P L D 1993 Karachi 683 (PLP)

(7) That it is a fabricated and blatant he that the plaintiff acquired or purchased the said plot of land No. 109/1 in the benami name of defendant as alleged. It is submitted that as is evident from Exhs. P/21 and P/22 the defendant himself purchased the said plot with his own money which he had brought from Abu Dhabi and thereafter completed the construction of a bungalow thereon and furnished the same with articles brought by him from Abu Dhabi. In this regard the defendant places reliance on Exhs. D/32, D/34, D/35, D/36 and D/39 produced in evidence before the learned Sole Arbitrator. It is further submitted that the defendant had remitted/deposited in his Bank Account No.3072-E, United Bank Limited, Clifton Branch, Karachi a sum of Rs. 9,05,850 (Exhs. D-22 to D-24) obtained a loan of Rs.3,00,000 from United Bank Ltd. by mortgaging his property in question vide Exh. P/24, by obtaining friendly loans and by importing various itcms worth Rs.1,94,

380. The said amounts were over and above the cash in hand, his remittances to A/c 1522-K, U.B.L. Clifton and Travelers Cheques etc., which the defendant possessed. (8) That though the plaintiff in her pleadings has contended that as to the ownership of the property in question first dispute between her and defendant took place in October, 1986, but thereafter she did not raise the said contention either earlier or on 5-9-1987, when she signed Exh.P/27 in the presence of her own relatives. It is submitted that totally silent as to her false claim over the property in question. (9) That Mr. Aslam Sanjran, had advanced the friendly loan of Rs.3,79,800 to the defendant and not to the plaintiff through cheques which were deposited in defendant's Account No-3072-E as is evident from Exh. D.24 and Annexure "A" page 59 of the record of arbitration proceedings and it is the defendant, who repaid the said friendly loan. (10) That withdrawals from Bank Account No.3072-E to the extent of Rs.12,235.53 were out of defendant's money and the same was accounted for by him during his cross-examination. The said amount comprises of remittances Rs.9,05,850 plus loans from United Bank Limited and Mr. Aslam Sanjrani whereas as per Exh. P/26 which is in the handwriting of the defendant, clearly shows that the total cost of the bugnalow in question was Rs.15,81,

260. There. is nothing to establish that the cost of the property in question was at Rs.19,76,060 or Rs.20,82,505 as alleged by plaintiff. (11) That as to the resources of the defendant for construction of the bungalow he brought construction material worth Rs.1,94,380 from Abu Dhabi. The defendant was earning a total salary and benefit package of an amount equivalent to U.S. Dollar 1,00,000 annually. At Karachi the defendant was drawing a salary of Rs.27,500 after deduction of taxes etc. (12) That the sale of plaintifirs Flat No.6, Sea Breeze Luxury Apartments, Clifton, Karachi she invested the entire sale proceeds of the said flat on 19-9-1985 in Khas Deposit Certificates of the face value of Rs.3,50,

000. The other Khas Deposit Certificates of the face value of Rs.32,500 were purchased subsequently after the interest was earned on the said Khas Deposit Certificates as admitted by the plaintiff during cross-examination. 13) That it is absolutely false and incorrect that the cost of land was Rs-2,50,000 as alleged, and not was Rs.1,30,000 as e-vidcnced by Exhs. P/21, P/22 and D/25. ted (14) That it is submit that the securities/scrips worth Rs.7,32 000 were purchased after the completion and occupation of the said bungalow. Purchase of "scrips" started in August, 1985 till February, 1987 on various dates and proves that plaintiffs allegation that defendant's admitted expenditure for the construction of the bungalow in question, from his Account No3O72-E was only Rs.1,15,944, The period of the construction and purchase of said scrips are very important factor-, The foremost arguments advanced by Mr. Mansur Ahmed Khan, learned counsel for the plaintiff were that the learned Arbitrator had failed to exercise jurisdiction vested in him and took upon himself jurisdiction not vested in him. Further he completely misread the record. Reference was made by the learned counsel to the established facts which were not accepted by the learned Arbitrator, namely (1) The defendant had sent through "bank remittances" only a sum of Rs.905,850 and no more whereas the plaintiff had disclosed the source of finance provided by her at Rs.14,00,000 out of which she got Rs.6,10,000 by sale of her Clifton Flat, Rs.300,000 as loan from U.B.L. and Rs.4,90,000 by Dasti loans. (2) The Dasti loans were laid by the plaintiff out of the funds available to her from the sale of Sea Breeze Apartment in August, 1985. (3) All fittings, fixtures, furniture, electrical and electronic goods sets and other household goods which were being moved into the new house belonged to the plaintiff and not brought by the defendant from Canada and Dubai. (4) The liability for payment of House Building Loan was of plaintiff and not joint. (5) Income Tax and Wealth Tax returns were not relevant to the case and the insistence of the learned Arbitrator for production thereof was uncalled for. With a view to advance his arguments further learned counsel for the plaintiff, Mr. Mansur Ahmed Khan referred to a number of decided cases on the benami transaction and placed reliance on Meenakshi Mills v. CIT PLD 1957 SC (Pak.) 188; Ismail Soomar v. Shoratbano (Appeal dismissed) 1968 SCMR 574, PLD 1960 Kar. 852; Abdul Majid v. J. Abedin PLD 1970 Dacca 414; Altaf Mahmud v. Fazalun Nisa PLD 1970 Lah. 654; Kerwock v. Kerwock ILR 48 Cal. (PC) 260; Sadequr Rehman v. Abdul Bari PLD 1971 Dacca 120; Dost Muhammad v. Satar PLD 1981 Kar. 339; Shalimar Ltd. v. Raisuddin 1979 CLC 338; Md. Bibi v. Abdul Ghani PLD 1975 Kar. 979; Jamila Khatun v. Yasin PLD 1959 Dacca 690; Muhammad Asheque v. Fazal Karim 1970 DLC 782; Gopal Pramanik v. Asim'Moudal PLD 1952 Dacca ' 389; Uman Parshad v. Gandarap Singh 14 IA 127; Hakim Mahbub v. Bharat Indu 23 CWN PC) 321; Akram M. Ansari v. Asghari Begum PLD 1971 Kar. 663; Sultan v. Mauladad PLD 1969 Kar. 221; Muhammad Ali v. Sakar Khanoo PLD 1984 Karachi 97; Ghulam Khabib v. Ghulam Sadiq 1986 CLC 14, 1423; Kassamali v. Naushad NLR 1985 CLJ 491; Imtiaz'Ahmad v. Republic PLD 1982 FSC 178; Imtiaz Ahmad v. Republic PLD 1983 FSC 28; Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Mst. Sardar Khatoon v. Dost Muhammad 1981 SCMR

806. The question according to the learned counsel is not to be 'decided solely on the basis of the property being ;n the 'benamidaes name". Positive onus to repel the assertion files on the benamidar also. This rule of evidence is emphasised by the Supreme Court in the case Zakaullah Khan v. Muhammad Aslarn 1991 SCMR 2126 in which it was observed: "On the first legal question, reference has been made to Woodroof and Amir Ali on "Law of Evidence" (14th Edition, 1979), page 190, where the following observations have been made:-- 'But with regard to the proof required in civil and criminal proceedings there is this difference: that in the former a mere preponderance of probability is sufficient; and the benefit of every reasonable doubt need not necessarily go to the defendant but in the latter (owning to the serious consequences of an erroneous condemnation both to the accused and society) the persuasion of guilt must amount to such a moral certainty as convinces the minds of the tribunal, as reasonable man beyond all reasonable doubt'." The latest case in the line according to him appears to be the case of Muhammad Sajjad Hussan v. Muhammad Anwar Hussain 1991 SCMR 703 in which at page 709 the observation is: "Some of the criteria for determining- the question, whether a transaction is a benami transaction or not, inter " the following factors are to be taken into consideration:-- (i) source of consideration; (ii) from whose custody the original title. deed and other property documents came in the evidence; (iii) who is in possession of the property-, and (IV)motive for the benami transaction." And further at page 709: "It is also a well-settled law that the initial burden of proof is on the' party who alleges that an ostensible owner is a benamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. However, it may also be stated that the burden of proof may shift from, one party to the other during the trial of a suit. Once the burden of proof is shifted from a plaintiff on a defendant and if he fails to discharge the burden of proof so shifted on him, the plaintiff shall succeed." The other case particularly referred to by the learned counsel was the case of Ismail Soomar v. Shoratbano PLD 1960 Kar.

852. The facts of the case are that Ismail Soomar, the plaintiff and Shoratbano, the defendant, were husband and wife, having been married in 1923. Shoratbano became a major partner of the first Ismail D. Adam Soomar under a partnership deed of 1941 to the extent of 3/4th. The plaintiff/husband had the remaining 1/4th share in the firm. The defendant, Shoratbanc also came to have, in her own/personal name, amongst others,' the house Shorat Villa situated in Garden Quarters, Karachi a plot of land with a bungalow in F.I.B. Colony, and a Nash Car bearing NoKar 3401 and various, household silver and other wares and effects. All the said movable and immovable properties being in the recorded name of his wife (the defendant Shoratbano) -he plaintiff claimed them in Suit No365 of 1956 alleging that she was merely a benamidar, irrespective of the record and/or the income-tax returns or the property and mutation documents where she, was recorded as the owner. Upon examination of the facts and despite the property documents, the partnership deed, the income-tax returns, the books and registers, recorded the name of the "beriamidar" as the "owner"; the Court upheld the husband/plaintiff s claim to the i real owner ship of the immovable properties, the same being in the benami name of the defendant only. According to the learned counsel this decision was sustained in H.C.A. and 'in 'the Supreme Court Appeal: Shoratbano v. Ismail Soomar, reported in 1968 SCMR

574. Next it was urged that the learned Sole Arbitrator misread and misconducted himself. Reference was made to para. 25 of the Award where it is stated that: "It was for the plaintiff to put construction on her claim and establish her case. She cannot succeed on picking up faults with the version of the defendant." In doing so, it was argued the learned Arbitrator had miscomprehended the case of Mst. Sardar Khatoon v. Dost Muhammad 1988 SCMR 806 which was relied upon by him and as such misconducted himself. The Supreme Court cases which lay down the shifting of "onus" and emphasising the universal rule of evidence were not noticed. The learned Sole Arbitrator, in the instant case and in 1988 SCMR 806, failed to notice the incongruity of facts. Next argument advanced by the learned counsel for the plaintiff was that the power of attorney executed by the defendant to the plaintiff was irrevocable and an irrevocable commitment was not revocable. No legal, objection was raised by the defendant at the time of evidence, and it was exhibited as Exh. P/23 but during the course of arguments, learned counsel for the defendant had raised the objection *that It was not properly stamped. According to him where Power of Attorney -is given by benamidar to real owner, Article 48(c) of the Stamp Act will not be applicable. Reliance was placed by the learned counsel on PLD 1971 SC 516; 1975 SCMR 167; PLD 1977 SC 644 (655); PLD 1978 SC 279 (284 and 286); PLD 1979 SC (A J & K) 6 and 1975 SCMR 167 (168). Lastly it was contended by learned counsel for the plaintiff that the learned Arbitrator misconducted himself and the proceedings by rejecting the application for amendment of the plaintiff's statement of claim which states a., follows: "In the alternative if it be found that both parties hereto have made investment in the property under reference, in that event, the property be declared joint property with respective shares therein of either party corresponding to investment by either party, with consequential orders as in the last preceding clauses (i), (H) an( ,(iii) and its sub-clauses (a) and (b), clause (iv) be also passed in the manner and to the extent corresponding to the respective shares of the parties." According to Mr Ikrarn Ahmed Ansari learned counsel for the defendant Arif Ali . the question of benami transaction was careful examined by the learned Arbitrator on the basis of ocular as well as documentary evidence adduced by the parties and he gave a definite fmdinf that no case of benami transaction has been made out by the plaintiff. All the four factors in a benami ' transaction referred to in Sajad Hussain's case (supra) namely source of consideration, possession and custody of original title deed of property etc., possession of the property and motive for benarn transaction were duly considered by the learned arbitrator but none of the were found by him in favour of the plaintiff. Having failed to establish her case the learned Arbitrator rightly rejected her claim for benami transaction. In support of his contention learned counsel placed reliance " on AIR 1947 Lah 288; PLD 1961 Kar. 548; PLD 197-3 Kar. 51"'; 1979 CLC 338; 1984 CLC 762; 1988 SCMR 806,1991 SCMR 703 and AIR 1944 Allahabad

30. Mr. Ikram Ahmed Ansari learned counsel for the defendant Arif Ali made particular reference to the very motive of benami transaction as per the plaintiffs own showing. According to her she wanted to reassure ' her husband of her love and to pursue him to return to Pakistan therefore she from her own resources purchased the plot of land in benami name of her husband on which she completed the house and furnished it. According to the learned counsel the greatest attraction for the defendant to conic back to Pakistan was that they had a child namely Sabir Ali, who in D'77 when the plaintiff came back to Pakistan with her was 5 years old. With regard to the general power of attorney dated 21-9-1993 Exh.P/23 executed by the defendant in favour of the plaintiff, it was argued by Mr. 1kram Ahmed Ansari that the power of attorney is silent with regard to the description of the property in question. It had authorised the plaintiff to acquire plot of land on behalf of the defendant and to sell, transfer, mortgage or dispose of the same. Since the said plot was purchased by the defendant himself as far back as 15-5-1983, whereas the power of attorney was executed on 21-9-1983, the contention of the plaintiff that it was for consideration is on the face of it false and unbelievable. As to the rejection of application for amendment of statement of claim by the learned Arbitrator, Mr. Ikram Ansari learned counsel for the defendant contended that the said application was rightly rejected by the learned Arbitrator as the plaintiff apart from it being, belated, had come out with a totally inconsistent plea namely " the property be. declared joint property with respective shares of either party corresponding to investment of either party". In support learned counsel placed reliance on Pan Narain and Mst. Chandarmy Quer AIR 1944 Allahabad 30 in which it was held: "In a suit for a declaration that a certain transaction was benami it is not open to a party to contend or for a Court to hold what a part of it is genuine and the other part is benami." I must admire great deal of labour put in by learned counsel for the parties to support their respective contentions. In the heat of their arguments. what however was lost sight of by them was that sections 30 and 33 of the Arbitration Act have a very limited scope within which the objections to the award are to be justified and reference by them to the evidence of the parties was uncalled for. An objection which falls beyond the scope of the said sections can always be disregarded by the Court. The entire case of the plaintiff rests on the alleged benami transaction. In this regard the parties examined themselves and produced the documentary evidence. Neither the plaintiff nor the defendant had examined any one except themselves. The learned Arbitrator in details appraised the evidence of the parties and came to the conclusion that the plaintiff had failed to establish her case. In Champsey Bhara & Company v Sivraj Ballon Spinning and, Weaving Co. Ltd. AIR 1923 Privy Council 66 it was held "that where a cause or matters in difference are referred to an arbitrator, whether a lawyer or a layman, he is constituted the sole and final judge of all questions both of law and of fact" and that the exception to the rule is where the award is the result of corruption or fraud or there is an error on the face of it. In Ashfaq Ali Qureshi v. Municipal Corporation, Multan 1984 SCMR 597 it was held: The arbitrator the judge of all matters arising in the dispute whether of fact or of law and the Court is not to act as a Court of appeal sitting in judgment over the award. Nor is it proper for the Court to proceed, to scrutinize the award in order only to discover an. error for the purpose of setting it aside. The error must be apparent on the fact of the award and not latent such as can be discovered only after a scrutiny of the material beyond the award." In National Construction Co. v. WAPDA PLD 1987 SC 461, the Supreme Court held: "The general principle underlying the concept of arbitration as translated in the scheme of the Arbitration Act is that, as the parties choose their own arbitrator to be the judge in the dispute between them, they cannot when the award is good on the fact of it, object to his decision, either upon law or the fact. In other words an arbitration in substance, ousts the jurisdiction of the Court, except for the purpose of controlling the arbitrator and preventing misconduct and for regulating the procedure after the award. In the Premier Insurance Co. (Pakistan) Ltd., Karachi v. Ejaz Ahmed Khawaja and three others 1981 CLC 311, Karachi a Division Bench of this Court expressed the following view- "A Court while examining the legality of the award under section 33 of the Arbitration Act could not substitute its own finding on appreciation of the evidence, in place of the one given by the Arbitrators or the Umpire, even if the Court had reached a different conclusion on that evidence. The proceedings before the Arbitrators or the Umpire are in the nature of proceedings before a domestic Tribunal and- strict compliance of procedural law or the Law of Evidence cannot be insisted upon in such proceedings." And further: "The words 'apparent on the fact Of the record' have been subject of interpretation in a large number of cases and it is by now a well-settled law that to hold that a particular error is apparent on the face of the record such error must be discoverable by reading the award itself and not by reference to other materials, namely the record and proceedings before the Arbitrators or Umpire." In S. Zahir Hussain V. Province of Sindh and another 1981 CLC 379 Justice Naimuddin (as he then was) a learned Judge of this Court held that "an erroneous finding of facts or erroneous reasoning would not bring the case within the purview of error of law apparent of the face of award for an error of law means some legal proposition and which is the basis of the award and which you can then say is erroneous". Earlier Wahiduddin Ahmed, J. in Suleman Haji Muhammad & Co. v. State Bank of Pakistan, PLD 1960 M.P.) Karachi 78 at -page 87 observed as follows:

"On consideration Of the case-law on the subject it is very clear that the Court hearing the application for setting aside an award cannot constitute itself into a Court of Appeal over the decision of an arbitrator and cannot make a shifting investigation of the entire proceedings before the arbitrator unless it is first shown that the award is bad on the face of it. I have already cited the view of their Lordships of the Privy Council that arbitrators are both judges of law and facts and in my view once the matter is found to be within the jurisdiction of the arbitrators it is not permissible for Courts of law to find out whether their decision is right or wrong on the facts urged before them by travelling outside the award for finding out what evidence was led before them and whether their conclusions are based on sufficient evidence." The learned Arbitrator in details has examined the source of money and after great deal of discussion came to the conclusion that the claim of the plaintiff as to the benami transaction was without any foundation. It was also observed by him that the property as well as all documents of title relating to the property were in possession of defendant. The alleged motive of the plaintiff to purchase the property in the name of the defendant also did not appeal to him. It need not be emphasized that an arbitrator is the final judge of all questions of facts and of law in respect of the dispute referred to him. There is nothing to show that the award was illegally procured or the arbitrator had misconducted himself or the proceedings or there was improper exercise of jurisdiction by the learned Arbitrator. A Court while dealing with objection under section 30 of the Arbitration Act does not act as a Court of Appeal and the matter before it cannot be allowed to be re-opened. In Ashfaq Ali Qureshi v. Municipal Corporation, Multan 1984 SCMR 597 it was held by the Supreme Court of Pakistan that it is the duty of Court to give every reasonable intendment in favour of the award and lean towards upholding rather than vitiating the same. The learned arbitrator in this case has considered all questions raised before him and has given a well-reasoned award which, cannot be interfered with. The plaintiff's objection that the learned arbitrator by disallowing the plaintiff's application for amendment of the petition for claim had acted illegally is without force. The said amendment application was moved by the plaintiff after the conclusion of arguments and purports to introduce an alternative prayer as follows: "In the alternative if it be found that both parties hereto have made investment in the property under reference, in that event, the property be declared joint property with respective shares therein of either, party corresponding to investment by either party, with, consequential orders as in the, last preceding clauses (i), (ii) & (iii) and its sub-clauses (a) and (b) (clause iv) be also pleased in the manner and to the extent corresponding to the respective shares of the parties." The contention of Mr. Mansoor Ahmed Khan, learned counsel for the plaintiff was that the non-inclusion of the alternative prayer has resulted into injustice to her and even through it amounts to amendment of the pleadings it should have been allowed by the learned Arbitrator at any stage of the proceedings before him as it would have served the interest of justice. This proposition does not appear to me correct. Firstly because an Arbitrator is not a Court but a private Tribunal. Secondly, the principles for amendment of pleadings as contained in Order 6, Rule 17, C.P.C. may not be, followed in Arbitration proceedings as, these proceedings are not the proceedings in a suit B where at any stage of the proceedings a Court may allow either party to alter or amend his pleadings for determining the real questions in controversy before it. As against this, the scope of reference to an arbitrator is confined to the terms of reference. He cannot -be allowed to travel beyond what was referred to him, otherwise he would be acting without jurisdiction. The Privy Council in Champsey & Co's case (supra) had held that "the question of whether an Arbitrator acts within his jurisdiction or not depend solely upon the clause of reference". A Division Bench of this Court in Pakistan through Secretary, Ministry of Industries (supra) had held: "The jurisdiction or the competency of the Arbitrators to determine a question or issue is strictly limited by the terms of the submission or reference. They cannot traverse beyond the reference or submission and, if they do so and decide or determine a matter which has not been referred to them, they would be acting without jurisdiction." The entire case of the plaintiff rests on Benami transaction which was the dispute and the term of reference to the learned Arbitrator was to that effect. Although the learned Arbitrator rightly rejected the plaintiffs application for amendment of her claim on the ground of inordinate delay as aforesaid, the alternative prayer was beyond the scope of reference and out of the ambit of the arbitration proceedings. In the result, the award is made the rule of the Court. However, in view of the fact that the defendant had failed to reimburse the plaintiff for instalments of loan paid by . her to M/s. United Bank Limited, as observed by the learned arbitrator she will be entitled to half of the costs of the proceedings before the arbitrator and the Court from the defendant. AA./A-1391/K Order accordingly.