1992 PLP 853 (SCMR)

2. An application wider section 33 of the Arbitration Act and section 12(2) of the C.P.C. with regard to consent decree passed as a result of the disputed arbitration proceedings, was dismissed by the trial Court. The petitioner approached the District Court and the order of the trial Court was set aside. The High Court in its writ jurisdiction having set aside the order of the District Court restored that of the trial Court.

3. The facts given in somewhat detail in the impugned, judgment are as follows:‑‑

4. The petitioner Sh. Hanif Ahmad (respon4ent herein) allegedly purchased the land in dispute from the respondent Yasin (petitioner herein) for purposes of its further sale in the shape of residential plots. The transaction was purposely not evidenced through any formal sale‑deed and instead the vendor was claimed to have executed an irrevocable power of attorney dated' 2nd of March, 1981, in favour of the vendee's wife Mst. Parveen Akhtar so that she could conveniently pass on title in favour of any random customer of the plots as and when an occasion arose. Stating an arbitration agreement was reached between the parties on the 1st of June, 1985, in pursuance of which the petitioner (respondent herein) made an application under section 14 of the Arbitration Act to the Civil Court for a direction to file the award. The respondent (petitioner herein) seemingly conceded the agreement, appointment of the arbitrator, and also the award dated the 2nd of June, 1985, which upon being made rule of the Court resulted into a consent decree dated the 25th of June, 1985.

5. The respondent (petitioner herein) challenged the said decree by an application, dated the 3rd of December, 1985, made under sections 12(2) and 151, C.P.C. read with section 33 of the Arbitration Act denying altogether to have executed any power of attorney in favour of the lady or signed any arbitration agreement or accepted any award, or consented to the same being made a rule of the Court. His version was that all those documents were fake, forged, without consideration, without his consent, mala fide, void and as such ineffective against his interest. He added that the sale of the land made on his behalf by the lady as his attorney in favour of the petitioner Hanif (respondent herein) was of no effect especially because he had yet not acquired proprietary rights in it, nor was it partible, nor had the learned Civil Judge pecuniary, competence to take seisin of the case.

6. The petitioner (respondent herein) contested the application on facts and law. He affirmed the genuineness of the sale, payment of the consideration amount, the power of attorney, arbitration agreement, the award and its having been made rule of the Court. Additionally, he maintained that the application was frivolous, without cause of action, barred by time, and legally incompetent.

7. The trial Court dismissed the application while the learned Additional District Judge allowed it in appeal and hence the present writ petition".

8. Learned counsel for the respondent while relying on Messrs Combined Enterprises v. Water and Power Development Authority, Lahore (PLD 1988 SC 39) objected that neither section 12(2) of the C.P.C. nor "indeed the entire C.P.C." was applicable to such arbitration award and that the provisions authorising to challenge them were sections 30 to 33 of the Arbitration Act. The learned Judge in an elaborate discussion regarding the technicality as to whether the application before the trial Court was to be made with one heading or the other or under one provision of the Arbitration Act or the other, came to the conclusion that some similar requirements of procedural law not having been followed the petitioners could not have at all been given any relief. It appears that the learned Judge did not set aside the findings of fact by the learned District Court rendered in favour of the petitioner and against the respondent. And thus, it can be safely assumed that notwithstanding the correctness of such serious findings, the learned Judge was of the view that procedural errors having been committed he was perhaps bound to set aside the decision reached in the hierarchy of Civil Courts, in the High Court's discretionary writ jurisdiction. In order to appreciate the gravity of allegation of fraud allegedly committed in this case it would suffice to reproduce what the learned District Judge himself observed from the record. It is as follows: "Adverting to general power of attorney Exh. R.I. it carries four signatures of appellant, two in black ink and two in blue ink. All the four signatures of appellant on Exh.R.I. are different from each other." In the similar context the following observation is also worth noticing:‑‑

"It is also admitted that against Entry No.351 there was no thumb-?impression of Yasin though it bears his signature, but in second register against entry of general power of attorney neither there were signature nor thumb‑impression of appellant."

9. When all this was put to the learned counsel for the respondent, even then he vehemently opposed the grant of leave to appeal in this case. He while attempting to defend the High Court approach, in so far as the merits are concerned only relied on the fact that the trial Court had rendered a decision in that behalf in favour of the respondent. Thus he was of the view that the case of the respondent in this behalf could be defended; in that, one Court had decided in favour of the respondent while the next higher Court decided in favour of the petitioner.

10. After hearing both the learned counsel we think that it would require examination that in a case like the present one: whether when deciding a writ petition an appellate judgment of a Civil Court giving strong positive findings on the issues of fraud against the respondent, could be set aside. It would also require examination: whether, the learned Judge in the High Court correctly interpreted the judgment of this Court in the case of Messrs Combined Enterprises. We made some comments about the interpretation of the said judgment by the same learned Judge in the Civil Petition No.505 of 1989 (Province of Punjab v. Syed Imtiaz Hussain). It was not found necessary, however, to finally adjudicate this aspect in the said case. Here in the circumstances of the present case it would need examination. It would also require examination whether the learned Judge should at all have exercised discretionary jurisdiction under the Constitution to issue a writ in a case like the present one and that if the discretion was to be exercised it should have been in favour of the present petitioners.

11. In the alternative it would need serious examination: whether acting on well accepted rules and practice of the superior Courts as also the trial Courts, the wrong nomenclature of proceedings before any Court which otherwise had jurisdiction to entertain the same and give verdict on merits thereof could at all be treated as real bar to grant of relief in accordance with law and jurisdiction as was done by the District Court in this case. Still more it will need examination, whether, in case there was any error in the description of the provisions relied upon by the petitioner in his application before the District Court could it not be corrected by the District Court; or could it not be deemed to have been corrected or the High Court was denuded of any power to direct correction thereof under section 153 of the C.P.C. or was it not possible to convert one type of proceedings before the District Court into another type of proceedings, if at all the High Court wanted to set aside the District Court judgment in its discretionary jurisdiction.

12. Accordingly, for all the above stated reasons we consider it a fit case for grant of leave to appeal. Order accordingly. Security‑‑Rs.5,

000. AA./M‑1568/S??????????????????????????????????????????????????????????????????????????????????? Leave granted.