1988 PLP 38 (MLD)

(d) Arbitration Act (X of 1940)‑‑ ‑‑‑S. 33‑‑Civil Procedure Code (V of 1908), S. 115‑‑Revisions jurisdiction, exercise of‑‑Trial Court failing to apply mind to fact, and making direction in violation of intent of statute, held, would justify interference by High Court in revisional jurisdiction. Syed Iqbal Ahmed for Applicant. Muhammad Naeem for Respondents. Date of hearing: 8th April, 1985. This Revision Application is directed against the orders passed by 1st Senior Civil Judge, Karachi on 19‑12‑1974 and the Additional District Judge, Karachi on 20‑10‑1978, respectively. The facts in brief are that there was dispute between the parties and the matter was referred to Arbitrators. As they did not come to a positive finding, the matter was placed before the Secretary, High Court Bar Association, who acted as Umpire and gave the award on 11‑3‑1974 and filed it in the Court of Senior Civil Judge for making it a rule of Court. Thereupon the learned Civil Judge issued notice to the appellant directing that the Court shall proceed to pass judgment according to the Award unless an application is duly made under the provisions of than Arbitration Act. The appellant filed objections before the learned Senior Civil Judge. The learned Senior Civil Judge while refusing to set aside the award passed the judgment' on 19‑12‑1974. The award was made rule of the Court. Appeal against the decision of the Senior Civil Judge was dismissed by the learned Additional District Judge. He concurred with Senior Civil Judge that no application challenging the validity of the award shall be entertained by the Court unless appellant has deposited in Court the amount which tip is required to pay under the award or furnished surety to the satisfaction of the Court for the payment of such sum.

2. The applicant being aggrieved has challenged the orders of the Courts below in this revision petition. To resolve the controversy it is necessary to refer to the proviso added to section 33 of the Arbitration Act which reads as under: "Provided that no application challenging the existence or validity of an award or for having its effect determined shall be entertained by the Court unless then applicant has deposited in the Court the amount which he is required to pay under the award or has furnished security to the satisfaction of the Court for the payment of such sum or the fulfilment of any other obligation by him under the award." This proviso was added in 1972 but was deleted in 1977. The learned counsel for the petitioner has stated that after the filing of the objections it was incumbent upon the Court to direct the petitioner to deposit the amount or furnish security, but this is not done and, therefore, the objections should not have been rejected by the trial Court. The learned counsel for the respondent on the other hand has submitted that it was for the petitioner to deposit the amount or furnish security and the direction of the Court was not required. I have not been pursuaded myself to agree with the contention made by the, learned counsel for the respondent. The penal provision of a statute must be construed strictly and the proviso added to the main section is not to be considered in isolation. It is to be considered along‑with the principal provision. It was the duty of the Court to call upon the objector to furnish the security or deposit the amount. P L D 1973 Note 158 at p. 238 was quoted before the learned Additional District Judge but the appellate Court tried to distinguish the authority. In my view the principle enunciated in the authority applies to the facts of the present case. In the cited case the award was filed in the Court for making the same rule of the Court. The appellant filed objections with regard to the same. An application under section 33 of the Arbitration Act was also filed by the appellant for permission to furnish security for the payment of the amounts covered by the award. The contention was raised in this case that the application cannot be filed. This contention was repelled and it was observed that word 'entertain' according to the Concise Oxford Dictionary means 'maintain' (Correspondence course) and the word 'maintain' according to the same dictionary means 'carry on, keep up'. It means that if an application challenging the validity of an award has been filed within time the same will not be maintainable or liable to be carried on or kept up by the Court if the applicant does not deposit the amount covered by the award or furnish the security for the payment of the same to the satisfaction of the Court, as the case may be, It will be for the Court to decide after the application has been filed as to whether the applicant in the given circumstances is to be called upon to deposit cash amount or furnish the security to its satisfaction. Necessary order in this regard can be passed by the Court only after scrutinizing the ground of the application made in this behalf. It is only after the necessary order passed in this respect by the Court has not been complied with that the application will not be maintainable or the same will not be kept pending. It is not conceivable that such an application will not be allowed to be filed unless the applicant has deposited the cash amount or furnish security. There is another authority quoted by the learned counsel for the applicant, P L D 1976 Lah. 1273. In this case after the award was filed in Court the petitioner filed an application as required by section 30 read with section 17 of the Arbitration Act for setting aside the award. The trial Court by the order impugned directed the petitioner to furnish security in the form of bank guarantee under the proviso. In this case, it has been held after considering various authorities that a proviso cannot travel beyond the scope of the main enactment. Unless there is anything to indicate to the contrary, a proviso is to be assumed to apply to what has been dealt with in the main provision preceding it. The expression "to challenge the existence or validity of the award" should, therefore, be construed to convey the same sense in which these words have been used in the purview of main section as excluding the invalidities occurring during the course of the arbitration proceedings. It was further observed that before passing an order in accordance with proviso to section 33 the Court should carefully look to the purport of the application in the light of the principles noted above and issue a direction only if the application or any, of it is found to be covered by the language of section

33. The necessary conclusion would be that the Court has to apply its mind to the facts of the case and then make a direction. In P L J 1975 Kar. 96 it has been observed that the plaintiff must deposit cash or furnish security to the satisfaction of the Court where the validity of the award is challenged. The Court allowed the plaintiffs four weeks time for this purpose. I, therefore, accept the revision petition and set aside the orders of the two Courts below and remand the case to the Senior Civil Judge with the direction to pass necessary order on the application moved under section 33 of the Arbitration Act. A . A .????????????????????????????????????????????????????????????????????????????????????? Revision allowed.