1994MLD728 (PLP)

This revision petition is directed against the order, dated 24-5-1992 passed by the learned Additional District Judge, Lahore, through which the appeal fled by the respondents against the order, dated 14-12-1991 passed by the learned trial Court making the award rule of the Court was accepted, has been challenged. .

2. The petitioner was granted contract for the construction of road. According to the contract the width was to be 24 feet. The case of the petitioner was that the Executive Engineer who was incharge of the work at the spot verbally directed him/issued orders for formation of width upto 28 feet and this extra work did cost him certain amount which he was entitled to recover from the respondents. A dispute arose as to whether the petitioner was entitled to any amount for the said additional work. Since there was an arbitration clause in the agreement, therefore, an arbitrator was appointed to decide the dispute. The arbitrator after hearing the parties and considering the claims filed by them came to the conclusion that the petitioner was made to undertake the additional work for which he was entitled to a specific amount, therefore, an award was made in his favour for the said amount. This award was made rule of the Court by the learned trial Court through order dated 22-9-1990 in which it was held that the respondents had failed to establish that the arbitrator misconducted 'himself or the proceedings. The other issues raised by the respondents against the award were also answered against the respondents. This order was challenged by the respondents in appeal before the learned lower appellate Court which accepted the same through the impugned order, dated 24-5-1992. It was held that though the petitioner did the additional work but the same having been undertaken without any written order of the competent authority, as such, he was not entitled to any amount, therefore, the award given in favour of the petitioner was set aside.

3. I have heard learned counsel for both the parties. The argument of the learned counsel for the petitioner that the learned lower appellate Court could not sit over the judgment of the arbitrator on merits as a Court of appeal and set aside the same as if the Court was hearing the appeal. The question whether the verbal order given to the petitioner by the Executive Engineer at the spot had the approval of the authorities or not was also a question which was to be decided by the arbitrator and he having held that the petitioner was entitled for the additional work done by him, therefore, the learned lower appellate Court was not vested with jurisdiction to interfere in the said finding of the arbitrator as he was the final authority in the matter. There is no finding recorded by the learned lower appellate Court any case of misconduct by the arbitrator was made out in respect of the arbitration proceedings.

4. I have also gone through the annotated reply to the claim of the petitioner filed by the respondents which was produced in evidence as ExhA/1 from which it is manifest that the additional work was got done at the spot from the petitioner who did it and the case of the authorities was that such an expenditure did not need administrative approval. The Executive Engineer who gave verbal instructions to the petitioner to undertake additional work was not examined as witness by the respondents from which it can safely be inferred that he was not supporting their case. Even if any administrative approval was needed, the petitioner was not concerned with the internal arrangement and procedure of the department and he having been asked to undertake the additional work and having actually undertaken the same was rightly held to be entitled to the recovery of the amount spent by him.

5. The order passed by the learned lower appellate Court suffers from not only material irregularity and illegality but also amounts to exercising jurisdiction not vested in it under the law to interfere in the finding recorded by A the arbitrator on merits. The revision petition is accepted. The order, dated 24-5-1992 passed by the learned lower appellate Court is set aside and that of the learned trial Court restored. There will be no order as to costs. AA./S-205/L Revision accepted,