2025 PLP 2053 (CLC)

GUL HASSAN TAREEN, J.

This civil revision petition is directed from concurrent judgments of two courts, whereby petitioners' suit was dismissed.

2. Briefly stated, facts of the case are as follows:- Petitioners instituted civil suit against the respondents Nos. 3 to 11 that they along with the respondents 3 to 5 had referred differences to the arbitration vide arbitration agreement dated 28 May 2002. The arbitrators made the arbitration award dated 30 May 2002 ('Award') whereby land bearing Survey Nos. 569/516, 83, admeasuring 5 rods 22 poles situated in Mahal Khushkaba Yaro was conferred upon the respondents Nos. 3 to 5 and declared them owners of that, while in exchange, declared the petitioners to have the land of respondents Nos. 2 to 5 described at paras 2 and 3 of the plaint ('the Land'). Possession of the Land was handed over to the petitioners, however, respondents Nos. 3 to 5 started interference with their possession on the Land. In prayer clause, petitioners sought declaration that they are owners of the Land; declaration that respondents Nos. 3 to 5 are illegally interfering with their possession on the Land and, to restrain them from doing so, transfer of mutation in their names pursuant to the award.

3. Suit was contested by the respondents Nos. 3 to 5 by presenting written statement. The arbitrators also presented written statement. Later, respondents Nos. 1 and 2 were impleaded as defendants Nos. 1 and 2 by filing first amended suit. A common amended written statement was presented on behalf of the respondents Nos. 1 to

5. After framing issues and recording evidence, the learned Trial Judge vide judgment and decree dated 24 December, 2013 dismissed the suit, which was sustained on appeal by the learned District Judge, Pishin vide impugned judgment and decree dated 16 August 2022.

4. Mr. Amir Jan Kakar, learned counsel for the petitioners submitted that though, respondent No. 1 was recorded owner of the Land, however, she had authorized her husband, the respondent No. 3, to refer the differences to the arbitration. Thus, the differences were referred to the arbitrators with her expressed consent and for this reason, respondent 1 along with the respondents Nos. 3 to 5 were obliged to admit the award. Next submitted that the learned Trial Judge had not framed proper issues, therefore, committed illegality, whereas, the impugned judgment of the Appellate Court is brief and non-speaking. Learned counsel placed reliance on the judgments reported as Muhammad Saleem v. Muhammad Akram (PLD 1971 Supreme Court 516) and Malik Sardar Muhammad Qasim v. Malik Haji Abdul Ghaffar (2012 CLC 316).

5. Mr. Abdul Zahir Kakar, learned counsel for the respondents Nos. 1 to 5 submitted that respondent 1 was the recorded owner of the Land vide mutation 160 dated 18 February 2000 and as, she had not authorized anyone to represent her in the arbitration; consequently, the award was not binding on her. Next submitted that the award had no legal effect for, the same was not made rule of the court nor it was acted upon wholly or partly and for this reason, the concurrent judgments do not suffer from any error of law.

6. Mr. Changaiz Dashti, learned AAG representing the official respondent supported the concurrent judgments.

7. Heard and have gone through the record and the case laws relied upon by the petitioners' learned counsel.

8. Petitioners pleaded that they and the respondents Nos. 3 to 5 had mutually referred their differences to the arbitration vide arbitration agreement dated 28 May, 2002 (Ex.P/4) and after hearing both sides, the arbitrators vide arbitration award dated 30 May, 2002 (Ex.P/5) declared the petitioners as owners of the Land and, they were placed in possession of it. However, respondents Nos. 3 to 5 breached the terms of the award and started interference with their possession on the Land. In prayer clause (C) of the first amended plaint, petitioners sought direction to the official respondent to mutate the Land to their names pursuant to the award. In prayer clause (A), petitioners sought declaration of ownership in relation to the Land on the strength of the award. The principle relief of the petitioners was declaration of ownership and transfer of mutation in their names. Both reliefs were sought by the petitioners on the strength of award. Petitioners had instituted suit for declaration to enforce the award. The Arbitration Act, 1940 ('Act') prescribes a statutory mode to give a legal effect to an award, that is, section 17, the Act. Unless an award is not (sic) made rule of the court, the same would not create rights and liabilities in respect of its subject matter. Petitioners had not applied to make the award as rule of the court; thus, the award could not have been enforced through the mode outside the provisions of the Act. Section 32, the Act, bars a suit instituted for a decision upon the existence, effect or validity of an award nor shall in such suit, any such award be set-aside amended, modified or in any way affected otherwise then as provided by Ss. 15, 16, 17, 30 and 33, the Act which sections relate to modification and or amendment of an award, making the award as rule of the court and setting aside of it. An award cannot be enforced through a civil suit; thus, petitioners' suit was barred by section 32, the Act.

9. Though, the petitioners pleaded that the award was partly acted upon to the extent of handing over possession of the Land to the petitioners, however, they failed to prove that the award was partly acted upon. The PW-2 in his cross-examination admitted it correct that, 'both lands are in the possession of respondent 3.' (Q.5). The PW-5 in his cross-examination admitted it correct that, 'both pieces of lands are waste and both parties have not cultivated the lands nor raised construction thereupon.' The PW-6 in his cross-examination admitted it correct that, 'petitioners have not an orchard nor any construction on the Land.' (Q.12). Thus, petitioners failed to establish that the award was partly acted upon by handing over possession of the Land. As the award was not made rule of the court and it was not partly acted upon as pleaded by the petitioners; thus, petitioners' suit was not maintainable under section 32, the Act. Petitioners' learned counsel placed reliance on Muhammad Saleem's case, however, the said case law is not applicable to the facts of this case for, in the case law, it was held by the Supreme Court that, 'parties would be entitled to sue or defend on the basis of award if it has been accepted and acted upon by the parties by mutual consent.' In this matter, the award was not accepted nor acted upon, partly or wholly by the parties thereto. Thus, suit for claiming ownership of the Land on the strength of the award was not competent under section 32, the Act. Consequently, the impugned concurrent judgments do not suffer from any error of law of section 32, the Act and section 42, the Specific Relief Act, 1877.

10. Apart from what has been discussed above, respondent No. 1 was the recorded owner of the Land vide mutation 160 dated 18 February 2000 (Ex.D/3-A). Yet, she was not party to the arbitration agreement dated 28 May, 2002. She had not authorized anyone on her behalf to represent her in the reference and the arbitration proceedings. She had not authorized the arbitrators to make an award in respect of the Land nor authorized the respondent No. 3 through a legal instrument authorizing him to refer the differences to the arbitration on her behalf and then, to join the arbitration proceedings. Section 2(a), the Act defines an arbitration agreement, that is to say, 'a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not.' Respondent No. 1 was owner and in possession of the Land, whereas, she had not submitted any differences to the arbitration through a written arbitration agreement either in person or through a duly employed attorney. Reference to arbitration by an agent without having a written authorization is not binding against the principle. An Arbitrator derives his power from an arbitration agreement or the terms of reference and he cannot decide differences unless he has been authorized to do so by the concerned person. In this matter, the arbitrators had directed for transfer of mutation of the Land which belonged to the respondent No.

1. Thus, the award was not binding on the respondent No. 1 and she couldn't be obliged to transfer mutation on the strength of an award pursuant to an arbitration agreement which was not signed by her. There is no concept of employed authority that she had orally authorized her husband, the respondent No. 3 to enter into arbitration agreement on her behalf. The arbitration agreement (Ex.P/4) doesn't state that it was signed by the respondent No. 3 an attorney by or on behalf of the respondent No.

1. The PWs had admitted that, 'the Land was in the name of respondent No. 1 on the date when the differences were referred to the arbitration. Hence, the arbitration award was not binding upon the respondent

1. Reliance is placed on the case reported as Tariq Farooq v. Nasruddin (PLD 1989 Quetta 1). Relevant in the case law reads as:- "

6. Considering other limbs of the arguments it may be seen that respondent Nasruddin who is actual owner of 'suit premises' admittedly did not sign the agreement dated 9-8-1982. It is also not disputed, that respondent Jamaluddin had no written authority on behalf of his brother to refer the dispute for arbitration. Section 2(a) of Arbitration. Act, defines, arbitration agreement. It specifies that agreement for' referring the dispute for Arbitration must necessarily be executed in writing by the parties, or through duly authorized agents. Stress on the written agreement appears to be for the reasons that before reference to Arbitration, party should consciously apply mind to the exact nature of dispute desired to be determined through domestic tribunals of their own choice thereby depriving themselves benefit of normal law; accordingly implied authority or oral agreement has not been recognized. Therefore concept of implied authority and other principles of general law, regarding nature of agreement in violation of definition in section 2(a) of Arbitration Act, in my opinion, are not acceptable for making reference to arbitration."

11. For the aforesaid reasons, the concurrent judgments do not suffer from any error of the law, thus, they do not call for any interference by this Court in its limited revisional jurisdiction. Resultantly, this civil revision petition is dismissed, however, with no order as to costs. MQ/70/Bal Revision dismissed.