2011 PLP 2260 (YLR)

SAGHEER AHMAD QADRI, J.

Grievance of the petitioner through this civil revision is that he moved an application for summoning of arbitrators as court witnesses which_ application was resisted by the respondent and the learned trial Court vide impugned order dated 31-1-2011 dismissed the same with the observation that the petitioner has yet to examine his witnesses and if during examination of the witnesses or production of evidence any material comes on record showing misconduct on behalf of the arbitrators then eventuality will arise for summoning of the arbitrators as witnesses in court. However, while disposing of the application vide impugned order, learned trial Court observed that as arbitrators are the judges therefore, they cannot be summoned as witnesses. Learned counsel for the petitioner on the strength of the judgments cited as PLD 1959 (W.P.) Karachi 320 S.M Fazail and Co. v. Messrs Overseas Cotton Co. and PLD 1970 Karachi 357 'Haji Tayab and 2 others v. Eastern Textile Mills Ltd. Chittagong and 12 others' argued that the arbitrators in order to prove misconduct, very much can be summoned as witnesses to reach at right conclusion by the court. Prayed that impugned order be set aside.

2. Learned counsel for the respondent on the other hand while opposing the arguments of the learned counsel for the petitioner agitated that as the petitioner so far has not examined any of the witness and it is yet to be brought on record that what type of prejudice has been caused or misconduct was committed on the part of the arbitrators and this fact has already been observed by the learned trial Court that before passing any such order on this application, petitioner must examine witnesses. Prayed that this petition being premature, it be dismissed. .

3. I have heard the learned counsel for the parties and perused the record.

4. As far as the observation of the learned trial court that the arbitrators being judges cannot be summoned as witnesses is concerned, same is not in accordance with law and the proposition has already been settled in the judgments cited by the learned counsel for the petitioner. In a judgment passed by the learned Division Bench of erstwhile West Pakistan High Court cited as PLD 1959 (W.P) Karachi 320 'S.M Fazail and Co. v. Messrs Overseas Cotton Co. their lordship held: "We consider that in cases where allegations are made by parties against an umpire or arbitrator, it is always better to examine the umpire or arbitrator as Court witness and it would have been much better if the umpire would have been called as a Court witness to meet the allegations made against him in respect of partiality." This view was further adopted in another judgment by the learned Division Bench of Karachi High Court cited as PLD 1970 Karachi 357 Haji Tayab and 2 others v. Eastern Textile Mills Ltd., Chittagong and 12 others. On the strength of the above cited judgments, this observation is set aside. As far as' remaining part of the arguments by the learned counsel for the petitioner is concerned, as the learned trial court has itself observed that the petitioner is yet to examine witnesses and to bring on record a positive evidence that what type of prejudice caused or misconduct was committed by the arbitrators therefore, to that extent, it is directed that the petitioner may examine his witnesses and lead evidence and if a positive evidence is brought on record to prove prejudice, then the learned trial Court on the fresh application moved by the petitioner shall dispose of the same in accordance with law. With this observation, this petition stands disposed of however, with no order as to costs. Learned trial Court is also directed that it being an old matter to conclude the trial expeditiously. M.H./F-20/L??????????????????????????????????????????????????????????????????????????????????????? Order accordingly.