1972 PLP 608 (SCMR)

HAMOODUR RAHMAN, C. J.‑This is a petition for special leave to appeal from the judgment of a learned Single Judge of Peshawar Nigh Court in a regular second appeal. This appeal arose out of a suit filed by the first three petitioners herein and one Mst. Naimai (since deceased) for a declaration that they are the owners in possession of lands entered in Khata No. 61/308, Khasra No. 4403, measuring 3 kanals, situated in the area of Mouza Sufaid Dheri. The suit was brought because, the lands had been entered in the revenue records in the names of respondents Nos. 1 to 6 as owners. Respondents Nos. 2 to 6 had also purported to sell the lands to respondents Nos. 7 and

8. The petitioners claimed that these entries were wrong and that the sale was null and void and, in the alternative claimed that they should be given possession of the suit lands, if it is found that they are not in possession. The suit was contested by the respondents who claimed that they had purchased the suit lands from the predecessors‑in‑interest of the petitioners by a registered sale deed executed on the 27th of October 1933 and that, in any event, they had acquired title to these lands by adverse possession for over 12 years. Issues were framed, but before evidence could be recorded, the parties, on 8‑9‑64, referred their disputes to. the arbitration of the mehtamim of the mosque of Mobabat Khan at Peshawar. The said arbitrator refused to arbitrate and, thereafter, on 19‑10‑64, Maulana Mufti Abdul Qayyum Popalzai was appointed arbitrator. Unfortunately the statement regarding the appoint ment of the Maulana was signed on the side of the plaintiffs in the suit by Muhammad Ibrahim alone. His co. plaintiffs, however, not only did not object to this but actually participated in the proceedings and appeared before the arbitrator who made his award on 18‑1 65 dismissing the claim of the plaintiffs. The plaintiffs, who are now petitioners, raised several objections to the award on merits but did not object to the competence of the Maulana to act as the arbitrator by reason of the‑ fact that the arbitration agreement had only been signed by one of the plaintiffs. The other objections were heard by the trial Court and rejected. The award was accordingly made a rule of the Court. The plaintiffs went up in appeal to the District Judge, Peshawar, and there, too, in the memorandum of appeal this objection was not raised. The objection was raised for the first time during arguments. It was disallowed, as the plaintiffs were found to have associated In the arbitration proceedings without any objection and also failed to take this objection either in their objection petition before the trial Court or in the memorandum of appeal. The award was also upheld on merits and the appeal was dismissed. The plaintiffs came to the High Court in second appeal, and the only point urged in the High Court was that the reference was without jurisdiction and void, because, only one of the plaintiffs had signed the reference. The High Court, for the same reasons which prevailed with the District Judge, dismissed the appeal with costs. The plaintiffs now seek special leave to appeal. It is contended on their behalf that, since an arbitration agreement under section 2(a) means a "written agreement to submit present or future differences to arbitration" and section 21 of the Arbitration Act provides that in a suit the differences and disputes shall be referred to arbitration only if "all the parties interested agree", the present reference signed by only one plaintiff was clearly bad, In support of this contention, reliance is also sought to be placed on a Full Bench decision of the Calcutta High Court in the case of Laduram‑Nathmull v. Nandalal Karuri (A I R 1920 Cal. 113), where it was held that "unless all the parties interested in a dispute consent a Court has no jurisdiction to make an order of reference to arbitration". The facts of that case were that, on the petition of the plaintiff alone the Court ordered that the disputes be referred to arbitration of a sole arbitrator "with the consent of all parties". The arbitrator made an award which was challenged on the ground that one of the defendants in the suit had not consented to the reference. The admitted position in that case was that the defendant whose consent was not obtained was a defendant against whom bankruptcy proceedings were pending and he had, therefore, disappeared. The case is, therefore, clearly distinguishable on facts. Section 21 of the Arbitration Act does not lay down that the agreement of all the parties should be In writing. It will, therefore, be sufficient fn our opinion, if such an agreement can be presumed' or inferred from the conduct of the parties. In the present case, there can be no manner of doubt that the other plaintiffs knew that the arbitration agreement had only been signed by one of their co‑plaintiffs but they never objected to the validity of the reference on this ground. In fact, they accepted the reference, appeared before the arbitrator and even in the proceedings taken in the trial Court to challenge the award without raising this objection. They did not even take this objection in the petition of objection filed in the trial Court or in the memorandum of appeal submitted before the District Judge, but raised it for the first time only in the course of arguments before the appellate Court. In these circumstances, we are of the opinion that the Courts below were fully justified in holding that they bad, in fact, agreed to the arbitration, and, therefore, were precluded from raising this objection at such a late stage in the course of arguments in the appeal before the District Judge. We see no reason to interfere and accordingly dismiss this petition. Leave refused.