2001 PLP 362 (YLR)

Date of hearing: 5th December, 2000. The instant petition as also C.R. No.575 of 1986 and C.R. No.2161 of 1985, are being disposed of together, as these arise out of the same orders; are between the same parties and involves common question of law and facts.

2. Briefly stated the facts of the case are that the dispute between the parties relates to a House No. 66‑A, Satellite Town Scheme, Gujranwala; the petitioner claims to be the owner of the said house, while claim of the respondent is otherwise. Petitioner filed a suit for declaration seeking the relief of declaration of his title, while Mst. Hamida Bano, respondent filed a suit for possession under section 9 of Specific Relief Act, alleging that she had been illegally and unlawfully dispossessed from the suit property. Anyhow, during the pendency of both these cases, the matter was referred to the arbitration of Mumtaz Hussain Malli Advocate, Col. Gul Sher and S.M. Almas Ali, Advocates. The arbitrators on 20‑5‑1974 gave two separate awards. In the suit for declaration filed by the petitioner, the award was given in the following terms:‑ "The claim of Abdul Majid Qureshi, is, therefore, dismissed and the declaration, sought for, is not granted." In the other, suit filed by Mst. Hamida Bano, the arbitrators gave third award as under:‑ "The claim of Mst. Hamida Bano to possession of Bungalow No. 66‑A Satellite Town, Gujranwala, is accepted. As stated above, the parties to bear their own costs. "

3. Petitioner filed objections to both these awards under the provisions of sections 30 and 33 of the Arbitration Act, 1940, the objections filed in the award pertaining to declaratory suit has been dismissed by the learned Civil Judge, vide order dated 16‑7‑1980, holding that the petitioner has neither furnished the security nor deposited the amount in terms of second proviso to section 33 of the Arbitration Act, and the award was made rule of the Court on 15‑10‑1980. While in the other matter i.e. suit for possession, the objections to the award were not specifically that with or disposed of but by making reference to the rejection of objections in the other suit for declaration, the award has been made rule of the Court on 15‑10‑1980.

4. The petitioner filed three appeals against the above. Learned Appellate Court, in the case pertaining to the declaration, has rejected the appeal by holding that it is barred by time, while the two appeals have been dismissed as being incompetent, because according to the learned Judge, no appeal lies against the order making the award rule of the Court.

5. Learned counsel for the petitioner contends that the rejection of his objections in the suit for declaration on the touchstone of second proviso of section 33, are absolutely misconceived, because this proviso is only applicable to the award pertains to money matter and not to the case where the declaration is granted by the arbitrators regarding the immovable property. Besides, the proviso repealed in the year 1977, thus the order rejecting the petitioner objection was void, against which, there is no period of limitation. 5‑A. I have heard learned counsel for the parties and concur with the submissions made by learned counsel for the petitioner, that the said proviso was only applicable to awards granting money and not to the instant case, moreover the proviso omitted by virtue of section 2 of Arbitration (Amendment) Ordinance, 1977 and thus, was not part of statute book, when the petitioner's objection was dismissed on the ground of non compliance thereof. In any case, the order dated 16‑7‑1980, was void ab initio. Despite the rejection of his objection on technical grounds, the petitioner still could show to the Court that the award should not be made rule of the Court, because it is the duty of the Court to see that a valid award was made by the arbitrator, notwithstanding any objections had been taken or not, thus, for all practical purpose and from the legal point of view, it is on 15‑12‑1980, when the trial Court in-fact has refused to set aside the' award, thus, giving cause to the petitioner to tile the appeal against such order. The point of time shall be reckoned from 15‑10‑1980, thus, the appeal was tiled within time and consequently could not have been dismissed on the score of limitation.

6. As regard the other two appeals, suffice it to say, thus, the learned Trial Court had not disposed of the objection of the petitioner separately, but it is only by making reference to the objection, dismissed in other' case, that through a composite order dated) 15‑10‑1980, that the Court had refused to set aside the award and made it rule of the Court. Thus, order was well within the purview of section 39(6) of the Arbitration Act, and could be validly challenged in appeal. Learned Appellate Court has failed to exercise the proper jurisdiction vested in and has taken very cursory and perfunctory view of the matter. These orders cannot be sustained. The objection of the learned counsel for the respondent that the above revision petitions are barred by time, suffice it to say that when these revision petitions were filed, there was no period of limitation prescribed by law. Normally, revisions are to be filed within a period's of ninety days, and if beyond 90 days could be dismissed on the principle of laches. But in cases, where the order passed is void an6grossly illegal, the principle of laches should not be attracted. In the light of above, by allowing these revision petitions, the impugned order/judgments of the Courts below are set aside, the matter are remanded to the learned trial Court to re‑decide the objection of the petitioner, filed on both the awards and disposed of the same in accordance with law. H.B.T./P‑46/L Case remanded.