P L D 1955 Peshawar 52 (PLP)
Mst. SHAMA BIBI-Petitioner Versus Nawabzada MUHAMMAD UMAR KHAN etc.-
| Citation | P L D 1955 Peshawar 52 (PLP) |
| Forum / Court | |
| Bench Members | Muhammad Shafi, J |
| Parties | Mst. SHAMA BIBI-Petitioner Versus Nawabzada MUHAMMAD UMAR KHAN etc.- |
| Primary Law | On the 22nd of December 1954, Senior Sub-judge Mardan, issued notices to all the heirs, who were respondents 1 to 8 in the application, of the late Nawab, except of course the applicant, to appear before him on the 3rd of January 1955, and show cause why should the proceedings before the arbi trator be not stayed pending the decision of the principal application. The order contained the direction that if the respondents were not served personally they should be done so by substituted service. On this date, when the application was called, the Court found that respondents Nos. 3 to 5 were not served, because they were serving in the Army. He consequently ordered that the Army-address of these three gentlemen should be given by the petitioner within three days of the order. He, however, did not stop here, but passed a further order in vernacular, which when translated in English would be somewhat to the following effect :, After this the Court wrote a date 7th February 1955, which probably was meant to be the next date in the case, and then signed the order. He then added a ~ post-script to this order which read as follows : |
Q1: What are the key laws and sections cited in P L D 1955 Peshawar 52 (PLP)?
This judgment primarily cites: On the 22nd of December 1954, Senior Sub-judge Mardan, issued notices to all the heirs, who were respondents 1 to 8 in the application, of the late Nawab, except of course the applicant, to appear before him on the 3rd of January 1955, and show cause why should the proceedings before the arbi trator be not stayed pending the decision of the principal application. The order contained the direction that if the respondents were not served personally they should be done so by substituted service. On this date, when the application was called, the Court found that respondents Nos. 3 to 5 were not served, because they were serving in the Army. He consequently ordered that the Army-address of these three gentlemen should be given by the petitioner within three days of the order. He, however, did not stop here, but passed a further order in vernacular, which when translated in English would be somewhat to the following effect :, After this the Court wrote a date 7th February 1955, which probably was meant to be the next date in the case, and then signed the order. He then added a ~ post-script to this order which read as follows : as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 1955 Peshawar 52 (PLP)?
The case was heard and decided by the bench comprising: Muhammad Shafi, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 1955 Peshawar 52 (PLP) (Mst. SHAMA BIBI-Petitioner Versus Nawabzada MUHAMMAD UMAR KHAN etc.-). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Muhammad Shafiq, for Petitioner.
- Sajjad Ahmad Jan, Peer Bakhsh Khan and Ghulam Haider, for Respondent.
Headnotes / Summary
Civil Procedure Code (h of 1908), O. XXXIX, r. 1-Order not complying with provisions-Not an order contemplated by O. XXXIX, r. 1-Revision competent-Court should be reluctant to issue injunction, stopping arbitration proceedings. On an application for issue of injunction restraining respondents from prosecuting proceedings before an arbitrator, the Court ordered notices to be issued to respondents to show cause against the application. Some of the respondents could not be served and the Court ordered notices to be issued to these respondents requiring them not to continue the arbitra tion proceedings and a letter of request to the arbitrator to the same effect. The arbitrator (Hon'ble the Judicial Commissioner, N.-W. F. P.) forwarded the entire case to the High Court to see if the Court's order was legal. On an objection being taken by the petitioner's counsel that the order passed was appealable and that revision was not competent. Meld, that the impugned order was not passed under Order 39 Rule
1. In actual fact this order was made because the Court realized that it could riot pass an effective order under O. XXXIX, r. 1 without first getting notices served on all the respondents, The order was trot covered by any express provision of law and the only remedy open to the aggrieved persons and the arbitrator was to move the High court to exercise its revisional powers. Order 39 Rule 1 lays down a definite procedure for the issue of temporary injunction and the Court cannot invent procedure independently of that provision of law. Courts should be extremely reluctant to interfere with the proceedings of an arbitrator and when they do interfere they should mention the exceptional circumstances, calling for the interference of the Court very expressly and clearly in the order. ORDER MUHAMMAD SHAFI, J.
Lieut. Col. Muhammad Akbar Khan, popularly known as Nawab of Hoti, by reason of his being a recipient of the title of Nawab from the rulers of undivided India, was an owner of enormous property both movable and immovable in the North-West Frontier Province. On his death, his heirs, which consisted of his five sons, namely, Muhammad Umar Khan, Muhammad Amir Khan, Abdul Ghafar Khan, Munir Khan and Khalid Khan his two daughters, Mst. Sultan Parwar and Mst. Gauhar Taja, and his two widows Mst. Shama Bibi and Mst. Hashmat Sultana, by a deed of reference dated 6th of May 1954, appointed Honourable Khan Muhammad Ibrahim Khan, Judicial Commissioner North-West Frontier Province, as an arbitrator to divide the property according to the dictates of Muslim Law. The arbitrator entered on the reference on the 29th of September 1954, when he issued notices to all the parties to the reference to appear before him either in person or through their authorized agents on the 8th of October, 1954. As the proceedings before the arbitrator which followed the above order would show, all the heirs of the late Nawab did actually make a response to the above notices by not only appearing before the arbitrator either personally or through their respective advocates, but taking very keen interest in the proceedings. On the 21st of December 1954, however, Mst. Shama Bibi, one of the widows of the late Nawab, lodged an application purporting to be under sections 5, 11 and 30 of the Arbitration Act X of 1940, in the Court of Senior Sub- Judge Mardan, for the revocation of the authority of the arbitrator and the cancellation of the arbitration proceedings. It was also prayed in the application that the arbitrator should be directed not to proceed with the case when it came up for hearing before him on the 7th of January 1955. The same day another application, purporting to be under Order 39 Rule 1 of the Code of Civil Procedure, was made to the same Court by Mst. Shama Bibi requesting for the issue of temporary injunction to the other heirs of the late Nawab, rest raining them from taking part in the arbitration proceedings or from taking any step to have the dispute decided by the arbitrator pending the decision of the main application. This application further contained a prayer that the arbitrator should be ordered not to proceed with the case in the meantime. "Since the hearing before the arbitrator is fixed for the 7th January 1955, and respondents Nos. 3 to 5 cannot be served till then, a notice should be issued to these res pondents not to continue the arbitration proceedings till the decision of the application for stay. Respondent No. 7 has no objection to this application". "A letter of request in English to issue through the Registrar to respondent No. 9 (Hon'ble Khan Muhammad Ibrahim Khan)". On the receipt of the letter of request referred to above, Honourable the Arbitrator, has forwarded the entire case on to this Court to see if the order passed by the learned Senior Sub-Judge, Mardan, was in order and legal. I have heard the parties' counsel at considerable length. Qazi Muhammad Shafiq, the counsel for Mst. Shama Bibi, at the very outset raised an objection that as the order passed by the Court below is appealable, this Court has no juris diction to exercise its revisional powers. This objection seems to have been raised under an erroneous assumption that the impugned order was passed under Order 39 Rule 1 of the Civil Procedure Code, while in actual fact this order was made because the Court realized that it could not pass an effective order under the above provision of law without first getting the notices served on all the respondents. The order A in question does not seem to be covered by any express provision of law. It may, if the law is stretched too much in favour of Mst. Shama Bibi, be said to have been made under Section 151 of the Code of Civil Procedure, but then, if it is made under that section, or under no provision of law, the only remedy open to the aggrieved persons and the arbitrator was to move this Court to exercise its revisional powers. A The preliminary objection is, thus, unfounded and is hereby overruled. The next point which requires determination is whether the learned Senior Sub-judge could issue the prohibition in question to respondents Nos. 1 to 8, and the letter of request to the arbitrator. Apart from the fact that this order passed by the Court is vague, I have not been able to find any provision of law and none indeed has been quoted at the Bar by either the counsel for Mst. Shama Bibi or the one appearing for Mst. Gauhar Taja, the only two persons who did not want to have the case decided by the arbitrator, under which such order could have legally been passed. Order 39 Rule 1 of the Civil Procedure Code lays down a definite procedure for the issue of temporary injunction. I cannot possibly imagine how can a Court of law invent some other procedure for the issue of the same injunction independent of the provision of law. In the presence of the express provision of law on this point, as is now well established, even the inherent powers contained in section 151 of the Civil Procedure Code cannot be attracted. Assuming, however, purely for the sake of argument, that such powers are attracted, still they can only be exercised, not arbitrarily or capriciously, but only when it is absolutely necessary to do the right or undo the wrong in the course of the administration of justice. In particular in cases where the parties create a. domestic tribunal of their own in preference to the Courts established by law of the land to decide their disputes, and this they do without coercion outside influence or pressure, the Courts should be extremely reluctant, slow and sparing in exercising these powers and interfering un necessarily with the proceedings of such tribunals. Even in cases where the law permits the Courts to interfere with the proceedings of an arbitrator, who is the judge of the parties' own choice, they should do so strictly in accordance with the relevant law or when they are convinced that otherwise there is a chance of miscarriage of justice. They should, however, mention the exceptional circumstances, calling for the inter ference of the Court very expressly and clearly in the order. Now, looking at the order in question of the Senior Sub-judge Mardan, in the light of the observations mentioned above, it would be seen that the Court gives no reason whatsoever as to why was it necessary for him to stop the arbitration proceedings or issue the letter of request. In my view, merely because it was not possible for him to issue an effective order under Order 39 Rule 1 of the Civil Procedure Code, before the 7th of January 1955, the date fixed before the arbitrator, it was not such an exceptional circumstance which should have entitled him to bring into play his inherent powers. Assuming that the arbitrator might have given his award on that date, still the aggrieved party could not be said to be without a remedy because the award does not become effective until it is made a rule of law by a Court of competent jurisdiction, where all concerned can raise all possible objection against the conduct of an arbitrator. The order of the Senior Sub-Judge, Mardan, passed on the 3rd of January is, thus, completely without jurisdiction, and is, therefore, hereby vacated, and set aside. Since this Court was moved by Honourable the arbitrator, I shall leave the parties to bear their own costs in this Court. A. H. Order accordingly.
Judgment & Decree
MUHAMMAD SHAFI, J.
Lieut. Col. Muhammad Akbar Khan, popularly known as Nawab of Hoti, by reason of his being a recipient of the title of Nawab from the rulers of undivided India, was an owner of enormous property both movable and immovable in the North-West Frontier Province. On his death, his heirs, which consisted of his five sons, namely, Muhammad Umar Khan, Muhammad Amir Khan, Abdul Ghafar Khan, Munir Khan and Khalid Khan his two daughters, Mst. Sultan Parwar and Mst. Gauhar Taja, and his two widows Mst. Shama Bibi and Mst. Hashmat Sultana, by a deed of reference dated 6th of May 1954, appointed Honourable Khan Muhammad Ibrahim Khan, Judicial Commissioner North-West Frontier Province, as an arbitrator to divide the property according to the dictates of Muslim Law. The arbitrator entered on the reference on the 29th of September 1954, when he issued notices to all the parties to the reference to appear before him either in person or through their authorized agents on the 8th of October, 1954. As the proceedings before the arbitrator which followed the above order would show, all the heirs of the late Nawab did actually make a response to the above notices by not only appearing before the arbitrator either personally or through their respective advocates, but taking very keen interest in the proceedings. On the 21st of December 1954, however, Mst. Shama Bibi, one of the widows of the late Nawab, lodged an application purporting to be under sections 5, 11 and 30 of the Arbitration Act X of 1940, in the Court of Senior Sub- Judge Mardan, for the revocation of the authority of the arbitrator and the cancellation of the arbitration proceedings. It was also prayed in the application that the arbitrator should be directed not to proceed with the case when it came up for hearing before him on the 7th of January 1955. The same day another application, purporting to be under Order 39 Rule 1 of the Code of Civil Procedure, was made to the same Court by Mst. Shama Bibi requesting for the issue of temporary injunction to the other heirs of the late Nawab, rest raining them from taking part in the arbitration proceedings or from taking any step to have the dispute decided by the arbitrator pending the decision of the main application. This application further contained a prayer that the arbitrator should be ordered not to proceed with the case in the meantime. On the 22nd of December 1954, Senior Sub-judge Mardan, issued notices to all the heirs, who were respondents 1 to 8 in the application, of the late Nawab, except of course the applicant, to appear before him on the 3rd of January 1955, and show cause why should the proceedings before the arbi trator be not stayed pending the decision of the principal application. The order contained the direction that if the respondents were not served personally they should be done so by substituted service. On this date, when the application was called, the Court found that respondents Nos. 3 to 5 were not served, because they were serving in the Army. He consequently ordered that the Army-address of these three gentlemen should be given by the petitioner within three days of the order. He, however, did not stop here, but passed a further order in vernacular, which when translated in English would be somewhat to the following effect :- "Since the hearing before the arbitrator is fixed for the 7th January 1955, and respondents Nos. 3 to 5 cannot be served till then, a notice should be issued to these res pondents not to continue the arbitration proceedings till the decision of the application for stay. Respondent No. 7 has no objection to this application". After this the Court wrote a date 7th February 1955, which probably was meant to be the next date in the case, and then signed the order. He then added a ~ post-script to this order which read as follows :- "A letter of request in English to issue through the Registrar to respondent No. 9 (Hon'ble Khan Muhammad Ibrahim Khan)". On the receipt of the letter of request referred to above, Honourable the Arbitrator, has forwarded the entire case on to this Court to see if the order passed by the learned Senior Sub-Judge, Mardan, was in order and legal. I have heard the parties' counsel at considerable length. Qazi Muhammad Shafiq, the counsel for Mst. Shama Bibi, at the very outset raised an objection that as the order passed by the Court below is appealable, this Court has no juris diction to exercise its revisional powers. This objection seems to have been raised under an erroneous assumption that the impugned order was passed under Order 39 Rule 1 of the Civil Procedure Code, while in actual fact this order was made because the Court realized that it could not pass an effective order under the above provision of law without first getting the notices served on all the respondents. The order A in question does not seem to be covered by any express provision of law. It may, if the law is stretched too much in favour of Mst. Shama Bibi, be said to have been made under Section 151 of the Code of Civil Procedure, but then, if it is made under that section, or under no provision of law, the only remedy open to the aggrieved persons and the arbitrator was to move this Court to exercise its revisional powers. A The preliminary objection is, thus, unfounded and is hereby overruled. The next point which requires determination is whether the learned Senior Sub-judge could issue the prohibition in question to respondents Nos. 1 to 8, and the letter of request to the arbitrator. Apart from the fact that this order passed by the Court is vague, I have not been able to find any provision of law and none indeed has been quoted at the Bar by either the counsel for Mst. Shama Bibi or the one appearing for Mst. Gauhar Taja, the only two persons who did not want to have the case decided by the arbitrator, under which such order could have legally been passed. Order 39 Rule 1 of the Civil Procedure Code lays down a definite procedure for the issue of temporary injunction. I cannot possibly imagine how can a Court of law invent some other procedure for the issue of the same injunction independent of the provision of law. In the presence of the express provision of law on this point, as is now well established, even the inherent powers contained in section 151 of the Civil Procedure Code cannot be attracted. Assuming, however, purely for the sake of argument, that such powers are attracted, still they can only be exercised, not arbitrarily or capriciously, but only when it is absolutely necessary to do the right or undo the wrong in the course of the administration of justice. In particular in cases where the parties create a. domestic tribunal of their own in preference to the Courts established by law of the land to decide their disputes, and this they do without coercion outside influence or pressure, the Courts should be extremely reluctant, slow and sparing in exercising these powers and interfering un necessarily with the proceedings of such tribunals. Even in cases where the law permits the Courts to interfere with the proceedings of an arbitrator, who is the judge of the parties' own choice, they should do so strictly in accordance with the relevant law or when they are convinced that otherwise there is a chance of miscarriage of justice. They should, however, mention the exceptional circumstances, calling for the inter ference of the Court very expressly and clearly in the order. Now, looking at the order in question of the Senior Sub-judge Mardan, in the light of the observations mentioned above, it would be seen that the Court gives no reason whatsoever as to why was it necessary for him to stop the arbitration proceedings or issue the letter of request. In my view, merely because it was not possible for him to issue an effective order under Order 39 Rule 1 of the Civil Procedure Code, before the 7th of January 1955, the date fixed before the arbitrator, it was not such an exceptional circumstance which should have entitled him to bring into play his inherent powers. Assuming that the arbitrator might have given his award on that date, still the aggrieved party could not be said to be without a remedy because the award does not become effective until it is made a rule of law by a Court of competent jurisdiction, where all concerned can raise all possible objection against the conduct of an arbitrator. The order of the Senior Sub-Judge, Mardan, passed on the 3rd of January is, thus, completely without jurisdiction, and is, therefore, hereby vacated, and set aside. Since this Court was moved by Honourable the arbitrator, I shall leave the parties to bear their own costs in this Court. A. H. Order accordingly.