2017 PLP 384 (YLRN)

KHALID MAHMOOD MALIK, J.

This appeal under section 96, C.P.C. has been filed by the plaintiff-appellant who sued the respondent-defendant before the learned Civil Judge, Ist Class, Kabeerwala, for getting possession of the suit land measuring 48-kanals situated at Mouza Sandrana, Tehsil Kabeerwala, District Khanewal, through pre-emption. The defendant contested the suit by filing a written statement. On pleadings the learned Trial Court vide order dated 8.7.2009 framed issues and called upon the parties to adduce evidence in support of their respective claims. During the course of recording evidence, parties to the suit agreed to the appointment of Saqlain Haider Gardazi son of Mumtaz Hussain, resident of Mouza Sarfrazwala, Tehsil Kabeerwala, as Referee and in this context they made a joint statement dated 11.4.2011 before the learned Trial Court which reads as under: In view of afore cited statement of the parties, learned Trial Court passed the following order dated 11.4.2011: On 19.4.2011 the said Referee, appeared before the learned Trial Court and got recorded his following statement: In the light of statement of the Referee the learned Trial Court through following order dated 19.4.2011 decreed the suit: "With consent of the parties on 11.04.2011 Saqlain Haider Gardazi was appointed referee. The referee appeared and recorded his statement today. In the light of the statement of the referee suit is decreed to the extent of 24-Kanals, subject to payment of Rs.3800,000/- within 60-days by the plaintiff to the defendant. Suit to the extent of 24-kanals is dismissed. Parties are left to bear their own costs. Plaintiff is entitled to withdraw zare-e-soim deposited in the court. Decree sheet be prepared."

3. The plaintiff-appellant through this appeal has called in question the order and decree dated 19.4.2011 passed by the learned Trial Court raising two questions: firstly, as to whether the statement made by Saqlain Haider Gardazi before the learned Trial Court was the statement within the contemplation of Article 33 of the Qanun-e-Shahadat, 1984 or an award within the meaning of section 14 of the Arbitration Act, 1940; and, secondly, as to whether the learned Trial Court on the basis of statement of Saqlain Haider Gardazi could pass a decree.

3. The appellant's counsel contended that the learned Trial Court misconstrued the reference of the dispute between the parties to Saqlain Haider Gardazi as one under Article 33 of the Qanun-e-Shahadat, 1984. He urged that from the joint statement of the parties it was clear that it was not a case of appointment of a Referee within the meaning of Article 33 of the Qanun-e-Shahadat, 1984 but one of reference to arbitration; and, that the decision furnished by the Arbitrator was an award but the decree based thereon was granted without giving opportunity to the parties to submit objections thereto. On the other hand, learned counsel for the respondent-defendant submitted that it was a reference in terms of Article 33 of the Qanun-e-Shahadat, 1984 and, thus, the statement made by the Referee or the order/decree rendered was binding upon the parties; and, that the parties having agreed to refer the matter to Referee could not have even filed an appeal.

4. The arguments canvassed by the appellant's counsel have substance. Article 33 of the Qanun-e-Shahadat, 1984 appears to contemplate the existence of three parties, first, the party who refers, secondly, the party who is referred, and thirdly, the party to whom reference is made, the principle being that when one party refers another second party to a third party for information, the first party will be presumed to undertake as his own the information furnished by the third party. The information referred to need not be a decision involving judicial determination of dispute or controversy. In this regard it would be apposite to make reference to the case of Chhabba Lal v. Kallu Lal and others (AIR 1946 PC 72). In this case there was a dispute between the parties with regard to the partition of the joint family property. The dispute was taken to the Court. During proceedings the parties appointed their Guru as a Referee for decision of all the facts and also for the decision in respect of the costs of the suit. The question for consideration before the Judicial Committee of the Privy Council was whether the decision given by the Guru was covered by the provision of Section 20 of the Evidence Act (which corresponds to Article 33 of the Qanun-e-Shahadat, 1984). The answer was in negative and it was held "that a reference to an outside party to decide matters in dispute in a suit and the question of costs is not a reference to that party for information in reference to matter in dispute, and if the reference is to be regarded as made only under section 20, it was a bad reference."

5. The Hon'ble Supreme Court of Pakistan in the case of Nazir Ahmad and others v. Muhammad Qasim and others (2004 SCMR 1292) has held that there are four ingredients of Article 33 of the Qanun-e-Shahadat, 1984: First that some party must have referred the matter to a third person. Second, that the reference must be for information and third, that the referee must make a statement qua such information and lastly that such statement shall be deemed to be an admission by the party who expressly referred to such third person for information. Here the status of such third person is more of a witness than of either an arbitrator or a local commission. Whatever is stated by the third party is nothing but an information. Whenever a case is agreed upon to be decided on the statement of a referee, the matter might fall under Article 33 of the Qanun-e-Shahadat, 1984 but a reference to a third person to decide a matter in dispute is a reference to arbitration.

6. In the case on hands the parties never agreed that Saqlain Haider Gardazi should make a statement simpliciter furnishing information but the entire decision of the dispute between the parties was entrusted to him. It was, therefore, more close to arbitration in suits under Chapter IV of the Arbitration Act, 1940 rather than to an appointment under Article 33 of the Qanun-e-Shahadat, 1984. Resultantly, we are of the opinion that, by mere use of word referee, the matter does not fall under Article 33 of the Qanun-e-Shahadat, 1984; and, that Saqlain Haider Gardazi was never referred to by the parties to make some statement but to render a complete decision regarding entire matter in dispute. Thus, no decree could be passed on the decision/statement of Saqlain Haider Gardazi, which for all intents and purposes was an award, unless the parties were given an opportunity to furnish their objections within period and in the manner provided by the Arbitration Act, 1940. In this regard reliance may be placed on the case of Ghulam Farid Khan v. Muhammad Hanif Khan and others (1990 SCMR 763).

7. Upshot of the above discussion is that this appeal is accepted, the order and decree dated 19.4.2011 are set aside and the case is remanded to the learned Trial Court for inviting objections from the parties against the award of the Arbitrator. Parties are directed to appear before the learned Trial Court on 30.3.2015. No order as to costs. SL/A-55/L Appeal allowed.