2022 PLP 355 (CLC)

ABDUL HAMEED BALOCH, J.

The petitioners/defendants assailed judgment and decree dated 31st December, 2013 (impugned judgment and decree) passed by learned Additional District Judge-VI, Quetta, (appellate court), whereby the appeal filed by the respondents/plaintiffs was allowed and the judgment and decree dated 25th October, 2012 passed by learned Senior Civil Judge-II, Quetta (trial court) was set aside and the suit filed by the respondents/plaintiffs was decreed as prayed for.

2. Succinct facts of the case are that the respondents/plaintiffs filed a suit for declaration and permanent injunction against the petitioners/defendants before the court of Senior Civil Judge-II, Quetta, with the following prayer: a. Declaring that the plaintiffs have every right and entitlement to utilize the water stored in the constructed ground water tank and through electric machine its supply to the floors of the multi storey building with the name and style of Abdul Salam Cloth Center; b. Declaring in terms of Arbitration Award dated 21-9-2010, the plaintiffs have every right to install new pipe line adjacent to the existing ground water tank and the defendants have no lawful and legal justification to obstruct such construction work including utilization of the ground water tank; c. Declaring that the defendants are illegally and unjustifiably obstructing the utilization of the ground water tank, which has been constructed for storage of water of multi storey building with the name and style of Abdul Salam Cloth Center; d. Pending disposal of the main suit, the defendants, their agents and representatives acting on their behalf be restrained from the lawful construction work of the plaintiffs with regard to the installation of new pipe line to be linked with the existing ground water tank; e. Any other relief deemed fit and proper by this Hon'ble court with cost of the suit.

3. The petitioners/defendants contested the suit on legal as well as factual grounds by filing written statement and prayed for dismissal of the suit.

4. Out of the pleadings of the parties the learned trial court framed following issues: i. Whether the suit is not maintainable in view of preliminary legal objections A, B & C raised by the defendants? ii. Whether the existing ground water tank has been constructed by previous owner or by the defendants Nos.1 & 2? iii. Whether any arbitration award has been made and whereby the plaintiffs were allowed to install a separate water pipeline to continue their use of water from existing water tank? iv. Whether the plaintiffs have right and entitlement to utilize the existing ground water tank? v. Whether the applicant is entitled to the relief claimed for? vi. The Relief? The issue No. 1 was reframed by the trial court in terms of Order XIV, Rule 5, C.P.C.: Whether suit of the plaintiff is hit by the provisions of Section 32 of Arbitration Act?

5. The parties to the lis produced their respective evidence. The trial court vide judgment and decree dated 25th October, 2012 dismissed the suit, against which the respondents/ plaintiffs filed appeal before learned Additional District Judge-VI, Quetta, who vide impugned judgment and decree dated 31st December, 2013 allowed the appeal, set aside the judgment and decree of the trial court and decreed the suit as prayed for, hence the petitioners/ defendants are before this court.

6. Learned counsel for the petitioners/ defendants contended that the suit of the respondents/ plaintiffs was hit by the provisions of Section 32 of the Arbitration Act. The contention of the petitioners/ defendants is that the dispute has been resolved by the Arbitrator; therefore, the suit is not competent. The trial court has rightly dismissed the suit of the respondents/plaintiffs. The learned appellate court decreed the suit of the respondents/plaintiffs against the law which is not sustainable, liable to be set aside and the judgment and decree of the trial court is liable to be upheld/ restored.

7. The learned counsel for the respondents/plaintiffs contended that the learned appellate court has rightly appreciated the evidence on record and come to the right conclusion. The learned trial court without valid reason dismissed the suit. The learned appellate court has rightly set aside the judgment and decree of the trial court and decreed the suit of the respondents/ plaintiffs and prayed for dismissal of the revision petition.

8. Heard and perused the record. The respondents/ plaintiffs filed a suit for declaration and permanent injunction stating that the property bearing khasra No. 392 khewat/Khatooni Nos. 181/ 214 measuring 656 square feet situated in Mohal and Mouza Ward No. 18, Tappa Urban-I, Tehsil and District Quetta was purchased from its previous owner through registered sale deed dated 12th April, 2003. The purchased property is a multi storey building comprising of basement, ground floor and upper stories. The previous owner constructed ground water tank in front the shop of petitioners/ defendants and water connection was installed. The petitioners/ defendants have started interference in the right of the respondents/ plaintiffs with regard to utilization of ground water tank by cutting the pipe line, due to which the Arbitrator resolved the matter through arbitration dated 21st September, 2010. The petitioners/ defendants contested the suit by raising objection with regard to maintainability of the suit in view of the arbitration and other legal grounds. The learned trial court dismissed the suit; while the appeal filed by the respondents/ plaintiffs was allowed and suit of the respondents/ plaintiffs was decreed vide impugned judgment and decree.

9. The trial court in order to resolve the controversy appointed local commissioner, who in presence of the counsel of both the parties as well as parties inspected the site and submitted report. The relevant portion of the report is reproduced hereunder: "

. The entire shops situated in these streets have almost extended/ encroached over more than 40 sq: ft: out of their original measurement of the shops toward street as southern side. The defendants were doing business of the cloths over the extended/ encroached area toward street. The water tank was almost existing beneath the encroached/extended area of the shops of defendants as Thara and only half or one sq: ft: could come under the original measurement of the premises/beneath of the shop of the defendants."

10. The respondents/plaintiffs in para No.4 of their plaint mentioned "where the ground water tank was constructed, the land beneath thereof vests with Municipal Corporation Quetta, which is a part of the street." The trial court as well as appellate court did not elaborate this aspect of the case. Even no issue in this regard was framed. The question is whether the water tank constructed in the road or belongs to Municipal Corporation Quetta or owned by the parties? The trial and appellate court first should have resolved this question.

11. The learned trial court framed issue No. 3 "Whether any arbitration award has been made and whereby the plaintiffs were allowed to install a separate water pipeline to continue their use of water from existing water tank? and resolved the issue in para No. 10 of the judgment as under: "

10. The above prayed clause would reveal that plaintiffs have also sought decree in terms of alleged Arbitration Award dated 21st September 2010, while section 32 of the Arbitration Act specifically bars civil suit on any ground, whatsoever, for a decision upon the existence, effect or validity of an arbitration agreement or award. Thus, the objection raised by the defendants in their written statement is sustained and issue is therefore, decided in affirmative."

12. The record transpires that by consent of the parties the Arbitrators Haji Allah Gul, Haji Muhammad Azeem and Haji Jamal-ud-Din decided the dispute through arbitration which states as under:

13. The Arbitrators decided the dispute out of court. At that time the matter was not pending before any court when the matter was referred to the Arbitrators. Admittedly the Award was not presented before the court for making it Rule of the Court.

14. The question is whether any arbitration award passed out of the court on the basis of authorized document which was accepted by the parties without duress, with their free will and signed the document, meaning thereby that the parties on account of an agreement agreed to adopt a particular mode to resolve their dispute. This court in case Malik Sardar Muhammad Qasim v. Malik Haji Abdul Ghaffar 2012 CLC 316 held: "

. Even otherwise. under the section 42 of the Specific Relief Act a party is allowed to approach the Court, when a person is denying or interested to deny his title or character. The Court along with the award also could consider other related evidence and pass an appropriate order. Thus in the light of the above when perusing the record and evidence, it appears that at no stage the appellant/defendant claimed ownership of the disputed land, on contrary the respondent/plaintiff from the very beginning claiming that the disputed land and well, on which flour grinding machine is installed, belongs to rum and the appellant/ defendant unjustly or wrongly trying to grab the same.

" Reliance is also placed on the case of Ch. Muhammad Saleem v. Muhammad Akram PLD 1971 SC

516. It was held therein: "Section 32 of the Arbitration Act does not, debar a defendant in a suit from setting up a plea that an un-filed award which had been fully performed by him is a complete answer to the plaintiff's claim which was the subject-matter of the award. Such a defence is not "founded on the plea that there is an award which bars the suit, but that the parties had by mutual agreement settled the dispute and that the agreement and the subsequent actions of the parties are binding." The defendant in such a case does not seek to obtain any decision upon the existence, effect or validity of the award but merely seeks to assert that the claim sought to be set up by the plaintiff has already been satisfied by the mutual Consent of the parties. There can be no doubt that where the parties have referred their disputes to a domestic forum that forum may decide those disputes either by adjudicating upon them or it may decide upon the basis of the consent of the parties but the decision of the forum whether by consent or in invitum will be an award and not a mere compromise or agreement which can be enforced allunde. But if the award has been made in an arbitration out of Court and the award has neither been filed nor made a rule of Court then the parties will be entitled to sue or defend on the basis of that award if it has been accepted and acted upon by the parties by mutual consent. Muhammad Yousaf v. S. Haji Muhammad Hussain Rowther AIR 1964 Mad. 1 and Kashinathea Yamosa Kabadi and others v. Naraingea Bhaskarea Kabadi and others AIR 1961 SC 1077 ref". In view of above the learned trial court has wrongly held that the suit of the respondents/plaintiffs is barred under Section 32 of the Arbitration Act, 1940. For above reasons the instant revision petition is accepted. The judgments and decrees dated 25th October, 2012 and 31st December, 2013 passed by learned Senior Civil Judge-II, Quetta and learned Additional District Judge-VI, Quetta respectively are set aside. The matter is remanded to the trial court with direction to frame issue as referred above and direct the respondents/plaintiffs to file amended suit by impleading Municipal Corporation Quetta as party and after obtaining written statement, if required, call the record from Municipal Corporation, afford opportunity to the parties to produce evidence, if opted and then decide the case strictly on merit in accordance with law within possible period of four months. No orders as to cost. ZH/22/Bal. Order accordingly.