2005 PLP 3106 (YLR)

MALIK MUHAMMAD QAYYUM, J.

This first appeal arises from a suit for specific performance of agreement of sell of a house situated in Chah Dogra, Opposite Jinnah Islamia College, Toor Road, Sialkot. It was decreed in favour of respondent-plaintiff by the Trial Court on the basis of the statement made by Chand Pervaiz son of Muhammad Yousaf who was appointed as a referee by the parties.

2. Learned counsel for the appellants had contended that as the statement of the referee was not based upon his personal knowledge but on the inquiries made by him, he acted as an arbitrator and not a referee.

3. This contention of the learned counsel has no force. Admittedly Chand Pervaiz was appointed as referee by the parties. In the written statement submitted by him he mentioned that he was making the statements on the basis of his own knowledge and also on some inquires conducted by him. The mere fact that the referee had made inquires would not denude him of his character as a referee and turn him into an arbitrator. Reference in this behalf may be made to the judgment of the Supreme Court of Pakistan reported as Mst. Lalan v. Noor Muhammad and 12 others (1994 SCMR 1771), wherein the referee decided the matter after recording the evidence. A contention was raised before the Supreme Court of Pakistan that in view of the fact that the referee had recorded the evidence he had become an arbitrator. This contention was repelled by the Supreme Court of Pakistan.

4. This view also finds support from two judgments of this Court, namely: Mushtaq-ur-Rehman and 4 others v. Muhammad Akbar and 5 others (1981 CLC 364) and Mehr Din and 2 others v. Siraj Din and 2 others (PLD 1980 Baghdad-ul-Jadid 45).

5. Learned counsel for the appellants has, however, relied upon the judgment reported as Muhammad Bakhsh v. Nizam Din (PLD 1978 Lahore 31) in support of his contention that if the case is not decided by the referee on his own knowledge but on inquires the referee becomes an arbitrator. The judgment relied upon by the learned counsel was considered in the latter judgment of this Court by Khalil-ur-Rehman, J. (as he then was) in the case of Mehr Din (supra). While referring to the case of Muhammad Bakhsh (supra) it was observed that the learned Judges, deciding the aforesaid case did not intend to lay down that if inquires are made by a referee he becomes an arbitrator.

6. Learned counsel for the appellants then contended that the appellants have resiled from their statements on the basis of which the referee was appointed and he should have been allowed to withdraw from the agreement. This contention of the learned counsel is again not well-founded. No cogent reason whatsoever was given in the application for revocation of authority of the referee. The only plea taken in the application was that the petitioner was under the impression that the referee would decide the matter honestly but from the conduct of the referee it appears that he was not going to do justice. This vague and bald assertion was hardly sufficient to allow the appellants to resile from the agreement entered into by them. It is highly regrettable that the appellants having themselves agreed to the disposal of the suit on the basis of the statement of the referee were trying to wriggle out the same both before the trial Court as also this Court. According to section 32 of the Qanun-e-Shahadat Order, 1984 the statement of the referee operates as an admission of the claim of the respondents by the appellants. There is no merit in this appeal which is dismissed in limine. H.B.T./1253/L Appeal dismissed.