1980 PLP 553 (CLC)

This judgment shall dispose of Civil Revisions Nos. 461/1972 to 455,!1972, as common questions of law and facts are involved therein. It shall, however, remain on the file of Civil Revision No. 461 of 1972.

2. Qazi Masood-ul-Haq, the petitioner in Civil Revisions Nos. 461/72 and 462!72 filed two separate suits against the respondent for declaration that he was the owner in possession of the suit land, questioned the validity of Mutation Nos. 3253 and 3256 sanctioned on 17-1-1970 and further prayed for permanent injunction restraining the respondent from interfering in his possession and cultivation of the land in dispute. Similarly, his mother Mst. Zahida Begum also instituted two suits, in which she challenged Mutation No. 3252 and 3255, dated 17-1-1970. The respondent, filed a cross suit in respect of the same land.

3. On 2-11-1970 the parties and their learned counsel made a joint statement before the learned trial Court to get their suits decided through arbitration. They named Sh. Abdul Aziz, Advocate, Bhakkar, as the sole arbitrator. Accordingly, a reference was made to him by the learned trial Court who on 26-1-1971 made an award in favour of the respondent. The petitioners filed objections against the award. The learned trial Court turned down the objections and by the judgment dated 13-11-1971 made the award rule of the Court.

4. The petitioners filed five separate appeals against the judgment under section 39(1)(vi) of the Arbitration Act, which were dismissed by the learned District Judge, Mianwali, by a single order dated 25-1-1972. He held that the learned trial Court. proceeded with the pronouncement of the judgment under section 17 of the Arbitration Act, which was not open to appeal. The petitioners' contention that the impugned judgment amounted to refusal to set aside the award and was thus appealable did not find favour with him. They have now come up in revision.

5. The sole point requiring adjudication in these revision petitions is, as to whether or not the judgment of the learned trial Court was appealable under section 39(1)(vi) of the Arbitration. Apt. The petitioner's learned counsel argued that the learned trial Court overruled the petitioner's objections against the award and refused to set aside the same. He contended that such an order is covered by clause (6) of section 39 and section 17 of the Act. It was forcefully urged that merely because the learned trial Court had passed a composite order refusing to set aside the award as well as pronouncing a judgment in accordance with the award and making it rule of the Court, the petitioners could not be deprived of their right to file appeal against such an order. He relied in Syed Hussain Shah v. Haji Ghulam Hassan Khan (P L D 1953 Pesh. 59); Kh Ghulam Rasool Lone v. Azad Jammu & Kashmir Government (P L D 1971 Azad J & K 127) Sheoramprasad Ram Narayanlai v. Gopalprasad Parmeshwardayal Shukla and others (A I R 1959 Madh. Pra. 102) and Bajjuri Ramakistam v. Bhoopati Somalingam and others (A I R 1962 Andh. Pra. 492).

6. I have gone through the record and examined the precedents cited by the learned counsel. In Syed Hussain? Shah case it was laid down : The policy of the Arbitration Act is that after an award is filed in court and after complying with the provisions of law contained in different sections of the Arbitration Act the court should pass a distinct order, either to set aside the award; or refusing to set aside the award. That such a distinct order should be passed by the Court is clear from the wordings of section 17 read with suction 39 the Act, because until and unless such an order exists on the recon appeal list from the order of the trial Court. By enacting section 39, the Legislature clearly gave a right to the aggrieved part to go up on appeal against a certain order, which the Court could not take away from him by omitting to pass such an order." The point in issue was also examined by a Division Bench of the Azad J & K High Court in Kh. Ghulam Rasool Lone's case and after perusal of the case-law on the subject it was observed that an appeal lies undo subsection (1) (vi) of section 39 against an order whereby the Court make an award rule of the Court and refuses to set aside it. In Sheoramprasr Ram Narayanlal Banbia v. Gopalprasad Parmesh vardaval Shukla and other . Hidayatullah, C. J. was of the view :- "In the case of a composite order by which a Court refuses to s aside an award and also passes a decree in accordance with in terms, the order refusing to set aside the award and the deer are both appealable, as sections 17 and,39 are not mutually exclusive Therefore, the fact that a decree has been passed does not preclude an appeal against the order refusing to set aside the award." The observations made in Bajjuri Ramakistam v. Bhoopati Bomalingam a others are also to the same effect.

7. It is quite evident from the judgment of 'the learned trial Cot that the petitioners' objections against the award were overruled at the Court thus refused to set aside the award. Though through to same order the judgment making the award rule of the Court was pronounced and decree passed in terms thereof, yet it cannot be said the Court's refusal to set aside the award was mgt embodied therein In this view of the matter, the trial Court's Ju1igmerl? Security fails and clause (vi) of subsection (1) of section

39. The precedents Led be petitioners' learned counsel fully support his argument. It is quite clear to me that the trial Court's judgment is appealable under section 39 and to view taken up by the learned District Judge is erroneous:

8. As a result of this discussion, these revision petitions are accepted the judgments of the learned District Judge are set aside and the case remanded to him for disposal of the appeals on merits. As the respond has not entered appearance and has been proceeded against ex parte through a separate order of to-date, there shall be no order as to costs. M. A. K.????????????????????????????????????????????????????????????????????????????????? Petition accepted.