2010 PLP 1985 (MLD)

SHAUKAT UMAR PIRZADA, J.

This revision petition has been directed against the order dated 10-5-2004 passed by the learned Additional District Judge, Lahore, whereby the appeal of the respondents has been allowed and their application under Order VII Rule 10, C.P.C. read with section 34 of the Arbitration Act, 1940 has been accepted by reversing the order dated 7-10-2003 passed by the learned Civil Judge, Lahore.

2. The brief facts giving rise to the revision petition are that the petitioner is an approved contractor for the construction of buildings and roads works. He participated in the tender for the work of widening and improvement of certain portion of road from Chunian to Khudian and was declared the lowest bidder. This bid was accepted by respondent No.2 vide letter No.1875/G dated 16-3-1998 which information was communicated to respondent No.3 vide letter dated 129/M dated 17-3-1998, which was followed by execution of the agreement between the parties. The work was completed by the petitioner on 27-11-1998 and final payment of Rs.1,69,903 could not be released by the respondent due to paucity of fund. The security was also not released despite repeated requests of the petitioner and consequently, he was constrained to file a suit for recovery of Rs.1,70,000 on 16-10-2000. The respondents appeared before the learned trial court and obtained various adjournments for filing written statement and finally on 12-8-2003, they filed application under sections 34 and 41 of the Arbitration Act, 1940 read with Order VII Rule 10 and section 151, C.P.C. In the said application it has been averred that as the tender was issued and given to the petitioner by the respondent No.3 at Kasur, the work has been done at Kasur and the payments have been received by the petitioner at Kasur, therefore, the civil court at Kasur has territorial jurisdiction to entertain and try this suit. It is further averred that under Clause 65 of the agreement executed between the parties, in the event of any dis agreement between the parties i.e. the engineer incharge and contractor, arising out of the contract, the matter shall be referred to the Superintendent Engineering for decision, who shall decide the same within three months. It was prayed in the said application that the plaint be rejected and the petitioner be directed to approach the court having territorial jurisdiction on the subject-matter and to avail his remedy in terms of the arbitration clause of the said agreement. This application was contested and after hearing the counsel for the parties, learned trial Court dismissed the said application on 7-10-2003. Feeling aggrieved, the respondents preferred appeal against the said order which was accepted by learned Additional District Judge, Lahore vide order dated 10-5-2004, whereby the respondents, said application was allowed. Hence, this revision petition.

3. Learned counsel for the petitioner at the outset has stated that he has no objection to have the matter resolved through the arbitrator in terms of Clause 65 of the said agreement but insisted that as the tender . was accepted by respondent No.2 at Lahore, therefore, the courts at Lahore have the territorial jurisdiction in the instant matter. In support of his contention, he has relied upon Faqir Muhammad v. Pakistan through Secretary, Ministry of Interior and Kashmir Affairs Division, Islamabad (2000 SCMR 1312).

4. Learned Assistant Advocate General appearing on behalf of the respondents has controverted the contention of the learned counsel for the petitioner and has supported the order of the learned lower appellate court.

5. I have heard the learned counsel for the parties and perused the available record. The learned counsel for the petitioner has disputed the interpretation of the learned lower appellate court regarding a para of the letter dated 17-3-1998 issued by Executive Engineer Highway, Kasur which is reproduced as under: "Your tender dated 26-2-1998 being the lowest is hereby accepted at the rates noted below against each item by the S.E., Highway Circle, Lahore vide his letter No.1875/G dated 16.03.1998. The time limit for the completion of work is four months. "

6. The learned counsel for the petitioner contends that the above referred para conveys that the petitioner's tender dated 26-2-1998 has been accepted by respondent No.2/Superintendent Highway. A careful perusal of the said para reveals that the interpretation offered by the learned counsel for the petitioner before this Court as well as before the learned lower appellate court is not correct, therefore, rightly repelled by the learned lower appellate court. It has been rightly concluded in the impugned order that the tender was accepted by the XEN, Kasur on, the rates which were notified by S.E., vide letter dated 16-3-1998. Therefore, the learned appellate court was justified in holding that the courts at Lahore have no jurisdiction on the subject-matter. The case-law relied upon by the petitioner is not relevant. The learned counsel for the petitioner has failed to point out any error of jurisdiction in the impugned order which is otherwise well reasoned and based on record.

7. In view of the above, the revision petition is without merit, therefore, dismissed. No order as to costs. M.U.Y./M-492/L Revision dismissed.