P L D 1987 Quetta 33 (PLP)

This judgment shall dispose of Civil Miscellaneous Appeals Nos. 2, 3, 4 and 5 of 1980 as all of them have the identical facts and the common question of law are involved and were heard together.

2. The Province of Baluchistan has impugned the judgments and decrees passed by the Civil Judge 1st Class, Quetta in Civil Suits Nos. 68, 69, 70 and 63 of 1976 whereby having considered the objections to the award made by the Arbitrator appointed by the District Judge, Quetta in proceed ings initiated by the respondents under section 8/20 of the Arbitration Act the award has been made rule of the Court and decrees passed in terms thereof and the appellant ordered to pay the amount awarded to the respondents by the Arbitrator with 6% interest with quarterly rests from the date of the award i. e. 6th June, 1975 till the whole decretal amount has been realized.

2. The appeals arise out of the proceedings initiated by the respon dents by filing applications on or about 12th November, 1980 under section 8/20 of the Arbitration Act which were registered as suits and were numbered as 68, 69, 70 and 63 of 1976, of being transferred to the file of the Civil Judge Ist Class, Quetta. In Suit No. 68 of 1976 the decree is for a sum of Rs. 4,00,103 in Suit No. 69 of 1976 the sum awarded is Rs. 5,85,150 in Suit No. 70 of 1976 a sum of Rs. 1,62,825 while in Suit No. 63 of 1976 the amount involved is Rs. 27,

900. The award in all these cases were filed by the Arbitrator on 6th June, 1975. Appeal No. 2 arises out of the Suit No. 68, Appeal No. 3 out of Suit No. 69, Appeal No. 4 out of Suit No. 70 while Appeal No. 5 out of Suit No.

63. All these applications were filed through Babu Muhammad Rafiq as attorney in the Court of the District Judge and it was alleged that "since Babu Rafiq happened to be the Chairman, Town Committee Loralai, on account of some interested persons, in order to disrepute him and cause financial loss, disputes were created in respect of carriage, rates, specifications, measurements and material supplied to him without any legitimate basis, final bills were not prepared, nor dues paid as per terms of the contract. And if the respondent sticked to the dispute the same is referable to the arbitrator in accordance with the normal procedure and terms of contract which is being avoided, and in view of the above there is no course left but to approach the Court, to call upon the respondent to file the contract agreement bearing the clause of Arbitration within the purview of section 8/12 of the Arbitration Act." It was said that the cause of action for the application(s) last accrued about a week ago when the respondent (appellants herein) refused to refer the matter to the arbitrator. The valuation of the matter was tentatively fixed at Rs. 100 and it was prayed that "the respondent (appellants herein) may kindly be called upon to file the agreement bearing the Arbitration Clause and refer the matter to the Arbitrator for decision".

3. The District Judge Quetta issued Notice to the appellant but no cause shown and in spite of the orders made by the District Judge and the undertaking given by the Government Pleader appearing for the Government and taking time for production of the agreement did not file the agreements (The minutes of the proceedings recorded on (1) 14‑12‑1973, (2) 21‑12‑1973, (3) 11‑2‑1974,(4) 9‑3‑1974, (5) 4‑4‑1974, (6) 6‑5‑1974 (7) 25‑5‑1974 speak for themselves). The patience of the District Judge was thus tested. Ultimately on 18‑6‑1974 the District Judge, Quetta passed the following order :‑ "The applicant with counsel and Government Pleader present. The Government has not filed any reply. Even the agreement has not been produced. Mr. Jaffer Naim, Advocate has been appointed as Sole Arbitrator. Tentatively Rs. 500 be deposited as his fee. To come up on 31‑7‑1974. (Sd.) Abdul Qadeer, District Judge, Quetta." The time for submitting award was extended by the Court on the requests made by the Arbitrator for reasons shown by him. On 30th June, 1975 the following order was recorded :‑ The order passed on 21st July, 1975 reads :‑ On 31‑7‑1975 the following order was recorded On the objections filed by the appellants the issues were framed, are being reproduced as they would be referred to and considered in this judgment :‑ (1) Whether the arbitrator has misconducted himself and the proceedings? (2) Whether the award has been improperly procured ? (3) Whether the damages are within the scope of arbitration. If so, to what effect ? (4) Whether the objection filed by the applicant is barred by time? The evidence was recorded on different dates upto 20‑12‑1975 by the District Judge, Quetta, thereafter the suits was transferred to the Civil Judge Ist Class, Quetta where they were registered on 8‑3‑1976 and suit numbered as stated above. Evidence produced on behalf of the Govern ment was recorded. The Arbitrator was also summoned by the Court and his statement was also recorded and the objections to the award filed on behalf of the appellant were rejected, the decrees in favour of the respondent herein were passed in Suits Nos. 68, 69, 63 on 21‑5‑1977 by the Civil Judge 1st Class, Quetta while in Suit No. 70 the decree was passed on 23‑7‑1977.

4. The appeals were filed before the District Judge, Quetta on 27‑8‑1977 and 9‑10‑1977 but vide orders dated 5‑12‑1979 all the appeals have been "ordered to be returned to the appellant for presentation to the competent forum". These appeals were thus presented in the High Court on 9‑12‑1979. And alongwith the appeals applications under section 14 of the Limitation Act were filed on 9‑12‑1979. The office recorded objections on 15‑12‑1979 that (f) Certified copy of the judgment dated 5‑12‑1979 passed by District Judge, Quetta to be filed, (ii) Certified copies of Annexures are not properly stamped (iii) Paging to be made. These objec tions were removed on 3‑4‑1980. It is noteworthy that when the appeals were filed in the Court of the District Judge, Quetta each was stamped with court‑fee of Re. I only. The appeals were refiled in the High Court with the same court‑fee of Re. 1 but on 3‑4‑1980 a court‑fee stamp of Re. 1 on each appeal was surreptitiously added without any permission from the Court.

5. The appellants have not challenged the orders passed by the District Judge whereby it has been held that "no appeal" lies to the District Judge as the same memorandums of appeals have been refiled in the High Court.

6. On receipt of the notice to appear in this Court the respondents herein filed objection on 18‑3‑1982 and it was contended therein that the appeals were not validly presented in the High Court. The deficiency in payment of court‑fee was pointed out and the bar of limitation pleaded and it was specifically urged that the court‑fee payable being ad valorem the court‑fee paid is deficient and since there is no request for permission to make good the deficiency the appeals are liable to be thrown out. The application filed by the appellant under section 14 of the Limitation Act was also opposed by a formal reply and it was contended that the appeals filed in the Court of the District Judge, Quetta were also barred by time and were insufficiently stamped. (The court‑fee stamp of Re 1 only was affixed in appeals before the District Judge) and since the appeals filed before the District Judge, Quetta were not competent and were not filed in good faith and with due diligence by the appellants counsel "possessing experience ranging between 20/25 years". The requirements of section 14 of the Limitation Act being non‑existent the time spent in the Court of the District Judge, Quetta cannot be excluded. These applications of the respondents were formally replied and it was urged in reply that the order dated 5‑12‑1979 passed by the District Judge, Quetta were not correct orders and are not based on the correct enunciation of law, yet another application was made on 6‑5‑1982 and it was said therein that "in view of the judgment of this Court in case Province of Baluchistan v. Mir Gul Hasan (P L D 1982 Ouetta 52), court‑fee is payable", and it was prayed that the court fee may be determined to be paid by the appellant. (In the cited case the Province of Baluchistan has paid ad valorem court‑fee).

7. Since the contention raised in the present appeals about the payment of court‑fee was opposed to the view in the reported judgment of Gul Hassan's case. I required the learned counsel for parties to address the Court on this aspect of the case. The Advocate for the appellant has brought on record the instructions he has received from the Court wherein he has been instructed to "base his arguments" on the case reported in 1980 C L C 2177.

8. Mr. Basharatullah, the learned counsel for the appellants has for mulated the following grounds he has urged before me :‑ (a) That the appeals before the District Judge were competent and have been wrongly ordered to be returned. (b) That the wrong return of the appeals is a circumstance justifying the exclusion of time under section 14 of the Limitation Act. (c) Even if the order of the District Judge Quetta is validly passed it is a sufficient cause for condonation of delay. (d) That the application under section 8 of the Arbitration Act is itself not competently filed as Babu Muhammad Rafiq was not the person authorised. (e) That the applications filed (under section 8 of the Arbitration Act) in respect of the cause of action that accrued in 1960 was barred by time. (f) That no notice as is required under section 8 of the Arbitration Act was served on the appellant, as such the proceedings were not maintainable in law. (g) Applications under section 8/20 Arbitration Act could not be filed before the District Judge as the valuation shown in the application did not warrant such an action (The valuation shown was Rs. 100). (h) Since there is no arbitration clause in the agreements involved in Appeals Nos. 2, 3 and 4 no arbitration could therefore be claimed. (i) The award of the arbitrators is without any evidence and thus the arbitrator misconducted himself and the proceeding are bad in law. (j ) The Arbitrator had no authority to award interest. (k) In case covered by Appeal No. 5 of 1980 there is no contract agreement at all. So, no application under section 8 of the Arbitra tion could be made nor the arbitrator could be appointed. Thus, the appointment of Arbitrator is without jurisdiction.

9. Before the merits of the contentions urged on behalf of the appel lant are discussed, I have to deal with the legal objections raised on behalf of the respondent as the objections go to the root of the appeals. The objections about the valid presentation of the appeals and the insufficiency of court‑fee paid thereon and question of Limitation are always to be decided first. The applications made under section 8/20 of the Arbitration Act were entertained by the District Judge as I am told that at the relevant time no Civil Judge lst Class was functioning and the relief claimed was against the Provincial Government. The word Appeal has not been defined in the Code of Civil Procedure. In Warton's Law Lexicon appeal has been defined as "The judicial examination of the decision by a higher Court of the decision of an inferior Court. Lord Westbury's description of appeal given in Attorney‑General v. H. T. Sultan and others (P L D 1963 S C 147) as quoted by Fazal‑e‑Akbar, J. of the Supreme Curt of Pakistan is that "An appeal is the right of entering a superior Curt and invoking its aid and interposition to redress the errors of the Court below". The District Judge has passed orders about the appointment of the Arbitrator who had filed award in the Court of the District Judge where the objections about the acceptance/rejection of the same were made and he had started the consideration thereof and after framing the issues had examined the witnesses produced by the parties. I simply wonder how in such state to facts the Provincial Government advised the Advocate to file appeals in the Court of the District Judge or should have accepted such an advice if given by the legal adviser. It does not stand to reason that the successor District Judge could sit in judgment over these proceedings in appeal. This aspect was so patent that it could not have been ignored. There can be no two opinions that the appeals in these circumstances could not be filed before the District Judge. This aspect is so evident that no mistake should have been made in the first instance and for this reason, time cannot be extended. A bona fide act is one done with due care and attention.

10. It has been shown in the memorandum of appeal that the "decree in terms of the award has been made and it is prayed that the 'decree may be set aside". The proceedings initiated under section 8/20 of the Arbitration Act are under the cognizance of the Court. It is a litigious proceeding‑cause may be shown against the application. The reference was in the course of this litigation. The award was duly sub mitted to the Court. Both parties objected to it. The Court decided all objections and in due course pronounced a decree in accordance with the award in terms of section 17 of the Arbitration Act, which provides that if the Court sees no cause to remit the award and if no application has been made to set aside the award or if the Court has refused such application the Court shall after the time for such application has expired proceed to give judgment according to the award and it is enacted that upon the judgment so given a decree shall follow and shall be enforced in the manner provided for the execution of the decrees. The decree is to the effect that the respondent is to recover the sum of money as awarded by the arbitrator. The order/judgment made by the Court has the force of the decree and is. in effect, a decree. This view is in accordance with the Ruling of Privy Council in Ghulam Muhammad v. Muhammad Hasan (1 L R 29 Cal. 167) which clearly lays down that art order made in a contentious proceedings is a decree. This is the view which was taken in Hari Mohan Singh v. Kali Frashad Chaliha (ILR33 Cal, 11),

11. It is obvious that in arbitration matters like suits for recovery of amount due on unsettled account it is not possible to claim a specific sum of money. Indeed the very object and the purpose of the proceedings is to have the amount examined by the Arbitrator and a decree passed by the Court for such sum as may be found due. It will thus be seen that the matter (under section 8 of the Arbitration Act) under consideration the value as given in the application is only approximate. Admittedly it is no precise, in the very nature of thing it cannot be so. It is fixed ex part 16 and as often as not, is nothing more than an intelligent guess at measuring an unknown quantity. Can it be said that the law contemplates that an inexact and uncertain figure fixed in the circumstances described above, is the only and final "value of the subject‑matter". At the inception, there fore, the amount fixed is the value for the computation of the court‑fee and this value is not fixed in variably and once for all but is liable to be altered under certain circumstances for we find it laid down in section 11, Court. Fee Act that if on taking an account the Court passes a decree in excess of the amount at which the plaintiff valued the relief in the plaint, the; decree shall not be executed unless the difference between the fee actually paid and the fee which could have been payable, had the suit comprised the whole amount, so decreed, shall have been paid to the proper officer. It follows, therefore, that in the event of the decree for a higher sum being passed in such a suit, the value as "determinable for computation of the court‑fee is the enhanced amount so decreed by the Court and it is expressly laid down in the statute that the decree does not become effectual unless and until the deficiency has been made good. This being the value for com putation of court‑fee. It follows the provisions of section 8 Suit Valuation Act that value for purposes of jurisdiction must also protanto increased. It has been held by a Full Bench of Calcutta High Court in ljjatullah Bhujan v. Chandra Mohan Banerji (1 L R 34 Cal. 954) that where a plaintiff fixes a certain sum as the amount of his claim only approximately or tentatively and prays that the amount may be ascertained, the amount found by the Court to be due must generally be regarded as the value of the suit, for the purpose of determining the forum of appeal. The view that in suit where the value approximately and tentatively fixed remain inflexibly and irrevo cably the "value of the subject‑matter of the suit" and that it is this value which regulates the course of appeal in all cases was not accepted. In Kalu Ram v. Hanwant Bi (A I R 1934 Lah. 488). In Budha Mal v. Rallia Ram and others (A I R 1928 Lah. 157) it was held that it was the amount ascertained by the trial Court to be due to the plaintiff and not the sum at which he had valued his claim tentatively and approximately which should be regarded as the suit for the purpose of determining the forum of appeal. This case was approved in Arura Mal Uttam Chand v. Makhan Mal Amir Chand and others (A I R 1930 Lah. 725). The Calcutta High Court in Kanti Chandra Tarafdar and another v. Radha Raman Sirkar and others (A I R 1929 Cal. 815) has held that Schedule 11 Court Fee Act was never intended to apply to a case where a person with a definite decree for a particular amount of policy against him seek to set it aside. It is thus clear that it is the decree which establishes the liability. For these reasons it has been correctly held by the learned District Judge E that since the respondents claim in the Arbitration award has been deter mined at the amount much more than Rs. 25,000 the appeal filed before the District Judge was not competent.

12. The memorandum of appeal is styled as memorandum of appeal from decree but it bore a court‑fee stamp of Re. 1 only. The respondents took a preliminary objection that the appellant has not paid the proper court‑fee and it is contented that ad velorum court‑fee should have been paid on the memorandum of appeal in accordance with Schedule I of the Court Fees Act. Mr. Basharatullah Advocate, the learned counsel for the appellant on the other hand contends that the initiation of these proceed ings being an application and not by a plaint. The memorandum of appeal appears to have been treated as one coming under Article 11 of Schedule II of the Act which relates to a memorandum of appeal, when the appeal is not from a decree or an order having the force of decree. The contention raised by Mr. Basharatullah is the one that was considered by a Division Bench of the Calcutta High Court in Hari Mohan Singh v. Kali Prasad Chaliha and answered in these words : ‑‑ "Now the present appeal is brought against a judgment and decree declaring that an award made on a reference to Arbitration by the parties themselves should be filed under the provisions of section 526 of the Civil Procedure Code. The decree is in terms to the effect that the plaintiff is to recover the sum of Rs. 3,248 and odd as awarded by the Arbitrators. An order directing that such an award be filed, it appears to us, an order having the force of a decree and is, in effect, a decree, and this view is in accordance with the Rulings of the Privy Council in Ghulam Khan v. Muhammad Hassan, which clearly lays down that an order made in a contentious proceeding under sections 525 and 526 of the Civil Procedure Code is a decree. The view which we take was also taken by Old Field, J. in Dayanand v. Bakhtawn Singh I L R 5 All. 333." It was held that an order directing such an award to be filed is a decree and an appeal from such an order is an appeal from a decree and ought to bear court‑fee in accordance with Article 1, Schedule 1 of the Court Fees Act. Hari Mohan Singh's case was referred with approval in Gauri Shanker v. Anant Ram (A I R 1926 Lah. 403), and it has held that where a decree is passed in terms of an award on a reference under Civil Procedure Code. The court‑fee payable on such appeal would be ad valorum under Schedule 1, Rule 1 Court Fees Act, and Hari Mohan Singh's case and another case of Laid Dharam Das v. Ajudhia Prashad (70 P R 1881), was relied. The case of Zafar Hussain Rizvi (1980 C L C 2177), relied upon by Mr. Basharatullah is manifestly distinguishable for the reason that it is based on the assumption that the order passed by the Civil Judge 1st Class Quetta which is impugned in these appeals is not a decree or an orders having the force of the decree. With great respect I dissent from this judgment and am inclined to adopt the view taken in 33 Cal. 11 and A I R 1926 Lah. 403 and hold that ad valorum court‑fee is payable in these appeals and the amount of ad valorum court‑fee is to be calculated according to Article 1 of Schedule I of the Court Fees Act. For the above reasons I concur with the view taken by this Court in Gul Hassan's case, wherein the Provincial Government of Baluchistan has paid ad valorum court‑fee calculated according to Article 1 of Schedule I of the Court Fees Act.

13. The present appeals were filed in the High Court on 9‑12‑1979 with a court‑fee of Re.

1. The later addition of court‑fee stamp of Re. 1 was surreptitiously done on 3‑4‑1980 and it has been insisted by the learned counsel for the appellants that the court‑fee thus made up i. e. Rs. 2 on each appeal is the court‑fee which is payable in view of the decision of the Sind High Court reported in 1980 C L C 2177 and there is no deficiency through no explanation whatsoever has been given for such addition. Certainly this is not authorised and cannot be treated as an honest attempt to comple with the law, thus on 9‑12‑1979 when the appeals were filed in this Court the court‑fee paid was only a fraction of the fee which the appellants admit is payable by them. This stand is inconsistant with the one adopted by the Baluchistan Province in Gul Hassan's case and also against the prayer of the appellant in application made on 6‑5‑1982 wherein it has been conceded that the court‑fee is payable in view of the judgment of the Province of Baluchistan v. Mir Gul Hassan. Basically it is the duty of the appellant to affix correct and proper court‑fee. Admittedly the appeals when filed in High Court, they bore the court‑fee of Re. 1 only and later stamp of Re. 1 was added in the expectation that it would not be noticed and in fact the office did not take notice of it but the respondents have objected not only to the manner in which it was surreptitiously added but have contended that the appeals are not properly presented and in this connection the learned counsel for the respondents has invited my attention to the provisions of section 4 of the Court Fees Act which expressly provides that no document shall be filed, unless in respect of such document there be paid a fee of an amount indicated in the Schedules as proper fee. Section 4 is imperative in its terms and makes impossible for the Court to entertain a memorandum of appeal upon which the proper amount of court‑fee has not been paid. In case reported as Ramzan v. Allah Diwaya (P L D 1953 B J 45), it has been held that insufficiently stamped memo. of appeal is just a paper. A Division Bench of the Karachi in Mst. Sadiqun Nisa's case (P L D 1972 Kar. 103), considered the question arising out of delayed payment of court‑fee stamp and has taken the view that a memorandum of appeal cannot be treated as properly presented so long as the proper court‑fee is not paid. To the same strain is the judgment reported in P L D 1970 Kar.

295. Sir Shah Muhammad Sulaiman, the Acting Chief Justice. in the case of Brijbhusham v. Tota Ram (A I R 1929 All. 75), held that a Court is not bound to accept a memorandum of appeal when it has been brought to its notice that the memorandum is insufficiently stamped. The concession contemplated by section 149, Cr. P. C. cannot be claimed as of a right. This renowned jurist of the sub‑continent refers to the practice of same Vakils to file appeals with insufficient court‑fee stamps, knowing that they are insufficient with a view to save limitation. The learned Judge further proceeds to observe that such deliberate attempts to get round the provisions of the Court Fees Act should not be tolerated. The same view has been taken by the Lahore High Court in A I R 1927 Lah.

884. The same view is expressed in Shyamalal v. Gourishankar (A I R 1929 Nag. 294). The appellant who want to supply deficiency in the court‑fee payable on me of appeal shall have to make out a case for exercise of discretion in his, favour and deserve the indulgence of discretionary order under section 149, C. P. C. The question if the appellant be allowed to pay up deficiency in the court‑fee is in every case essentially a question of fact according to the circumstances of each case. Decided cases which proceeded on their own facts are not of much help except as indicating generally the principles which should be borne in mind in exercising discretion under section 149, Cr. P. C. (See P L D‑ 1949 Lah. 380). In view of the provi sions of section 4 of Court Fees Act, it cannot be said that mere filing of a paper without the proper court‑fee amounts to a proper presentation of the appeal for all purpose. The language of section 149, C. P. C. itself seems to imply that in the absence of an order granting time under that section, presentation of the unstamped or unsufficiently stamped memorandum appeal will not amount to a valid presentation. The concluding words of section 149, C. P. C. provide that when proper'. court‑fee is paid in terms of an order under section 149, C. P. C. the document in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance. The application under section 149, C. P. C. having not been made in these appeals it is impossible to maintain that the appeals have been presented properly and in time. A Division Bench of Lahore High Court in A I R 1947 Lah. 210 (D.B.), after reviewing a large number of cases held that "The provision of Order VII, rule 11, C. P. C. do not apply to the memorandum of appeal. If an insufficiently stamped memorandum of appeal is presented in an appellate Court, it cannot be held that a proper appeal has been filed at all. The memorandum of appeal is a piece of paper which may develop into a proper memorandum of appeal if Court extends time for the payment of the deficient court‑fee under section 149, C. P. C. If on the other hand, the Court refuses to extend time under the provisions of section 149, the document presented in the appellate Court, will never become a proper memorandum of appeal. The Patna High Court in Ram Sahay Ram Pande v. Lakshim Narain Singh (42 1 C 675) has held that "where an appellant has deliberately and to suit his own convenience, paid on his appeal an insufficient court‑fee, the Court is not bound to receive the appeal and give the appellant time to make good the deficiency. Even if the Court has power to receive such an appeal and allow time for the deficiency to be made good, it would be an unreasonable exercise of its jurisdiction to do so". I am clear in my mind that section 149, should not be construed in such a way as to nullify to express provision of section 4, Court Fees Act.

14. The appellant's conduct in preferring appeals before the District Judge, Quetta was not with due care and attention and shall be deemed to be done not bona fide but tainted with gross negligence and this conduct continued even before this Court. The objection about the deficiency was taken by the respondents. The appellant did not wake up, took it leizurely and did not act seriously even then. I am led to the view that the appellants were guilty of negligence verying on contumacy. The appellants have failed to make out a case for exercise of discretion in their favour which would deprive the respondents of a valuable right accrued to them) by lapse of time. Karam Elahee Chauhan, J. (as he then was) in Vilayat Khatoon v. Khalil Khan (P L D 1979 S C 821) has therefore pointed out that "the Court has to strike balance between the two, and whereas at one place it should not be harsh on the plaintiff, equally and at the same time it should not be harsh on defendant to easily take away a valuable defence of limitation from them. The Court must, therefore, in all cases apply its independent mind carefully and attend to their detailed facts and circumstances judicially and fairly. If in a case the plaintiff has been thoroughly negligent, contumacious and careless of his duty in axing a proper court‑fee he would not be entitled to any indulgence for grant of time, which has the effect of causing prejudice to a defendant or to his rights and title to a property which may have become perfect by expiry of the relevant period of limitation in the meantime". This is so because the matter is not confind solely between a subject and state because in such a situation a third person namely defendant has all in the meantime due to running out of the period of limitation in his favour acquired a vested right. It is this category of cases in which a Court is not bound or obliged to grant time nor is it to be granted just in routine or mechanically but by keeping in view the considerations above mentioned. Examining the instant appeals in the light of the above principles it is found that the appeals when filed in the High Court though filed after the expiry of limitation paid a ridiculously low court‑fee of Re. 1 only and later on surrepticiously on 3‑4‑1980 put in an additional stamp of Re. 1 without making an application under section 149, C. P. C. obviously this was a date by which the appeals had been time‑barred and the permission by the Court even could not have been accorded without notice to the L respondent as they bad every right to take exception to the same. The appellant, therefore, failed to comply with the law and acted in disregard thereof but went to the extent of deceiving the Court. The appellants though were aware of the pronouncement of this Court in Gul Hassan's case as they were party to that case yet permitted the counsel to take a stand opposed to that view and left the matter entirely to him. The act of the Advocate cannot be regarded as bona fide and excusable mistake on his part as he did not act with care and attention and does not entitle him to the indulgence of extension of time. The appellants, therefore, must take the responsibility for the consequences which resulted on account of negligence to file the appeal in right Court. It has been ruled by a Division ‑Bench in Said Muhammad v. Goma (PLD 1952BJ8) "That the conclusion drawn from the general rule is that the existence of sufficient cause for not filing the proceedings in time is thus merely a condition that must be satisfied before the Court exercises its power of granting or refusing to grant the extension of time. If the condition is not satisfied, there is no room for the applicability of the power to excuse delay. Thus, where no cause has, at all, been shown that is, where no explanation has been given for filing the proceedings out of time. there arises no opportunity of consider ing the sufficiency or otherwise of the reasons for that fact, and there cannot be any room for the exercise of the discretion given by the section. If the condition is satisfied, then the Court gets a discretionary power to grant or refuse the prayer for extension of time. It may in its discretion refuse to extend the time even there may be sufficient cause for the delay or indulgence to the applicant and cannot be claimed by him as a matter of absolute right." The test, therefore, whether or not a cause is sufficient is to see whether it could have been avoided by the party by the exercise of due care and attention. In other words, whether it is a bona fide cause, inasmuch as nothing shall be deemed to be done bona fide or in good faith which is not A! done with due and attention. The question of the existence of sufficient cause is thus one of fact to be decided from the facts and circumstances of the particular case. What may, be sufficient in one case may well not be sufficient in another case, but this much is certain that where by lapse of time a valueable right has accrued to the other side, it could not lightly be taken away (See 1970 S C M R 558). It has been further emphasised by Hamoodur Rahman, J. (as he then was) in the above case that so far as limitation is concerned the Government cannot claim to be treated in a manner differently from an ordinary litigant, because of the fact that the Government enjoys unusual facilities for the preparation and conduct of their cases and its resources are much large. If in spite of these facilities the Government cannot comply with the requirements of law of limitation, then it is for it to take steps to have that law changed and not to ask the Court to give a different interpretion to its provisions. Relying, therefore, on the above principles the irresistable conclusion that can be arrived at is that the appeals were not properly presented within the prescribed period of limitation, and the proper court‑fees have not been put in and no sufficient cause has been shown as to why this has not been done. The preliminary objections of the respondent are sustained. The contentions raised in Grounds (a), (b) and (c) mentioned in para. 8 of this judgment thus stand disposed of I would for the above reasons dismiss these appeals.

16. Though I am not called upon to deal with the submissions made on merits of the appeals having decided to dismiss them by sustaining the preliminary objections raised on behalf of the respondents, I may point out that on merits as well the appeals cannot succeed. The grounds men tioned at (d), (e), ( f ), (g), (h) and (k) in para. 8 of this judgment are new pleas raised for the first time. The proceedings were initiated before the District Judge, Quetta by Baboo Muhammad Rafiq as attorney and there was any specific assertion made by him that he has been acting as the attorney before the departmental authorities since the execution of the contract. At no stage of the proceedings before the District Judge any such objection was taken so much so that even before the Arbitrator he had prosecuted the matters and no objection was raised. It has been maintained by the learned counsel for the respondents that Baboo Rafiq has been allowed by the appellants to act as attorney even before the initiation of proceedings in Court. It does not lie in the mouth of the appellants now to say that he is not an authorized person. It is asserted that such a power of attorney was furnished to the Government but now it is being denied purposely in order to raise the contention. The respon dents at no stage of time revoked the authority but it has been expressly ratified and the formal document executed therefore has been placed on record. The question now being urged being a question of fact cannot be allowed to be raised for the first time. It it well‑established by now that) if a question of law could have been met by an allegation of fact such. question of law cannot be allowed to be raised at the appellate stage. The plea about the authority of Baboo Rafiq could have been the subject of an issue if raised in reply to the show‑cause notice after the registration of the suits before the District Judge. I am, therefore, of the considered I view that plea being raised for the first time in the High Court does not merit any consideration and I have no hesitation to repel the same.

17. The proceedings were initiated under section 20 of the Arbitration Act requesting that the agreement be filed. The appellants put in appear ance through Government Pleader duly authorised in that behalf but did not show cause to the applications. Section 20 of the Arbitration Act, reads "

20. Application to file in Court arbitration agreement.‑(1) Where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject‑matter of the agreement or any part of it, and where a difference has arisen to which the agreement applies, they or any of them, instead of proceed ing under Chapter 11, may apply to a Court, having jurisdiction in the matter to which the agreement relates, that the agreement be filed in Court. (2) The application shall be in writing and shall be numbered and S 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 the other as defendants. (3) On such application being made, the Court shall direct notice thereof to be given to all parties to the agreement other than the applicants, requiring them to show cause within the time specified in the notice why the agreement should not be filed. (4) Where no sufficient cause is shown, the Court shall order the agreement to be filed and shall make an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or where the parties cannot agree upon an arbitrator, to an arbitrator appointed by the Court. (5) Thereafter, the arbitration shall proceed in accordance with, and shall be governed by, the other provisions of this Act so far as they can be made applicable." From the reading of these provisions of the Act it is clear that as, soon as an application for filing the agreement is made it is necessary to give notice to all parties to the agreement other than the applicant to show cause why agreement should not be filed, when such parties fail to show sufficient cause as contemplated by subsection (4) "The Court shall order the agreement to be filed", and after this is done the Court shall make a reference to the Arbitrator. In case the parties fail to come to any agree ment it can make reference to the Arbitrator appointed by it. After the Court has ordered the filing of the agreement subsection (5) of section 20 at once comes into operation. It says that after the agreement is ordered to be filed the arbitration shall proceed in accordance with, and shall be governed by the other provisions of the Act so far as they can be made applicable. Undoubtedly, therefore, provisions of section 8 of the Act are also attracted. It is, therefore, for the objector to show that the intention of the party was not to refer the dispute to any Arbitrator. It was for p the appellants to show that the intention of the party was not to refer to any Arbitrator. It was for the appellant to show sufficient cause and the objection on behalf of the appellants could then be about the maintain ability of the application. Under section 8 of the Arbitration Act and also the existence or the validity of the agreement itself and the plea of limita tion in relation to the proceedings under section 8/20 of Arbitration Act could be made and substantiated before the District Judge at the first instance. The appellants have failed to show cause or raise any such objection at the proper time, I am, therefore, of the firm view that the Court was justified in ordering the appellants to the filing of the agreement. The minutes of the proceedings recorded by the District Judge contain an order dated 17‑9‑1975 which in unequivocal terms directed the Government Pleader that the witness who bring the agreement should also bring Schedule of Work "B" on which the estimated amount is based. One such schedule was produced but the agreement was withheld. This conduct of the Department speaks for itself and nothing further is required to demonstrate the hollowness of the stand that there was no agreement or that the agreement did not contain the Arbitration clause. The Govern ment fully knew all the circumstances in which the Arbitrator had been appointed and took part in the proceedings before the arbitrator without raising any objection as to any defect in his appointment at the first opportunity and allowed the award to be made without any protest, taking a chance of a favourable decision it must be held that the Government acquiesced in the appointment and waived the objection to any defect in the appointment. As such the appellant is estopped from raising any objection to such appointment as invaliding subsequent proceedings,. Questions as to the existence or validity of the agreement are saved from the decisions by the Arbitrator. Since such a plea can only be raised in bar of an application by person seeking a reference to Arbitration. The contention of the learned counsel for the appellants overlooks the provi sions of subsection (4) of section 20 of the Arbitration Act. The powers and duties of the Court are of two distinct kinds. The first is the judicial function to consider whether the Arbitration agreement shall be filed in Court or not. That may involve dealing with the objections as to the existence and validity of the agreement itself. Once this is done and the Court has decided that to agreement must be filed, the first part of its power and duties is over. It is significant that an appeal under section 39 lies against the decision on this part of subsection (4). Then 112 follows the act of reference to Arbitrator. If the parties do not agree the Court may be required to make a decision as to who should be selected as an Arbitrator. The party not wanting the reference can oppose it Oil various grounds and one of them can be the assertion that no Arbitration Agreement exists. In the present case the District. Judge had performed the act of appointing Arbitrator whose appointment the appellants did not object and there was no objection in regard to the invalidity or absence of the agreement of reference either.

18. The point urged by the learned counsel for the appellant is that the application under section 20 of the Arbitration Act presented by the respondents was time‑barred. The question is not a pure question of law. The question whether the application had become time‑barred or not would depend on a determination of the date with effect from which the period of limitation started to run. Such a question of fact could properly be investigated by the Trial Court. However, it has come on record through the evidence of Saleem Durrani, the XEN concerned that final bills were being prepared but the award was pronounced in the meantime. The question of limitation was not raised before the District Judge and has been raised for the first time in appeal. Besides new grounds can not be entertained after the period prescribed under Article 158 of the Limitation Act, 1908. The points raised involve enquire into facts and cannot be R permitted to be raised. (See P L D 1975 S C 318). This is so because the appeal against the disallowing of objections to the validity of the award must be confined to such objection which were taken in that Court and no other. In fact it is very surprising that the Government should have instructed the counsel to raise these points which involves question of facts and law in appeal when it had not been taken at any stage of the proceedings that had been going on since, 1973. I, therefore, held that it is not open to raise these points at this stage of the proceedings for the first time.

19. As already mentioned the proceedings were initiated at a time when no Civil Judge 1st Class was available as the post was vacant. The cognizance taken in the circumstances of the case by the District Judge therefore was legally justified. Section 15 of the C. P. C. is a rule of procedure, not of jurisdiction and whilst it lays down that a suit shall be instituted in the Court of the lowest Grade, it does not oust the jurisdiction of a higher Grade. Therefore, nothing stood in the way of its institution in the Court of the District Judge, Quetta its presentation in the said Court. P L D 1974 Kar. 406 may be referred to.

20. Now there remains to be considered the objections about the award filed by the Arbitrator and his authority to award the interest. The word misconduct has not been defined in the Act. The Legislature in its wisdom has deliberately left the term undefined. The Arbitrator is a Judge who is to perform the function of a Judge is not disputed. Misconduct includes neglect of the duties and responsibilities by the T Arbitrator and of what Courts of justice expect them before allowing finality to his award. Before the Arbitrator whatever evidence was desired to be produced, by the departments has been allowed. The objection, therefore, made before the District Judge, Quetta that the proper oppor tunity was not afforded by the Arbitrator stands repelled. The Arbitrator has appeared in Court but nothing has been brought on record, which may discredit him. The arbitrator in the instant case besides examining the Department's witnesses inspected the sites of the works and based the award on the admissions of the Departments' witnesses. There is no p indication of any negligence or recklessness on the face of the award. The trial Court even made a supplementary investigation of the entire proceeding before the arbitrator and concurred with the findings. The trial Court was satisfied that there was ample evidence to enable the learned arbitrator to come to the conclusions he has arrived at. I am, therefore, of the opinion that the appraisement of the evidence was correct. Mr. Basharatullah has urged that the arbitrator acted in excess of his authority by awarding interest on the amount found by him and to that extent the award and the decree was bad. Assuming that the arbitrator had exceeded his jurisdiction, the impugned portion of the award was obviously separable and it was open to the Court to have set aside that part of the award and proceed to exercise its own power under section 29 of the Arbitration Act. This section authorised the Court, v where the award is for the payment of money, to order the payment of interest from the date of the decree at such rate, as it deems reasonable. The Court in making this portion of the award a part of its decree, must in the circumstances of this case, be deemed to have adopted it in the exercise of its own power under section 29 of the Arbitration Act. In Malik Gul Hassan's case the High Court had granted interest which was challenged before the Supreme Court in C. P. S. L..A. No. Q‑2 of 1982 and the Supreme Court have observed: ‑‑ "The question whether the Court should grant interest was open before the High Court as the appeal is a continuation of the proceedings in the original Court, and therefore by virtue of Order XLI, rule 33, C. P. C. the appellate Court could exercise the same powers as those possessed by the original Court. It was not denied that the learned Senior Civil Judge had the power to grant interest under section 29 of the Arbitration Act, we, therefore, do not find sub stance in this contention. At any rate, having regard to the reasons assigned by the High Court, for granting relief to the respondent, we consider this part of the order fair in the circum stances of the case, which does not require our interference". The leave was, therefore, refused. Respectfully following the law laid down by the Supreme Court I find no substance in the contention raised by the counsel for the appellants. The respondents money remained blocked for so many years and as the value of money has considerably gone down they deserve to be compensated in all fairness. I would accordingly allow simple interest at the rate of 6 per cent per annum from the date of the decrees in question and such amount shall be calculated and added to the decretal amounts. The decrees shall accordingly be modified to this extent. A. A. Appeals dismissed.