1998 PLP 485 (CLC)

"(a) to the High Court if the value of the original suit in which the decree or order was made exceeds and (b) to the District Judge in any other case. " The precedent case‑law referred to by the learned counsel is distinguishable. For instance he relied on a Single Bench judgment of this Court reported in M.A. Jalil v. Salahuddin Khan (1983 CLC 1685). In the said case the petitioner initially filed the appeal before the District Judge which was returned whereafter revision was filed before this Court and it was prayed that the appeal was filed bona fide; that the question of pecuniary jurisdiction was not raised before the District Judge; that the petitioner was misled by the impugned award by the Arbitrator in filing appeal before the District Judge and that there was no case decided on the question of forum of appeal. The prayer was allowed and the delay was condoned by the High Court and it was observed as under:‑‑‑ "I am inclined to agree with the submissions of the learned counsel for the petitioner. Firstly the respondent cannot now be allowed to raise objection as to the pecuniary jurisdiction and the learned Additional District Judge for the first time in this Court and secondly the question of jurisdiction and forum of appeal was not free from doubt. Both the learned counsel were not able to cite any Judgment in support of their respective pleas." Reference was also made to Muhammad Azeem v. Muhammad Nawaz (PLD 1961 Lahore 137) wherein in a rent matter the appeal was filed before the District Judge and the same was returned as incompetent and after the expiry of period of limitation the appeal was filed before the High Court and the High Court considering various provisions of law relating to appeal against the orders of Rent Controllers appointed under the West Pakistan, .Rent Restriction Ordinance, 1959 and some ambiguity about the forum of appeal arrived at the conclusion that the mistake by the learned counsel for the appellant was not so gross as to disentitle him from getting the benefit of section 5 of the Limitation Act. In Government of N.‑W.F.P. v. Azizur Rehman (1991 MLD 422) the appellant who had incompetent appeal before the District Judge which was returned referred to PLD 1958 Lahore 44 to contend that the appeal before the District Judge was competent and no contrary judgment was cited by the other side and it was in these circumstances that at page 424 this Court held as under:‑‑‑ "The question of competency of the appeal in the Court of District Judge or this Court was difficult and a complicated one, therefore, the appellants cannot be balmed for filing the appeal in that Court nor it can be said that they were negligent in pursuing their remedy in the said Court. In the circumstances, the application under section 5/14 of the Limitation Act is accepted, the period spent in prosecuting the appeal in the Court of the District is condoned and the appeal is held as within time. " In Taj Muhammad Khan v. N.‑W.F.P. Forest (PLD 1984 Peshawar 64) incompetent appeal filed before the District Judge was held to be a bona fide mistake as the contention was that the order appealed against was passed on a miscellaneous application for temporary injunction and that on the main suit and even otherwise on merit the case was weak as the arbitration clause in the course had itself become infructuous and the learned trial Court had no jurisdiction to pass the order in question. On merits learned counsel referred to 1985 MLD 115 to contend that in the facts and circumstances of this case there was no dispute which warranted recourse to arbitration clause and the order passed by the learned trial Court is not tenable in law. The argument of the learned counsel for the appellant that under a bona fide mistake he treated the application under section 20 of the Arbitration Act as a miscellaneous application, and therefore, he filed the appeal against the order passed therein before the District Judge is not tenable in law for more than one reason. Section 2(c) of the Arbitration Act reads as under:‑‑‑ "'Court' means a Civil Court having jurisdiction to decide the question forming the subject‑matter of the reference if the same had been the subject‑matter of the suit, but does not except for the purpose of arbitration' proceedings under section 21, include a Small Cause Court;" In Province of Punjab v. District Judge, Lahore (PLD 1984 Lahore 515) a similar argument which has been canvassed before this Court was repelled and it was observed at page 518 as under:‑‑‑ "The appellate jurisdiction is regulated by section 18 of the West Pakistan Civil Courts Ordinance, 1962. It has already been stated, that under this section, if the 'value' of the original suit is not more than Rs.50,000, the appeal from the judgment and decree passed therein, lies to the District Court and in other cases to High Court. As pointed out by the learned counsel for the respondents, the term 'value' has been defined in section 2(h) of the Ordinance, which reads as follows:‑‑‑ 'Value' used with reference to suit means the amount or value ‑of the subject‑matter of the suit. Under section 2(c) of the Arbitration Act, a 'reference' is to be considered as identical to a suit, and the amount of value of the subject matter of the 'reference' furnishes the basis for fixation of the forum, for hearing of the application. Further, there being no other provision for determining the jurisdictional value, for the purposes of the appeal, under section 18, such value, shall enure, for ascertainment of the forum of the appeal as well; on the footing whereof, the forum, competent to hear the revision, can be decided. The view, that the value of the subject‑matter of the application determines the forum of appeal, also finds support from the precedent cited by the learned counsel for the petitioners." At page 521 of the same judgment it was further reiterated as under:‑‑ "Likewise, the argument that the application in question, being a miscellaneous application does not require jurisdictional value, is also not tenable. As would be evident, from the foregoing discussion, section 2(c) read with rule 4, enjoins that the value of the subject‑matter of the application, for the purposes of pecuniary jurisdiction of the Court, must be mentioned therein. " The appeal filed by the appellants before the learned District Judge was incompetent and before a party is allowed condonation it has to be seen as to whether a sufficient cause within the meaning of section 5 read with section 14 A of Limitation Act exists to warrant condonation. For bringing the case within the ambit of section 14, the party has to demonstrate that he prosecuted the appeal before a wrong forum in a good faith. The term "good faith" appears in section 2 of the Limitation Act and it reads as under:‑‑‑ "2(7). good faith' nothing shall be deemed to be done in good faith which is not done with due care and attention;" I have gone through the application filed by the respondent‑plaintiff under section 20 of the Arbitration Act which is with the file of the learned trial Court. Para. 12 refers to the value of the suit for the purposes of jurisdiction and court‑fee and it reads as under:‑‑‑ "That for the purpose of valuation and jurisdiction the value of this application is fixed at Rs.2 crore and the court‑fee for the requisite amount as required under the law has been affixed. " The answer to this para. is rather evasive and it reads as under:‑‑‑ "This para. is not admitted as correct. The petitioner has not affixed proper court‑fee as prescribed under the law. " The precedent case‑law leaves no room for ambiguity and despite the jurisdictional value having been specifically mentioned in para. 12 of application, the appellants chose a wrong forum for appeal. On 18‑1‑1997 preliminary arguments were heard before the learned Additional District Judge and the respondents‑plaintiffs took the preliminary objection of incompetency of appeal but the appellants persisted in pursuing the said appeal, case was B adjourned to 18‑2‑1997, 3‑3‑1997 and finally on 18‑3‑1997 the Court had to return the appeal. These circumstances do not indicate that the appellants defendants acted with due care and attention to bring their case within the meaning of "good faith" as defined above. This was to say the least a gross negligence on the part of the party and the counsel and it cannot be condoned. In Abdul Ghani v. Ghulam Sarwar (PLD 1977 SC 102), at page 107, it was held as under:‑‑‑ It is true that this section does not define sufficient cause but the meaning of this expression is too well known to need recapitulation, and we would only refer here to the observations of Kaikaus, J. on this question in Ataullah v. Custodian Evacuee Property PLD 1961 SC 236 'under section 5 .....there has to be a finding of sufficient cause. In pre‑Partition India sufficient cause had been defined as circumstances beyond the control of the party and I do not know of any case wherein this definition of sufficient cause had been rejected'. We re‑affirm these observations and we explain here that the burden is on the appellant to prove that his delay in filing his appeal was on account of circumstances beyond his control, because as observed by Sir George Rankin in Kanwar Rejendra Bahadur Singh v. Rai Rajeshwar Bali and others AIR 1937 PC 276...in applying section 5 (of the Limitation Act)

the analogy of section 14 (which applies only to suits) is an agreement of considerable weight'. Section 14 permits the exclusion of time only for proceedings 'prosecuted in good faith therefore, in order to make out sufficient cause under section 5 an appellant must prove that he had acted in good faith in presenting his appeal in the wrong Court. Good faith has been defined in clause (7) of section 2 of the Limitation Act as: 'good faith' nothing shall be deemed to be done in good faith which is not done with due care and attention'. Now if an appellant proves that he filed his appeal in the wrong Court despite due care and attention it means that the presentation of the appeal in the wrong Court was on account of circumstances beyond his control. No doubt, what such circumstances are must depend on the facts and circumstances of each case, and in Kanwar Rejendra Bahadur Singh's case, Sir George Rankin set aside the finding of the Chief Court that the appellant's Advocate had been very negligent in filing the appeal in the wrong Court, because the facts relevant to the question of the Court in which the appeal was to be filed were very complicated. Similarly, an appellant can bring his case under section 5 if he can show that there is some ambiguity in the law governing the forum in which the appeal is to be filed. " In a Division Bench judgment of this Court reported in Abdul Ghani v. Mst. Mussarat Rehana (1985 CLC 2529) wherein at page 2531 it was held as follows:‑‑‑ "We are of the view, that the error in filing the appeal in the District Court is so patent that it could have been avoided by exercising due care. The wrong advice of a counsel does not furnish a foundation for enlargement of time." This view was reiterated in Government of Pakistan v. Rafi Associates Limited (1985 CLC 2234).

12. For what has been discussed above I am of the view that circumstances do not warrant an inference that the appellants acted in "good faith" and no sufficient reason has been shown to justify condonation of delay in filing appeal before this Court.

13. Coming to the merits of the case I find that a bare reading of the application and the written reply filed by the appellants‑respondents would show that the respondent‑plaintiff had asserted a claim which was repudiated by the appellants‑defendants and this would constitute a dispute to warrant recourse to section 20 of the Arbitration Act. A reference to paras. (ix) and (x) of the written reply would show that the claim of the respondent‑plaintiff was being repudiated. These paragraphs read as under:‑‑‑ "(ix) The petitioner's plea is not correct. He failed to submit that claim with documentary evidence of the rise in prices as required vide clause 70 of the Contract. He had only submitted claim for the rise in cost of the cement during the progress of the work which, after scrutiny, was paid to him. Escalation claim submitted by the petitioner after completion of the work is under consideration. Verification of documentary evidence provided by the petitioner is being got done from the Authorities specified in the contract. Amount of the claim will be calculated on the basis of these verifications and the net payment, if any, due to the petitioner after taking into account the whole contract will be paid to him subject to the issuance of the certificate of maintenance by .the engineer as specified in clause 62(1) of General Conditions of the Contract. Petitioner has also to sign a certificate that he has no further claim. (x) Petitioner's claim of Rs.5,83,402 includes an amount of Rs.4,21,566 for earth said to have been disposed of outside the boundary of GIK Institute which was neither covered in the contract nor ordered by the engineer. Rs.1,25,000 on account of construction of Pump House was not claimed through a proper bill which the respondents agree to pay, if established by the petitioner, on finalization of petitioner's account Rs.36,836 are being claimed for the work not physically performed, therefore, cannot be admitted." The provision of arbitration clause in the agreement is not denied by the appellants. On the direction of the Court a copy of the said agreement was placed on record. Clause 67 relates to settlement of disputes which reads as under:‑‑‑ "67(1). In the event of any disagreement arising out of the contract the matter shall first be referred to the employer for decision who shall after making such enquiries as he may deem fit give his decision in writing not later than three months after the reference is made to him. The Contractor shall forthwith give effect to the decision of the employer and shall proceed with due diligence whether Arbitration is intended or not. If the contractor be dissatisfied with the decision of the employer or if his decision is not forthcoming within the stipulated period and desires Arbitration under the Arbitration clause as hereinafter provided he shall give a notice in writing of such intention within a period of 28 days of the receipt of the employer's decision, or in case no decision is given, at the end of period within which the employer was to give his decision. The said notice shall contain the cause of action material facts of the case and relief sought, failing which the decision of the employer shall become final, conclusive and binding and the contractor shall be deemed to have forefeited and departed from the claim in excess of that allowed by the employer. No subsequent inflation increase in the amount of claim once‑ preferred in the said notice shall be allowed nor shall any other claim in respect of the same work be entertained from the contractor at any later stage. A reference for arbitration shall be made by the contractor in writing not later than three months after the completion of the work. Failure to make such a reference within this period shall be deemed that the contractor has waived all claims in respect of any dispute. (2) Disputes which may be referred for arbitration shall be limited to:‑‑‑ (a) any question, difference or objection whatsoever which shall arise in any way connected with or arising out of the contract or/and; (b) the meaning of the operation of any part of the contract or/and; (c) the rights, duties or liabilities of either part or/and; (d) whether the contract should be terminated or has been rightly terminated and as regards parties as the result of such termination; provided that all those matters for which provision has been made in the contract for final and binding decision by the employer or the engineer shall be excluded from arbitration. (3) The venue of Arbitration shall be in Islamabad (4) If any dispute, difference or controversy shall at any time arise between the contractor on the one hand and the employer on the other, touching the contract for the works, or as to the true construction, meaning and intent of any part or condition of the same, or as to the manner of executing the works, or as to the quality or description of or payment for the same, or as to the true intent, meaning, interpretation, construction, or effect of the clauses of the contract, specifications or drawing or any of them or the incidents or consequences of the contract or specifications or drawing of any of them or as to anything to be done, omitted or suffered in pursuance of the contract or specifications, or as to the mode of carrying the contract into effect, or as to the breach or alleged breach, or as to obviating or compensating for the commission of any such breach, or as to any other or thing whatsoever connected with or arising out of the contract, and whether before or during the progress or after the completion of the works, such question, difference or dispute shall be referred for decision to an Arbitrator, who shall be mutually appointed by the employer and the contractor and his decision in writing shall be final, binding and conclusive on both the parties. "

14. Contention of the learned counsel for the respondent that on 21‑7‑1996, the learned trial Court had asked both the parties to give a list of arbitrators and the respondent‑plaintiff gave three names through an application whereas the, appellants‑defendants did not give any list is supported by material on record. There is an application on the file of the learned trial Court on behalf of the respondent‑plaintiff proposing the names of the arbitrator which are as follows : ‑‑‑ (i) Engineer Yousaf Ali, Director, C.D.A., Islamabad; (ii) Engineer S.M. Pasha, General Manager, National Highway Authority, Islamabad; and (iii) Mr. A. Majid Khan, Regional Manager, M.M. Pakistan Limited, Islamabad. The appellants‑defendants in the very first reply to the written reply had contended that the title application is misconceived and not maintainable as there is no dispute preferable in any arbitration by any Arbitrator. In the face of such' a stand taken by the appellants‑defendants, the learned Trial Court was left with no option but to appoint the Arbitrator itself. Both the parties were not agreeable for an Arbitrator even before this Court despite having been asked. The impugned order, therefore, has been passed in terms of section 20 of the Arbitration Act and does not call for interference.

15. For afore‑referred reasons this appeal is not only hopelessly time‑barred but is not tenable even on merit. The same is, hereby, dismissed with no order) as to costs. A.A./G‑62/L Appeal dismissed