1996 PLP 503 (CLC)

Facts giving rise to this revision petition briefly stated are that petitioner/plaintiff instituted a civil suit, for issuance of a decree for permanent injunction restraining respondents/defendants from interfering with construction work of plaintiff's market and as well with the construction of Parda‑wall owned by the plaintiff, in the Court of Civil Judge, Rawalpindi.

2. It was averred by the plaintiff that he purchased house property No.C/49 situated in Moti Bazar, Rawalpindi and sometime after he decided to demolish the house and instead construct a small market comprising of shops for which purpose he got construction plan approved by the Rawalpindi, Municipal, Corporation which is mark 'A' on the record. Property No.C‑50 belongs to respondents which is adjacent to Property No.C/49 with a wall in between the two which is in fact the subject‑matter of dispute.

3. The petitioner/plaintiff when started reconstructing the wall, the respondents/defendants interfered with the construction claiming that originally the width of the wall in‑between the two houses was 18 inches and it had remained all along the joint property of both the parties as a common wall and the petitioner/plaintiff as such had no right to use and occupy exclusively to his own benefit. As a result of such dispute some criminal litigation also ensued therefrom. Since the controversy could not finally be resolved otherwise, the petitioner/plaintiff, therefore, sought the assistance of the Civil Court.

4. The suit was resisted by the respondents/defendants, who raised several plea in their written statement and most crucial among them was that the petitioner/plaintiffs and respondents/defendants had With their mutual agreement in writing dated 11‑4‑1987 referred the matter to the arbitrators namely Ch. Muhammad Tufail, Muhammad Shahid, Abdur Razzaq and Ghulam Siddique Saithi who had in pursuance of the reference agreement announced award on 14‑4‑1987, Exh: P‑1 on the record. By virtue of award dated 14‑7‑1987, it was decided that the petitioner/plaintiff shall be entitled to construct wall 4‑1/2" in width at his own expense and this wall constructed by the petitioner/plaintiff would be treated as the property of the respondents/defendants and that the remaining 13‑1/2" space left from the original plenth of 18" would go to the petitioner/plaintiff. '

5. It is pertinent to note that the petitioner/plaintiff neither. in his plaint nor in evidence challenged the reference agreement dated 11‑4‑1987 nor the award which fact though was within his knowledge because the document of award bears his signatures presumably in token of its acceptance though in evidence he says that the signatures were obtained on white paper. Obviously the plaintiff suppressed this important aspect of the case intentionally: Anyhow in view of the controversial points obtained from the pleadings of the parties, the learned Trial Court framed the following six issues:‑ (1) Whether the plaintiff is entitled to the decree prayed for in the Grounds detailed in the plaint?.OPP. (2) Whether the suit wall belongs to the defendants? OPD. (3) Whether the plaintiff has no cause of action and locus standi? OPD (4) Whether the suit is not maintainable? OPD (5) Whether the defendants are entitled to get special costs? OPD (6) Relief. On the conclusion of the trial, the suit was dismissed by the Trial Court vide judgment and decree dated 7‑7‑1991. The petitioner/plaintiff being aggrieved assailed the judgment and decree in the Court of District Judge, Rawalpindi, that too was dismissed and the findings of the Trial Court were upheld vide judgment and decree dated 27‑1‑1992. Hence, this petition.

6. Counsel for the petitioner argues that both the Courts below have based their decision on the so‑called award dated 14‑4‑1987 which in fact has no legal sanctity for the reasons: (i) According to para. 2 of the First Schedule read. With section 3 of Arbitration Act, 1940 if the reference is to an even number of arbitrators, as in the instant case, then it becomes the legal duty of the arbitrators to appoint an umpire within the period of one month from the date of their appointment. Since the arbitrators proceeded with the matter. without performing their statutory obligation by not appointing an umpire therefore, the award is invalid and cannot form the basis of decree; (ii.) as one of the arbitrators, namely Muhammad Tufail neither signed the award nor he supported the contents of award wholly, therefore, the award O question is a doubtful document and no reliance can be placed on it; (iii) lastly, the learned counsel though half‑heartedly urged that in the absence of the reference agreement1n writing the award is invalid and it is mere a waste paper and cannot be used in evidence. I would take up these objections one by one. First point.‑‑The necessity for the appointment of an umpire arises only when the reference is to an even number ‑of arbitrators. The wisdom behind the scheme is that in case there is difference of opinion between two sets of arbitrators, being even in number, the award will be invalid for being not executable. To avoid such situation, the appointment of an umpire becomes a statutory obligation. Now the question arises whether the award in question that is an unanimous award or at least a majority award, if the decision of Muhammad Tufail, Arbitrator is excluded altogether becomes invalid, on a mere technical ground that the arbitrators had failed to appoint an umpire though the necessity occurred at no stage, within the period of one month from the date of their appointment. The answer is not. The award suffers from no illegality and it is a valid award and the parties who voluntarily opted to refer their dispute to a domestic tribunal of their own choice then they are bound by the award. The provisions of para. 2 of Schedule I, read with section 3 of the Arbitration Act, 1940 are directory and not mandatory. The prepondrance of judicial opinion is also in favour of the view that the word "shall" in para. 2 of First Schedule to Arbitration Act, 1940 does not make the provision mandatory in the sense that its violation either will vitiate the proceedings or render the award invalid. Particularly when the award in question is made in arbitration out of Court and 'thereafter it has been acted upon. Despite the' fact it is not made rule of the Court, it still remains a valid award and the parties entering into reference agreement are legally bound by it and they are estopped to frustrate the object of whole of Arbitration Scheme on any flimsy ground. Such award can form the 'legal basis for the parties to sue or defend. Second‑point:‑ Muhammad Tufail is admittedly one of the four nominated arbitrators who in his statement recorded as P.W. 2 on 13‑3‑1989 by the Trial Court, admits' that he did participate in 'Jirga' though the award Exh. P.1 was not written in his presence nor his signatures were obtained. He further states that the decision made by the Arbitrators in his presence was that the disputed wall of 4‑1/2" width would be constructed by Allah Ditta the plaintiff and it would remain under his. ownership. He admits his participation in the proceedings of award and its announcement except, he only differs on point of ownership of the newly constructed wall. As against the opinion of other three arbitrators on similar point, the opinion of only one arbitrator carries no weight and at the most it can be treated as a minority opinion. Third‑point: Clause (a) of section 2 of the Arbitration Act, 1940 provides definition of "arbitration agreement" as under:‑ Section 2(a) "arbitration agreement" means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not". It is abundantly clear from the above definition that the arbitration agreement must be in writing. In the present case there is a reference of arbitration agreement dated 11‑8‑1987 in the document of award Exh. P.1 and the petitioner/plaintiff raised no objection as to the existence of arbitration agreement in writing throughout the proceeding of the suit. During the trial the respondents/defendants made an application under Order 13, Rule 2, C.P.C. for production of arbitration agreement dated 11‑8‑1987 and also appended the original copy of the agreement with the application. The petitioner/plaintiff resisted the application only on the ground that the application was moved at a belated stage but said not even a single word was said challenging the genuineness of the document nor its execution and authenticity. So much so the petitioner/plaintiff did not cross‑examine the arbitrators or even the respondent/defendant when their statements were recorded in evidence on the point. Though the learned Trial Court did not allow the application for production of arbitration agreement, yet the Court could take judicial notice of the document found on the record. Particularly when its genuineness and execution was not denied by the contesting party and its reference was also found in another document before the Court duly exhibited that is award in writing Exh. P.1. Legal inference drawn from the record before the Court and other attending circumstances goes in favour of the existence of arbitration agreement in writing dated 11‑8‑1987. So, this objection of the petitioner/plaintiff also fails. (Cases referred): (PLD 1952 Peshawar 23); (AIR 1970 SC 833); (AIR: 1961 SC 1077); (PLD 1971 SC 516); (AIR 1979 Bombay 149); (PLD 1976 Karachi 961); (PLD 1987 SC 107); (PLD 1974 SC 61); (AIR 1962 Mys. 135); (PLD 1954 Sindh 241); (PLD 1956 Lahore 202); (PLD 1958 Karachi 378). No other point was urged or discussed by either side. The revision petition fails. The impugned judgments and decree dated 7‑7‑1991 and 27‑1‑1992 passed by Civil Judge, Rawalpindi and Additional District Judge, Rawalpindi, are upheld. No order as to costs. H.B.T./A‑924/L Revision dismissed.