P L D 1966 Dacca 231 (PLP)

ASIR, J.‑This Rule arises out of a suit filed by the opposite -party on or about 2dd of July 1962, asking for a declaration that an award said to have been filed on 15‑2‑1962, in the third Subordinate Judge's Court, Dacca, was void, illegal, and un enforceable in law. This suit was filed in the 4th Court of the Subordinate Judge at Dacca and was registered as Title Suit No. 56 of 1962. Before that suit another suit being Title Suit No. 8 of 1960 was filed on or about 5‑2‑1960, by way of an application under section 20 of the Arbitration Act for the purpose of having an alleged arbitration agreement between the parties filed in Court for the purpose of getting an award in accordance with law. That suit was filed by the present petitioner. In Title Suit No. 56 of 1962, which was filed at the instance of the opposite‑party, the main contention advanced by the present petitioner was that the suit was not maintainable in view of the fact that the subject‑matter of dispute was in seisin of the third Court of the learned Subor dinate Judge in connection with Title Suit No. 8 of 1960. It was also contended that the 4th Subordinate Judge's Court had no jurisdiction to maintain a suit of this description when all the matters in controversy between the parties had been agitated and canvassed in the earlier Title Suit No. 8 of 1960, pending in the third Court of the learned Subordinate Judge. The learned Subordinate Judge, 4th Court, Dacca, after hearing the parties held that the suit was maintainable and not hit by section 32 of the Arbitration Act. Thereupon this Rule was obtained by the petitioner. Mr. Shamsuzzaman appearing in support of the Rule contends that both the parties having appeared in the earlier Title Suit No. 8 of 1960, and having canvassed all their controversies before the third Subordinate Judge's Court, Dacca, and that Court having heard both the parties and having passed an order directing the defendants in that suit who were now represented by the opposite‑party in the present Rule to file the agreement in Court within 15 days, the second suit asking for a declaration in the manner indicated above on the ground that the plaintiff in Title Suit No. 56 of 1962, was not a party to the agreement in question, cannot be maintained. . Mr. Jani Alam, the learned Assistant Government Pleader, appearing for the opposite‑party contends that the original agreement in question having matured into an award in whatever manner it might be, the agreement itself lost all its force and the award stood independent of the agreement and that as such the opposite‑party was entitled to maintain a suit for declaration that the award in question was void, illegal and not binding on them. It is also contended by Mr. Jani Alam that the opposite party being not a party to the agreement in question after it had matured into an award they were entitled to maintain a suit of this character. . It is not disputed that in Title Suit No. 8 of 1960, the question as to whether the plaintiff of that suit had remedies under Chapter II of the Arbitration Act in view of the allegation that an award had actually been passed by the Superintending Engineer, was raised before that Court when the matter came up for hearing on 23rd of January 1961. It also appears that all the points of controversy that could be raised in connection with the dispute between the parties had been raised before that Court and the learned Subordinate Judge, third Court, Dacca, after careful consideration of all the points submitted before him in a lengthy judgment gave a direction upon the ‑defendants to file the agreement in Court within 15 days so that a body of arbitrators might be appointed in order to proceed with the arbitra tion in accordance with law. Mr. Jani Alam does not dispute that the Province of East Pakistan entered appearance and was represented when the matter was being contested in that earlier suit. The question of existence or otherwise of the agreement providing for arbitration between the parties, was raised before that Court. In view of section 31 of the Arbitration Act' it seems essential that all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or persons claiming under them shall be decided by the Court in which the award under the agreement has been or may be filed and by no other Court. Mr. Jani Alam does not dispute that according to the definition of the Court in section 2 of the Arbitration Act, the learned Subordinate Judge's third Court, Dacca, had jurisdiction. to maintain a suit or application, whatever it is called, raising all questions regarding validity, existence of an award or an arbitration agreement between the parties We are, therefore, inclined to think that the order dated 23‑1‑1961, as passed by the learned Subordinate Judge, third Court, Dacca, was quite competent according to law and that Court was also competent to make an order directing the defendants to file the agreement in Court and that it was binding on the parties according to law. It further appears that in pursuance, of that order, two arbitra tors and an umpire were appointed and in view of the difference of opinion between the arbitrators, the umpire gave an award and it was filed in the third Court of the learned Subordinate Judge in Title Suit No. 8 of 1960, on or about 15‑2‑1962. Objection thereto has also been filed by the present opposite‑party and the hearing of the matter is still pending in that Court. Sometime thereafter, that is, on 2‑7‑1962, Title Suit No. 56 of 1962, has been filed in the 4th Subordinate Judge's Court, Dacca, by the opposite‑party. According to Mr. Jani Alam; the opposite‑party is entitled to maintain an independent suit in the circumstances as stated above. We are, however, unable to follow his line of argument in this connection. In essence and substance the opposite‑party contends that there is no existence of an arbitration agreement as per clause 25 of the written and signed contract dated 18‑9‑1952. His further contention is that the word "existence" in section 33 of the Arbitration Act, means legal existence. He has relied upon two decisions in the cases of Tofazzal Hossain Akon v. Sekeluddin Akon and others (P L R 1954 Dacca 599) and Manick Lal Mernani v. Shiva Jule Bailing Ltd. (52 C W N 389). To us it, however, appears tha it is difficult for the purpose of interpretation of the language of the relevant section to import or insert the word 'legal' or 'factual' before the word "existence". As the language connotes "existence" might mean either way; legal or factual, and this kind of view seems to have been expressed in another decision of the Calcutta High Court in the case of Chaturbhuj Chaturbhuj Uohanlal v. Bhicam Chand Chororia & Sons (53 C W N 410). There is no reason as to why the language as employed in section 31 (2) of the Arbitration Act and section 33 of the said Act should be limited in the manner urged by the learned Assistant Government Pleader. Apart 'from all that, the facts of the cases reported in P L R 1954 Dacca 599 and 52 C W N 389, do not disclose that there 'was already a long and hard contest between the parties over the controversies and issues raised between them in connection with the same subject‑matter as we find in the circumstances of the present case. The jurisdiction of the third Court of the Subordinate Judge in so for he entertained Title Suit No. 8 of 1960 and gave an order on 23‑1‑1961, has never been challenged nor the said order dated 23‑1‑1961, has been challenged in appeal or otherwise. That order has become final and conclusive between the parties and having been passed by a competent Court, is binding on them. There is no reason as to why and how it could be held that a second litigation between the parties on the same subject‑matter, would be maintainable. We are inclined to think that the question of existence as sought to be raised by the learned Assistant Government Pleader ‑ on the plea that an award was made by the Superintending Engineer sometime in 1957 could have been raised before the third Subordinate Judge's Court, Dacca, at the time of hearing of the matter which formed the subject‑matter of the decision as per order dated 23‑1‑1961. Apart from that, we do not think that it is open to the opposite‑party to file an independent suit and to bypass the provisions of section 32 of the Arbitration Act on the plea that the original written agreement between the parties as to the contract dated 18‑9‑1952, became non‑est simply because it was alleged that there was an award although it has been found by the third Court of the learned Subordinate Judge that it was prompted by bias on the part of the Superintending Engineer. In these circumstances, we are inclined to think that not only in view of the previous decision of the third Subordinate Judge's Court, Dacca, in Title Suit No. 8 of 1960 as per order dated 23‑1‑1961, which has become final and conclusive between the parties but also for the reason that the plea of the opposite‑party being not a party to an agreement for arbitration is not at all a genuine plea and not sustainable in law the contention of the learned Assistant Government Pleader cannot be accepted. Apart from that, the facts of the decisions relied upon by the learned Assistant Government Pleader are quite distinguishable. In the result, this Rule is made absolute the judgment and order as passed by the learned Subordinate Judge, 4th Court; Dacca on 6‑11‑1962, are set aside and it is held that the suit is not maintainable. Title Suit No. 56 of 1962 of that Court is accordingly dismissed with costs. The petitioner will get costs of this Rule from the opposite‑party‑hearing fee being assessed at five gold mohurs. SALAHUDDIN AHMED,‑J.‑I agree.. K.B.A Rule made absolute.