P L D 1990 Lahore 25 (PLP)

This appeal is directed against order, dated the 31st July, 1983, passed by the Senior Civil Judge, Lahore, whereby he made an award a rule of the Court.

2. The impugned award related to a dispute between the appellant, Province of the Punjab, and the respondents, M/s. MA. Rashid Said Alam Khan, which arose out of an agreement between the parties with regard to the construction of a bridge by the respondents, as contractors of the appellant. The dispute was referred to two arbitrators who gave the award in favour of the respondents. An application, under section 17 of the Arbitration Act, 1940, was, therefore, filed by the respondents before the learned Senior Civil Judge for making the award a rule of the Court. On 20th December, 1982, notice of the application was issued to the appellant calling upon it to file objections, if any. Notice was served on the appellant on 4th January, 1983 but objections to the award were not filed within the period of 30 days prescribed by Article 158 of the First Schedule to the Limitation Act, 1908. Objections were not submitted even on 5th February, 1983 for which date the said notice was issued. The case was, therefore, adjourned to 23rd February, 1983 by the learned Senior Civil Judge. In the meantime, on 17th February, 1983, the objections were filed by the appellant.

3. On submission of objections before the learned Senior Civil Judge, it was pleaded by the respondents that they were time‑barred and as such they could not be looked into. On the other hand, it was maintained by learned counsel for the appellant that since the objections were filed within the period extended by the learned Senior Civil Judge, from time to time, they could not be thrown out on the ground of limitation. View taken by the learned Senior Civil Judge was that the case was adjourned, from time to time, in routine, and that since the period prescribed by law for filing of objections, namely, 30 days from the date of service of notice of the filing of the award could not be extended by the Court, the objections were time‑barred and, therefore, not entertainable. Accordingly, he declined to examine the objections and made the award a rule of the Court.

4. Without disputing the proposition that time for filing of objections could not be extended by the learned Senior Civil Judge, learned counsel for the appellant raised three other objections to assail the order under appeal.

5. In the first instance, it was urged by learned counsel for the appellant that the award was not filed in accordance with law and, therefore, question of commencement of period for submitting the objections did not arise. His plea was that under subsection (2) of section 14 of the Arbitration Act the award could be filed by the arbitrator or by any person authorised by him in this behalf but as the award was not filed in either of these two manners there was no filing of award in the eye of law. In this connection reliance was placed by him on Amod Kumar Verma v. Hari Prasad Burman and others (A I R 1958 All. 270) and Firm Shriram Haracharandas Khamgaon v. The President, The Cotton Seed Forward Delivery Managing Association Ltd., Khamgaon, and others (A I R 1954 Nag. 236). In reply, it was submitted by learned counsel for the respondents that the provisions of subsection (2) of section 14 of the Arbitration Act were not the only provisions of law whereunder the award could be filed and that the filing of the award by the respondents, with application under section 17 of the said Act, was quite in order even though the respondents were not formally authorised by the arbitrator to file the award. He relied upon Mrs. Keays Byrne v. M. Obaidullah Khan (P.L.D. 1959 (W.P.) Lahore 140) to support his plea. In addition, he made reference to clause (a) of rule 10 of the Rules framed by this Court under section 44 of the Arbitration Act.

7. Cases of Amod Kumar Verma and Firm Shriram Haracharandas Khamgaon, cited by learned counsel for the appellant, which are of Indian jurisdiction, are based on law laid down by the Supreme Court of India in Kumbha Mawji v. Dominion of India (Now the Union of India) (AIR 1953 SC 313). These three cases were cited before the erstwhile High Court of West Pakistan, which decided the aforementioned case of Mrs. Keays Byrne, but despite that it was held by Mr. Justice Waheeduddin Ahmad, who was then Judge of the said High Court and was subsequently elevated as a Judge of the Supreme Court of Pakistan, that any of the parties may file award and a decree may be passed on the basis thereof, under section 17 of the Arbitration Act. While taking this view, reliance was also placed on clause (a) of rule 10 of the rules, framed by this Court, under section 44 of the Arbitration Act, which reads as follows:‑‑ "(a) The arbitrator or umpire or any of the parties to the arbitration may cause the award or a signed copy thereof to be filed in Court in the Drs , manner prescribed in rule No.3." In the case of Mrs. Kcays Byrne it was contended that the said rules were ultra vires of the Arbitration Act but this plea was not accepted. With due deference to the learned Judges of superior Courts of India who decided the cases of Kumbha Mawji, Firm Shriram Haracharandas Khamgoan and Amod Kumar Verma I would like to follow the law laid down in the case of Mrs. Keays Byrne, which is of Pakistan jurisdiction, and hold that there is nothing wrong with the filing of the award by the respondents.

9. It may also be mentioned here that the above contention in respect of the filing of the award was not raised by the appellant before the learned trial Court. Thus, its plea in this regard is an afterthought. It has also been found to be devoid of force. I am, therefore, unable to accept the argument of learned counsel for I he appellant that the award was not competently filed and as such question of commencement of period of limitation for submitting objections thereto did not arise.

10. Next point canvassed by learned counsel for the appellant was that the award of the arbitraots when filed by the respondents was not accompanied by depositions and documents which may have been taken and produced before them and as such it was an improper filing of the award for this proposition he placed reliance on subsection (2)of section 14 of the Arbitration Act and on Messrs M. A. Rashid and Company v. The Punjab small Industries Corporation and another (PLD 1986 Lahore 254)This is also a belated plea of the appellant inasmuch as it was not raised before the learned Senior Civil Judge. No doubt in the case of Messrs M. A. rashid Company it was held by my learned brother Abdul Waheed J that the award has to be filed alongwith any depositions and documents which might have been taken and proved before the arbitrator and it is only after the filing of the award alongwith depositions and documents that the court can give notice to the parties of the filing of award but it is regretted that attention of my learned brother was not invited to clauses (b) and (c) of rule 10 of the Rules, framed by this court under section 44 of the Arbitration Act, which read as follows:-- (b) When the award is filed by the arbitrator or umpire he shall together with the award send to the court any depositions and documents which have been taken and proved before him and the opinion pronounced by the court on the special case submitted by him, if any in accordance with section 14 of the act by forwarding the same under a sealed cover addressed to the court. He shall also send together with the award a copy of the notice given to the parties concerned and affidavit of service of such notice and of attestation of his signature on the award. (c) When the award is filed by any of the parties to the arbitration under clause (a) the party may move the court for directing the arbitrator to produce in original such of the documents as were produced before him together with the record of the arbitration. It is evident from these clauses of rule 10 that the depositions and documents referred to in sub section (2) of section 14 of the Arbitration Act. Are required to be filed by the arbitrators if the award is filed by them, but if the award is filed by a party, the party filing it is not obliged to file the said depositions and documents alongwith the award and, in that event it is for the court to call upon the arbitrators to file the depositions and documents in question. As pointed out above, the said rules have been held to be intra vires of the provisions of the Arbitration Act and not otherwise. In this state of affairs, I, with respect, regret my inability to subscribe to the view taken by my learned brother in the case of Messrs M.A. Rashid and Company and hold that the filing of the award by the respondents is not open to challenge on the ground that the award, when filed by them, was not accompanied by depositions and documents which may have been taken and proved before the arbitrators. Argument of learned counsel for the appellant in respect of the non‑filing of the said depositions and documents alongwith the award is, accordingly repelled.

11. Lastly, it was maintained by learned counsel for the appellant that notice of filing of the award was not duly served on the appellant on 4th January, 1983 and as such period of filing of objections did not commence from the said date. Notice of filing of award was received by Diary Clerk, Department of Communication and Works, Government of the Punjab, Lahore. Argument advanced by learned counsel for the appellant was that the said Clerk was not authorised to receive the notice. In this connection, reliance was placed by him on unreported judgment of the Supreme Court in Civil Appeal No. 799 of 1984 M/s. Fine Electric Corporation v. Province of Punjab and 3 others, 1989 SCMR 1467 which was delivered on 29th March, 1988. Facts of the precedent case of M/s. Fine Electric Corporation are different from those of the case in hand. In the cited case, objection with regard to service of award was taken before the learned trial Court and evidence was led in this regard. This however, is not true of the case before me inasmuch as no objection with regard to proper service of notice was raised in the instant case when it was before the learned trial Court: On the other hand, service was admitted in the case in hand. This is clear from the following sentence occurring in the order under challenge:‑‑ "Admittedly, the respondent was served on 4th January, 1983, through office." That service in the instant case was not only proper but also effective is evident from the fact that the appellant entered appearance, through the Executive Engineer concerned, on 5th February, 1983, which is the date for which the notice was issued. If there was no service effected on the respondents or it was not in accordance with law, the appellant would not have entered appearance as done by it. Nothing was produced before the learned trial Court to demonstrate that the Clerk who received the notice had no authority to do so. Even now, nothing has been placed before me to show that the said Clerk was not employed with the appellant or was not authorised to receive the notice. In the circumstances, service of notice in this case is not open to any legitimate exception. Plea of learned counsel for the appellant in this behalf is, therefore, overruled.

12. This disposes of all the contentions raised by learned counsel for the appellant which has, for nearly seven years, withheld a sum of Rs. 775,000, awarded to the respondents by the arbitrators. It is very unfortunate that the appellant did not honour the award of the arbitrators although both of them were its own employees. No doubt, the law permitted it to raise objections against the award but it did not act in time inasmuch as the objections filed by it were badly time‑barred. Strangely enough, argument addressed before the learned trial Court for showing the objections in time was abandoned before this Court and the contentions advanced before this Court were not . raised before the learned trial Court. Such like deplorable conduct of Government Departments was also adversely commented upon by the Supreme Court in Lahore Development Authority v. Messrs Khalid Javed & Co. (1983 SCMR '718) in the following words:‑‑ "In conclusion, we cannot refrain from observing that despite the declared policy of the Government for ensuring speedy and inexpensive justice we find, all too frequently, that even Government Departments and statutory bodies are indulging in wasteful and unnecessary litigation. It is at their behest that in all contracts entered into by them a clause is inserted to the effect that any dispute, which may arise during the completion of the contract between the parties, wild be decided through arbitration rather than by the ordinary Courts. It is also usually stipulated that the Arbitrators, who may be nominated for this purpose, must be the responsible officers of the said Department. It is, therefore, a matter of some regret that when an award is given by the Arbitrators, who are persons of their own choice and the award made is in a proceeding conducted in a forum desired by them but which is not !wholly in accord with their point of view the .Department of Government concerned instead of accepting the said award with good grace rushes to the Court with frivolous objections to prevent it from becoming the rule of the Court and when these objections are overruled resort is taken to Iii: ng appeal upon appeal right upto the Supreme Court which not only results in further financial loss to the Department and further delay in the settlement of the rightful claim of the private party but also in the unnecessary waste of the valuable time of Courts which could be spent far more usefully in attending to other more meritorious cases. It is high time that Government Departments should accept more gracefully the awards made by forums selected by themselves and manned by their own officers. They would be well advised if they took greater pains and more care than they are doing at present in preparing and prosecuting their case before the Arbitrators rather than in subsequently expending their time, energy and efforts on fruitless objections and appeals against the awards made against them, for which they are mostly themselves to blame."

13. Since nothing has been pointed out to enable me to interfere with the D order under challenge, this appeal fails. It is, accordingly, dismissed with costs. A.A/P‑90/1 Appeal dismissed.