1999 PLP 2829 (MLD)

The present appeals has been instituted challenging the judgment and decree, dated 24-11-1996 passed by the learned Senior Civil Judge, Multan.

5. The learned counsel for respondents at the very outset has raised following preliminary objection:- (i) The appeal is hopelessly barred by time and deserve dismissal. (ii) In view of the Provisions contained in section 3, section 17, section 28 and Schedule I Condition No. 3 of the Arbitration Act (X of 1 940), the present appeal is not maintainable.

6. Conversely, the learned counsel for appellant in reply to the preliminary objection raised by the learned counsel for respondent contended that the delay has sufficiently been explained the application filed under section 5 of the Limitation Act of condonation of delay. It is next contended that since no express extension for submission of award is available on schedule, therefore, the award has got no value in the eye of law.

7. I have heard the learned counsel for parties at some length and have also gone through the record.

8. The appeal was instituted on 3-1-1998 i.e. after the lapse of more than one year. An application under section 5 of the Limitation Act has been filed alongwith this appeal for condonation of delay. The grounds mentioned in the application for condonation of delay are that no award was submitted within stipulated time of four months; no time for submission of award was extended by the lower Court and even it was not filed till 12-2-1996; the appellants were told that after filing of award they will be informed but the award was filed on 25-4-1996 instead of 18-12-1994 and appellants came to know about it when they received notice of execution proceeding. Thereafter, the appellants got sanction for filing the appeal and the appeal was filed.

9. The appellant/department applied for obtaining certified copies of judgment on 15-12-1997. Copies were prepared on 17-12-1997 and was delivered to the appellants/department on the same day. Even after obtaining copy of the judgment and decree the appeal has been filed after the unexplained delay of 17 days. As far as other contentions with regard to the filing of the appeal as mentioned in the application for condonation of delay are concerned the same have got no force. The relevant record of. the lower Court was requisitioned. I have myself minutely checked up the record which reveals that the arbitration committee constituted by the trial Court was directed to submit the award on 18-12-1994. On that date Ch. Muhammad Ibrahim, Superintending Engineer, made a request through a written application which was accepted and the date for filing the award was fixed as 31-1-1995. On that date again the arbitrators filed an application with a request for extension of time for the submission of award which was also granted and the case was adjourned to 16-2-1995. Again the arbitrators filed a request which was again allowed and the arbitrators were directed to file award on 20-4-1995. The record also reveals that from 20-4-1995 to 30-10-1995 the Presiding Officer was transferred and no substitute was available. The case was adjourned to 5-12-1995 for awaiting the award. On that date notices were issued to the arbitrators for filing the award the next date was fixed as 4-1-1996. As the notices were not served the case was adjourned to 12-2-1996. On 12-2-1996 as one of the arbitrator had gone for performing Umra, therefore, the case was again adjourned with direction for issuance of fresh notice for 3-3-1996. Ultimately the award was filed on 25.4-1996 and the Court invited objections. From the perusal of record it reveals that the adjournments were granted either at the request of the arbitrators or due to the non-availability of the Presiding Officer but the fact remains that both the parties had participated in the proceedings, therefore, the contention of the learned counsel for the appellant that no express extension for submission of award is available on the file has got no force in the eye of law as the learned trial Court relying upon. judgments reported as 1996 CLC 848; 1996 CLC 344 and 1989 CLC 1030 has specifically held that it will be presumed that the Court has impliedly condoned the delay in filing the award. The point raised by the learned counsel to the effect that the appellants/petitioners were not heard and notice was given as provided under section 14(2) of the Arbitration Act, has also got no force as the record itself shows that an application was submitted by one Muhammad Sharif, Executive Engineer under Order 1, Rule 10, C.P.C. which is available at page 119 of the record. This application was rejected vide order, dated 24-7-1996. Again it is also borne out from the record that the learned counsel for the parties appeared before the trial Court and requested for adjournment for arguments on the award and the case was adjourned to 14-9-1996. The case was adjourned on different dates and ultimately on 24-11-1996 after hearing the arguments advanced by the learned counsel for the parties the impugned judgment and decree was passed by the learned trial Court. From the perusal of record it is very much clear that even the learned trial Court has failed to notice that throughout the proceedings the -appellants/petitioners/department had been appearing before the trial Court and the finding recorded by the trial Court in para. 9 of the impugned judgment that after 12-2-1996 the department did not appear before the Court is contrary to record. In PLD 1981 Kar. 730, it has been held: "I am, therefore, in no doubt that the notice contemplated under section 14(2) of the Act can be an oral notice to a party and compliance of this provision of law will be satisfied if the party or a counsel appearing for him duly authorised in this behalf, is informed by the Court either in writing or orally about the filing of the award in Court and such a notice could also be a constructive notice. " Learned counsel for respondent has placed reliance on Sh. Mahboob Alam v. Sh. Mumtaz Ahmad PLD 1969 (W.P.) Lah. 601 in support of objection raised about the maintainability of the appeal. In the light of above said judgment he has submitted that the provisions of section 14(1) and (2) may be mandatory a, may form a strong basis for repelling any objection on the ground limitation but they cannot render an award void. Their effect would b: that the Court direct compliance with them but when the objection the provisions has been served and the parties have knowledge of the content of the awards as well as of its filing there is no need of any formal notice (though its absence may be pleaded in reply to. an objection on the ground of limitation).

8. The learned counsel for respondent has also referred the case WAPDA and another v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak & Company (PLD 1990 SC 359) to contend that where the parties had all along submitted to the proceeding of arbitrator without any protest, he cannot turn round and object or insist that the award was made of statutory period. In the above said case it has been held:-- "Reading section 3, implied Condition No.3 in the First Schedule to the Arbitration Act and section 28 thereof together, the position of law appears to be clear that the parties are free to enlarge time for making award with their mutual consent as with the consent of the parties, a term can be incorporated in the arbitration agreement giving powers to the arbitrator to enlarge the time for making the award. By Condition No.3 in the First Schedule, statutorily an implied term is incorporated in the agreement that the award shall be made within four months after entering upon the reference. By this statutory provision, the term is to be taken as an integral part of the arbitration agreement and is subject to alteration with the consent of the parties like any other term of a contract. If that were not the intention of the legislature, section 28(2) would not make valid a provision in the arbitration agreement empowering the arbitrator or arbitrators to enlarge the time for making the award with the consent of the parties. If the parties after the expiry of the four months submit themselves to the jurisdiction of the arbitrator and take part in the proceedings enabling him to make an award, it cannot be said that the arbitrator acted without Jurisdiction. In such a contingency the principles of waiver and estoppel would apply with full force." (12) It is now well-settled that where the party had all along submitted to the proceedings of the arbitrator without any protest, he cannot turn round and object or insist that the award was made out of statutory period. In Province of Balochistan v. Malik Haji Gul Hassan (PLD 1982 B Quetta 52), Messrs Sindh Cotton Exporter v. Messrs Musa [snail & Company (PLD 1955 Sindh 242) it was held by the High Court, of Balochistan and Sindh respectively that the party raising no objection before the award is given an voluntarily acquiescing to arbitrator's jurisdiction, such party was debarred from raising objection at latter stage. It was also held by a Division Bench of the Lahore High Court in the case of Ghulam Mohiuddin v. Federation of Pakistan (PLD 1967 Lah. 204) that if a party takes part in the proceedings even after the expiry of four months without raising any objection, it cannot be allowed to raise such an objection." 9.The learned counsel has also referred to 1998 SCMR 307, wherein their lordship have held as under:- "This has repeatedly laid down that so far as the Limitation is concerned the Government cannot be treated differently from the ordinary litigant. If inspire of enormous resources and facilities, the Government continues to delay the filing of cases in time detrimental to its own interest, the opposite party cannot be penalised for its negligence. It is a settled law that each day of limitation must satisfactorily be explained which the petitioner has failed to do in his case. This petition is hopelessly barred by time and no sufficient ground exist for condonation of delay."

10. In the present case, also as discussed above, the department has been taking part in the proceedings before the trial Court, but no effort whatsoever, was made to file appeal in time. In application submitted under section 5 of the Limitation Act, even no explanation was given by the appellant that why the filing of present appeal was delayed after obtaining certified copies of relevant record on 17-12-1997 till 3-1-1998.

11. As far as the maintainability of .the appeal is concerned, section 17 of the Arbitration Act reads as under:- "(17) Judgement in terms of award.

Where the Court sees no cause of remit the award or any of the matters referred to arbitration for consideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except on the ground that it is in excess of or not otherwise in accordance with the award. " In the light of above discussion, this appeal being hopelessly time barred has also got no merit and the same is dismissed with costs. H.B.T./P-66/L Appeal dismissed