P L D 1965 Azad J & K 9 (PLP)

KH. MUHAMMAD SHARIF, J.‑This is an appeal against the order of a learned Single Judge of this Court dated 20‑1‑1964 whereby the appellant was directed to file the agreement in the Court and instead of the Chief Conservator of Forests, the arbitrator nominated in the agreement, Col. Adalat Khan was appointed as arbitrator by the Court. Kh. Muhammad Shafi, Advocate on behalf of the respondent raised two preliminary objections (1) that the appeal is time barred; (2) that the order of the learned Single Judge in so far as it revokes the authority of the arbitrator nominated in the agreement and appoints Col. Adalat Khan as arbitrator is not appealable. As regards the first preliminary objection the learned counsel's contention was that the appeal was to be filed within 20 days from the date of the order under Article 151 of the Limitation Act and that the appeal which was presented to Court 94 8‑2‑1964 should not be treated to be within time though `20 days' time had not expired on 8‑2‑1964 since it had not been presented before any officer competent to receive the same. The appeal was presented on the 19th day to the Court and it was received by the Reader of the Court on behalf of the Registrar. The learned counsel argued that under Order XLI, rule 1 every appeal has to be preferred in the form of a memorandum signed by the appellant or his Pleader and presented to the Court or to such officer as it appoints in this behalf and that the Reader of the Court was not an officer appointed by the Court to receive the appeals though he concedes that the Registrar could validly receive the appeal. The learned Government Advocate replied that at best it could be said that there was an irregularity committed in the presentation of the appeal and that it is not fatal. He cited Mst. Karam Nishan v. Mehrban Ali Shah (P L D 1959 Lah. 946). Order XLI, rule 1, C. P. C., no doubt, provides that every appeal shall be presented to the Court or to such Officer as it appoints in this behalf but on enquiry from the office we find that there is no order of the Court authorising any Officer to receive appeals or petitions not even the Registrar though the practice of the Court is that appeals and petitions are received by the Registrar and in his absence by the Superintendent or Reader or even the Ahlmad Faujdari. The Registarar of this Court holds dual charge of the Office of District and Sessions Judge, Muzaffarabad and of the Registrar of this Court. He is not present in the High Court all the time and when he is away, some other official of the Court receives the appeals or petitions that are presented to the Court. In the absence of any order by tile Court authorising any officer to receive appeals or petitions the practice of the Court should not be allowed to prejudice any litigant who comes to the Court for presenting any appeal or petition. Kaikaus, J. laid down in P L D 1959 Lah. 946 that non compliance with the provisions relating to presentation of appeals amounts only to an irregularity and does not affect the Jurisdiction of the Court to hear proceedings. We agree with the learned Judge and hold that even if such presentation could be said to be an irregularity it would not affect the jurisdiction of the Court to hear the appeal. Moreover this particular appeal was pre sented on Saturday which was the 19th day. The 20th day which was the last day of limitation happened to be a Sunday which was a closed holiday. Therefore, it shall be said to be within time when it was presented before the Judges constituting Division Bench on 10‑2‑1964 for orders. The preliminary objection No. 1 is overruled. As regards the second preliminary objection the learned counsel for the respondent argued that section 39 of the Arbitration Act which is reproduced below does not cover the order revoking the authority of the nominated arbitrator and appointing another arbitrator in his place:‑ "(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised bylaw to hear appeals from original decrees of the Court passing the order:‑ An order‑ (i) superseding an arbitration; (ii) on an award stated in the form of a special case; (iii) modifying or correcting an award; (iv) filing or refusing to file an arbitration agreement; (v) staying or refusing to stay legal proceedings where there is an arbitration agreement; (vi) setting aside or refusing to set aside an award: Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court." The learned counsel's argument was that the first part of the order of the learned Single Judge calling upon the opposite party i.e. the appellant to file the agreement is, no doubt, appealable under clause (4) of subsection (1) of section 39 but the second part of the order revoking the authority of the nominated arbitrator and appointing another arbitrator in his place does not fall under any of the clause of this section which clearly provides that an appeal shall lie in cases falling under any of the clauses of subsection (1) and in no other case. The learned Government Advocate replied that this was an order made by a learned Single Judge of the High Court acting on the original side of its civil jurisdiction and that such order was appealable before a Division Bench under section 13 subsection (3) of the Azad J. & K. Courts and Laws Code, 1949. The learned Govern ment Advocate cited Muhammad Ishaque v. State (P L D 1963 Azad J & K 1) wherein it was held that the order of a learned Single Judge of this Court refusing to revoke the authority of the arbitrator nominated in the arbitration agreement is appealable before a D. B. under section 13 (3) of the Azad J. & K. Courts and Laws Code, 1949. The learned counsel for the respondent argued that section 13(3) provides that an appeal shall lie to the High Court from the judgment or order of one Judge in an original civil suit but that an application made under section 20 of the Arbitration Act is not a suit and therefore an order made in such application cannot be said to be appealable before a D. B. Section 20, subsection (ii) of the Arbitration Act provides that the application shall be in writing and shall be numbered and registered as a suit between one or more of the parties interested or claiming to be interested, as plaintiff or plaintiffs and the remainder as defendant or defendants, if the application has been presented by all the parties, or if otherwise, between the applicant as plaintiff and other parties as defendants. The learned counsel's contention is that in spite of the provision of subsection (ii) of section 20 that such application shall be numbered and registered as a suit and the parties called as plaintiffs and defendants, such application does not become a suit and therefore an order made in such application cannot be said to be an order made in an original civil suit; hence not appealable. He cited 59 I C 755; 6111 C 390; 117 I C 94 and 137 I C 266 in support of the proposition that an application made under section 20 of the Arbitration Act cannot be said to be a suit in spite of the fact that it has to be numbered and registered as a suit. The learned Government Advocate cited A I R 1927 Bom. 259 and A I R 1928 Mad. 969 (2) in support of the proposition that an application under section 20 of the Arbitration Act is a suit. 59 I C 755 which is a D. B. case of the Bombay High Court lays down that although an application under paragraph 20 of Schedule II to the C. P. C. to file an award is numbered and registered as a suit, proceedings under paragraphs 20 and 21 of Schedule II are not proceedings in a suit and that where an application to file an award is rejected, a suit to in force the award is not barred by rule of res judicata. 611 C 390 which is a D. B. case from the Patna High Court lays down that when an application is presented under para graph 17 (1) of Schedule II to the Civil Procedure Code it has to be numbered and registered as a suit but that does not mean that the application is in fact a suit within the meaning of the term as used in the Code. Their lordships of the Patna High Court reasoned that under Order IV, rule 1, sub‑rule (1) of the Code every suit has to be instituted by presenting a plaint to the Court and that proceedings under paragraph 17 of the II Schedule of Code are commenced, not by presenting a plaint but by presenting an application to the Court having jurisdiction in the matter to which the agreement relates 117 I C 94 which is a case from the Lahore High Court lays down that an application under paragraph 20, Schedule II, C. P. C. is not a plaint and the hearing of such an application is not a suit though under clause 2 of the paragraph 17 it has to be numbered and registered as a suit. Therefore, such an application cannot be under section 10, C. P. C. during the pendency of a previously instituted suit in any Court. 137 I C 266 which is a Division Bench case of the Lahore High Court holds that an application under paragraph 17 of the II Schedule to the C. P. C. asking the Court to file an agreement to refer a dispute to the arbitration is not a suit within the meaning of section 80, C. P. C. Their Lordships' reasoning also was that unless there is any special provision to the contrary, a proceeding that does not commence with a plaint cannot be held to be a suit. A I R 1927 Bom. 259 which is a D. B. case lays down that an application under section 20 of Schedule II, to C. P. C. to enforce an award when numbered and registered as a suit becomes a suit for the purposes of Order XXXVIII and the Court can direct attachment before judgment. A I R 1928 Mad. 969 (2) which is also a D. B. case lays down that for the purposes of Order IX, rule 13 proceedings under paragraph 20 Schedule II, C. P. C. are a suit. We have no dispute with the principle of law enunciated in 1371 C 266 because the non‑compliance of section 80 is a bar to the institution of a suit against the Government or against a public Officer. The proceeding in such a case is a suit and should be a suit on the very day of its institution but an appli cation made under section 20 of the Arbitration Act is not a suit on the day of its institution though it later becomes a suit under subsection (2) of section 20 which provides that it shall be numbered and registered as a suit. But we are respectful disagreement with the other cases cited by the learned counsel for the respondent. Shadilal, C. J. and Brodway; J. stated in 137 I C 266 that it will be stated generally that unless there is any special provision to the contrary a proceeding that does not commence with a plaint cannot be held to be a suit. We think that subsection (2) of section 20 of the Arbitration Act is a Special provision to the contrary to the proposition that a proceeding which does not commence with a plaint cannot be held to be a suit. Similarly Mr. Justice Dass and Mr. Justice Ross argued in 611 C 390 that since proceedings under paragraph 17 of the II Schedule of the Code are commenced not by presenting a plaint but by presenting an application yet subsection (2) provides that such application shall be numbered and registered as a suit. Therefore the application becomes a plaint and the proceedings shall be said to be proceeding in a suit. "Suit" has not been defined in the Code but "decree" has been defined to mean formal expression of an adjudication, which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. The proceedings initiated by presenting an application under section 20 if proceeded with by ordering that the agreement deed shall be filed and by making a reference to the arbitrator, may result in a decree of the Court. The definition of "decree" as given in the Code pre‑supposes the institution of a suit because a decree can be passed only in a suit. Therefore, the proceedings which are initiated by presenting an application under subsection (1) of section 20 become a suit when under subsection (2) such appli cation is registered and numbered as a suit. We, therefore hold) that an application .made under section 20 of the Arbitration Act is a suit within the meaning of section 13(iii) of the Azad J & K State Courts and. Laws Code, 1949 therefore, an order made by a learned Single Judge of this Court, subject to the restrictions mentioned in P L D 1963 Azad J & K 1, is appealable, and we hold that the order of the learned Single Judge in so far as it relates to the revocation of the authority of the arbitrator nominated in the agreement deed and the appointment of another arbitrator in his place is appealable under section 13(iii) Azad J & K Courts and Laws Code, 1949. The second preliminary objection is also overruled. It was argued by the learned counsel for the appellant that the learned Single Judge's finding that the application was within time was wrong, inasmuch as the learned Single Judge had not given the terminus a quo from which the period of limitation was to commence. The learned counsels for the parties agree that Article 181 of the Limi tation Act governs the present case. Article 181 provides for applications for which no period of limitation is provided elsewhere and the period of limitation provided is 3 years commencing from the date when the right to ‑apply accrues. The learned Single Judge has remarked on page 2 of his order that regarding the fact whether the application is barred by time he has been referred to a letter No. 1860/C.VII.46 dated 12‑10‑1961 addressed by the A. C. F. to Kh. Faqir Muhammad representative of Shaheen Timber Trading Company and again on page 3 of the order the learned Single Judge has remarked that keeping in view the letter to which he was referred to by the applicant "I am of the view that the deficiency in timber was brought to the notice of the Forest Department by the applicant well in time before the expiry of the lease and this being the case the application cannot be held to be time‑barred." The learned counsel for the appellant has argued that the learned Single Judge has not given any definite date or time when the deficiency in the timber was brought to the notice of the Forest Department. The learned Government Advocate has repeatedly raised the plea of limitation in his written statement filed before the learned Single Judge. He had also taken the plea that the agreement had expired without any objection on behalf of the lessee, the respondent, therefore, there could be no valid reference to an arbitrator. The learned counsel has cited Muhammad Abdul Latif Faruqui v. Nisar Ahmad and another (P L D 1959 Kar. 465) which lays down that the fact that the claim is time‑barred is a "sufficient cause" within the meaning of subsection (4) of section 20 of the Arbitration C Act which is wide in meaning and import and includes grounds of justice, equity and good conscience. The facts of this case were that the plaintiff made an application (now suit) on 3‑2‑1955 and stated that the cause of action arose on 1‑1‑1951 when the share of profits for October, 1951, was not paid to him and because his subsequent demands went unheeded. The right to apply for accrued on 1‑1‑1951. The period of 3 years' limitation had expired on 1‑11‑1954, therefore, the application (suit) which was presented on 3‑2‑1955 was obviously time‑barred and his lordship deciding P L D 1959 Kar. 465 refused to make an order of reference to arbitration since the claim had already become time‑barred. Agreeing with the learned Government Advocate we are constrained to hold that the point of limitation has not been correctly decided. The learned Single Judge has referred to a letter which is not on the file. We have gone through the list of documents filed by the plaintiff‑respondent and the letter No. 1860/C.VII.46 dated 12‑10‑2961 is not included in this list. The learned Single Judge has not given the date from which the period of 3 years' limitation is to commence. Therefore, accepting the appeal we set aside the order of the learned Single Judge dated 20‑1‑1964 and remand the case back to him. He shall please frame issues on the point of limitation as also on the competence of the reference and decide it afresh. It was argued by the learned counsel for the respondent that issues need not be framed but section 41 of the Arbitration Act provides that subject to the provisions of this Act and of the rules made therein, the provisions of the Code of Civil Procedure shall apply to proceedings before the Court and to all appeals under this Act. This may prove to be an issue of fact and parties might like to lead evidence to determine the terminus a quo. The application made to the Court under section 20 takes the place of a plaint and the Court can call upon the parties to furnish further particulars either by means of amending the pleadings or by examining them orally. The part of the order revoking the authority of the arbitrator nominated in the arbitration agreement and appointing a new arbitrator in his place is also set‑aside. We refrain from expressing any opinion on the merits of this part of the order because we have not heard the parties on this point and further because the remand has become necessary. If there is an appeal again before us we will go into this point also. K.B. A. Appeal accepted : Case remanded.