P L D, 1967 Lahore 365 (PLP)

K. E. CHAUHAN, J.‑This is a Letters Patent Appeal filed by the plaintiff against the judgment of a learned Single Judge of this Court, dated 29th of June 1960, whereby, after setting aside the concurrent judgments and decrees of the two Courts below, the suit of the plaintiff was dismissed. The facts of the case are that there were certain business dealings between the plaintiff and the defendant; on account of which the plaintiff claimed certain dues from the defendant. The matter was referred to arbitration which ended in the award dated the 20th of' September 1953 (Exh. P. 3). This document was signed by both the parties and m it was laid down a method as to how the dues of the plaintiff were to be liquidated. It was agreed in the said document that the plaintiff was entitled to receive a sum of Rs. 12,610‑9‑

0. The defendant was to execute a promote for a sum of Rs. 3,610‑9‑0 in favour of the plaintiff which was to be paid up by the 3tst of March 1954. For the balance amount of Rs. 9,000.00, the property in dispute was given over to the plaintiff on the condition that the possession of the same, however, would remain with the defendant who would pay rent at the rate of Rs. 40 p.m., to the plaintiff. An option was given to the defendant that he could pay back the sum of Rs. 9,000.00 within a period of thirty months and take back the property. If there was a default in the payment of the monthly rent, or if the defendant did not pay the sum of Rs. 9,000.00 within thirty months then too the plaintiff was entitled to get the house and the shop in dispute vacated. The period of thirty months was to commence from the 20th of September 1953. The plaintiff alleged that this document was acted upon for sometime and the tenant‑defendant in part performance thereof paid an amount of Rs. 664.00 (Rupees Six hundred sixty four only). According to the plaintiff, as the defendant made a default in the payment of rent, therefore, he filed the present suit out of which this appeal has arisen for, the recovery of Rs. 616.00 as arrears of rent and for ejectment of the defendant from the house and the shop in dispute.

2. The suit was decreed by the trial Court and the first appeal of the defendant was dismissed by the learned District Judge, Montgomery at Lahore. In the second appeal to this Court the learned Single Judge accepted the appeal of the defendant, and finding the document Exh. P. 3 to be inadmissible in evidence held that the suit on its basis was not maintainable and, consequently, dismissed the same. The learned Single Judge was of the view that the document in question purported or operated. to create; declare; or assign a right, title or interest of the value of Rs. 100.00 and upwards in immovable property and was compulsorily register-able. He was also of the view that the suit Was not saved by the proviso to section 49 of the Registration Act., The plaintiff has come up in L. P. A against that.

3. The only questions debated in this case were (a) the maintainability of the present suit and (b) the nature, and admissibility of the 4ocumenl Exh. P/3 into evidence.

4. Taking up the question of the maintainability of the suit, a perusal of the plaint will show that it is through and through a case for the enforcement, execution or specific performance of the award. Paras. 1 and 2 of the plaint state that the parties were doing a business in partnership under the firm named Mirza Bashir Ahmad Abdul Karim and that dispute arose between them on 1‑8‑1953, when they referred the same to arbitration by agreement which was filed in original along with the plaint. Para, 3 states that the arbitrators gave the award on 20‑9‑153 which was accepted by the parties who signed thereon in token of its acceptance. The original award was also filed along with the plaint. Para. 4 states that House No. 12 situated in Chichawatni Lakar Mandi, (the roofs of which have been made by joint funds) was given by the arbitrators to the plaintiff and for the sake of allowing residence, etc., to the defendant, the rent was fixed at Rs. 40.00 p.m., which the defendant was made liable to pay. Para. 5 states that the arbitrators gave option to the defendant to purchase away the said property within thirty months for Rs. 9,000.00. It was averred that this period expired on 1‑4‑1956, and the defendant not having paid the amount of Rs. 9,000.00 the ownership of the plaintiff became complete. Para. 6 stated that the total amount due was Rs. 1,280 out of which the defendant, by various payments, cleared an amount of Rs. 664 and the balance due was Rs. 616.00. Para. 7 stated that the plaintiff served a notice on the defendant to pay the balance of the rent due and also vacate the property. The rest of the paras. are formal and in the end a decree of Rs. 616.00 and ejectment of the defendant was prayed for. It will be evident from this plaint that it purports to prove the existence of an award and seeks to have its effect determined and implemented and a question arises as to whether such a suit was maintainable. It is common‑ground between the parties that the award was unregistered and it was never filed in any Court nor was it made the rule of the Court; though from the award itself it appears that at that time a suit for rendition of accounts was pending between the parties and what happened to that suit is not clear on the present record. It .is to be mentioned that in the trial Court in the replication he' took up the ground that the suit was on the basis of the award. On the 5th of February 1957, the plaintiff filed an application for amending the replication filed earlier by him and stating that the suit was not for the enforcement of the award but was only on the basis of the relationship of. landlord and tenant and it was thereafter that the trial Court framed the issues in the case. In the replication earlier, the plaintiff had averred in very specific terms that the suit was on the basis of the award. The point, therefore, remains that regardless as to how the plaintiff construed the plaint, it essentially remained a plaint for proving the existence of the award and for its enforcement. To use another terminology, the suit was for the specific performance and enforcement of the award and the question is as to whether such a suit is maintainable. The relevant provision of law in this respect is section 32 of the Arbitration Act, which overrides other laws and reads as follows: "

32. Notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award, be set aside, amended, modified or in any way affected otherwise than as provided in this Act." The language of the section is quite clear that no suit lies to have a decision upon the existence or the effect of an award. . The phrase "decision upon the existence or effect of an award" is wide enough to cover suits which are aimed at implementing the terms of an award. If legal support be needed for the view which we have taken, reference can be made to the case law mentioned hereinafter. In cases where parties want to have the award enforced, the proper procedure for them is to first get that award made a rule of the Court and then to enforce or execute the decree which might be passed on the award and they cannot resort to the procedure of filing a separate suit by by‑passing the procedure laid down in the Arbitration Act which deals with the B awards. The said Act is comprehensive enough and no matter which is laid down in the said Act to be dealt with in a particular way can be dealt with in any other way under the ordinary law of the land. In Moolchand Jothajte v. Rashid Jamshed Sons & Co. (A I R 1946 Mad. 346) Leach; C. J., who wrote the leading judgment observed as follows:‑ "The Arbitration Act of 1940 was intended to consolidate and amend the law of India relating to arbitration matters. The scheme of the Act is to prevent the parties to an arbitration agitating questions relating to the arbitration in any manner other than that provided by the Act. Where, therefore, a party to an award given on 17th September 1940, instead of asking the arbitrators to file it in Court, files on 2nd May 1941, a suit in a Civil Court to enforce it, it is a suit which raises the question with regard to the existence and validity of the award and such a suit is expressly barred by section 32 of the Act of 1940 though such a remedy was available under the Act of 1989. Section 30, Specific Relief Act, does not override the provisions of section 32, Arbitration Act, which applies notwithstanding any law for the time being in force. The governing section in the matter is section 32 Arbitration Act." To the same effect are various other foreign judgments as reported in Ramchandar Singh and others v. Munshi Mian (A I R 1950 Pat. 48) ; Sia Kishori Kuer and others v. Bhirvi Mandan Singh (A I R 1953 Pat. 42); Government of India and another v. Jamundar Rugta and others (A I R 1960 Pat. 19); Narbadabai and others v. Natverlal Chunilal Bhalakia and another (A I R 1953 Bom. 386); Saha & Co. v. Ishar Singh Kripal Singh and others (A I R 1956 Cal. 321); The State of Bombay v. Adamjee Haji Dawood & Co. (A I R 1951 Cal. 147); Kamal Singh and another v. Sekhar ram and others (A I R 1952 Cal. 447); Bajrang Lal Ladu Ram v. 4garwal Brothers (A I R 1950 Cal. 267); Shayam Singh Jaswant Singh v. Pralhad Singh Tikkaram and others (AIR 1962 M P66); Bharma Gauda v. Ganapati Gauda and others (A I R 1954 Pat. 24) and Satyanarain Jhunjhunwala v. Mustafa Kamal Mohy‑uddin Akhtar and another (A I R 1964 Orissa 21). We have looked up for any Pakistani authority on the subject, but could not find any and reference to the above‑noted foreign judgments had to be given simply for the sake of showing that the view which we have taken was the one which already had received judicial recognition at the hands of some other foreign Judges.

5. In this view of the matter, the suit of the plaintiff in the present form was not maintainable and was liable to be dismissed on this short ground.

6. Coming now to the question as to whether the award (Exh. P. 3) involved in this case, was compulsorily registerable or not; reference ‑may have to .be made to section 17 (1) (b) of the Registration Act, because it is under this clause that an award falls. This section reads as follows:‑ "

17. The documents next hereinafter mentioned shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which Act XVI of 1864 or Act XX of 1866 or Act VIII of 1871, or this Act, came or comes into force (that is to say) . .? . . (a) . . . . . . (b) Other non‑testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or in immovable property." It will appear that this section requires registration only of such documents which by themselves purport to create or transfer rights or interest in immovable properties over Rs. 100.00. It is to be remembered that an award by itself cannot purport to create or transfer any interest in a property unless it is made a rule of the Court. It is a common ground that Exh. P. 3 was never made a rule of Court and, as such, it could not purport to create any interest, etc., and, therefore, did not require registration. The view which we have taken was taken by Full Bench of Patna High Court in Seonarain Lail v. Prabuchand (A I R 1958 Pat. 252) where, after referring to the various provisions of the Arbitration Act, it was held that no award can operate unless it was made a rule of the Court, and, therefore, an award which has not been made a rule of the Court would no require registration. In this view of the matter, Exh. P. 3 was not inadmissible in evidence and the finding of the learned Single Judge on this point, therefore, is not maintainable.

7. Learned counsel for the respondent submitted that since this award was signed by ‑the parties, therefore, it could be converted into an agreement or contract which purported to create `interest in immovable property and also purported to create a lease and, therefore; it was compulsorily registerable and being unregistered was inadmissible in evidence. This question has been the subject of scrutiny in various cases but has not been accepted. In Wazir Ali and Amir Ali v. Mahbub Ali and Muhammad Ali (10 P R 1917) it was held "the document in, question signed by the arbitrators as their award did not cease to be an award merely because the settlement was arrived at by the parties and was also signed by them." To the same effect is Mummidi Pattabhiramayya v: Badam Subha Rao and others (A I R 1945 Mad. 83) where Shahabuddin, J. took the same view. The headnote of the case reads as follows:‑ "The plaintiffs sought to enforce an award given by an arbitrator in respect of an immovable property in and by which the defendant's rights as lessee became extinguished. The District Munsif dismissed the suit on the ground that the award was inadmissible under section 49, Registration Act, as it was not registered as required by section 17 of the Act. In appeal the plaintiff conceded that the award required registration but relied on the proviso to section 49 Registration Act and section 30, Specific Relief Act, and contended that the award was a contract." "Held that the award was" not a contract and that the proviso to section 49, Registration Act did not apply."

8. Same was the view taken in Kuldip Dube v. Mahaul Dube and others (I L R 34 All. 43) and Maung Po Tok v. Ma Swe Mi (AIR 1918 U B R 109). The upshot of the above discussion will be that the document Exh. P. 3, merely because it was signed by the parties did not cease to be an award. If this document is studied in detail it would appear that it made reference to arbitration agreement; it purported to be written by the arbitrators. It was a result of arbitration proceedings, in which the arbitrators examined the record, books of accounts and fixed the liabilities of the parties. It dealt with the various contentions of the parties and either accepted or rejected them and finally purported to give a decision. It is signed as an award by the arbitrators. It is through and through the document of the arbitrators and not of the parties and cannot be described other than an award. The plea, therefore, that this document should be considered to be an agreement or contract of the parties has no substance.

9. The next position to be pointed ,out is that if the plea of the respondent that it was an agreement or contract is to be accepted, then instead of favouring him it will go against him so far as the question of admissibility in evidence is concerned. Under the proviso to section 49 of the Specific Relief Act, a contract or an agreement will be admissible in a suit for its specific performance which, as we have already held, is the nature of this suit. Therefore, so far as the admissibility of this document is concerned, the finding in either case remains that it will be admissible in evidence. This observation which we are making in this Paragraph, is based on the argument of the learned counsel for the respondent himself and on the assumption that Exh. P. 3 is a contract or agreement though our own view is that it is an award through and through.

10. The result of the above discussion is that we dismiss this appeal on the ground that the suit of the plaintiff; meant ‑as it was to have a decision on the existence and effect of an award, was barred by section 32 of the Arbitration Act though on the point of the admissibility of Exh. P. 3, in evidence, our finding is that the, said document was admissible in evidence. The parties shall bear their own costs throughout. K. M. A.????????????????????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.