the parties since long, therefore, he is directed to finalize the same within six months preferably after receiving the order of this Court. With these observations, the civil revision is disposed of. H.B.T./F-72/L Petition allowed/Order accordingly.