2012 PLP 1606 (SCMR)

NASIR-UL-MULK, J.

Through this direct appeal the appellant, Ch. Qaiser Mehmood, impugns the judgment of the Lahore High Court dated 7-2-2007, allowing the appeal of the respondents, the Province of Punjab and others, and remitting the case to the trial Court for proceeding after due notice to the parties under section 14(2) of the Arbitration Act.

2. The appellant was granted construction contract by the Works Department, Government of the Punjab in District Kasur and a dispute arose between the appellant and the Department over execution of the work, as a result the Department declined to release the security furnished by the appellant. In accordance with the terms of the contract, the appellant moved an application on 6-10-1994 before the Civil Judge, Kasur, under section 20 of the Arbitration Act, for the appointment of the Arbitrators for resolution of the dispute. The Arbitrators were appointed before whom both the parties submitted their respective cases and eventually the Arbitrators drew an award, which they filed before the Court on 27-11-2001. The Arbitrators found that the respondent Department was to pay Rs.2,99,067.81. On 28-11-2001, the Civil Judge recorded the statements of the Assistant District Attorney (ADA) and the Sub-Divisional Officer (SDO), Provincial Works, Sub-Division Kasur, Zulqarnain Ali Shah, to the effect that they would not file any objection to the award. A similar statement was also made by the appellant. The award was thus made rule of the Court on 7-12-2001. On the same day the SDO made an application for adjournment of the case in order to file objections to the award. The application was dismissed on the ground that once the ADA and SDO had given up filing of any objection to the award, they are estopped from filing any objection. The judgment and decree of the Trial Court passed on the award was challenged by the respondents before the District Judge, Kasur, wherein it was mainly pleaded that the SDO and the ADA were not authorized to make conceding statement before the Court. This plea did not prevail and the Appellate Court dismissed the appeal on the additional ground that they had failed to file the decree-sheet with the appeal. The High Court, however, in its revisional jurisdiction set aside the decree of the Trial Court, holding, firstly, that to meet the requirement of section 14(2) of the Arbitration Act the trial Court ought to have served notices on the parties after the Arbitrators filed the award and, secondly, the SDO and ADA were not empowered to make concessional statement before the trial Court.

3. The learned counsel appearing for the appellant submitted that the provisions of section 14(2) of the Arbitration Act were directory and not mandatory as the non-compliance with the provisions is not visited by any penal clause. That in any case the Provincial Government and the Works Department were represented by the Law Officer as well as the representative of the Department throughout the proceedings and thus no prejudice was caused to the respondents. The learned counsel relied upon PAKISTAN THROUGH GENERAL MANAGER PAKISTAN RAILWAYS v. MESSRS Q.M.R. EXPERT CONSULTANTS (PLD 1990 SC 800) and contended that the Government Pleader duly represents the Government and is empowered to make responsible statement on its behalf. He next argued that throughout the proceedings, the SDO had duly represented the Department.

4. Mr. Mudassar Khalid Abbasi, the learned Additional Advocate-General, Punjab, representing the respondents, submitted that the Government Pleader nor the SDO were empowered to make conceding statement on behalf of the Government. He relied upon the judgment of this Court in FAISALABAD DEVELOPMENT AUTHORITY v. RAJA JAHANGIR NASIR AND OTHERS (2004 SCMR 4247). Defending the impugned judgment, the Additional Advocate General submitted that after award was filed by the Arbitrators, it was mandatory that notice should have been issued to the Government and the concerned Department under section 14(2) of the Arbitration Act.

5. In the present case after the applicant moved an application for the appointment of the Arbitrators, reply on behalf of the Works Department contesting the request of the appellant was filed by the XEN as well as SDO of the Work Department. Before the Award was submitted on 27-11-2001, the SDO had been representing the Department. He was present in Court on the day the Award was filed and had continued to appear before the Court on the subsequent dates. The Department had never questioned the authority of the SDO to represent it or to make a statement on its behalf. The very fact that on 7-12-2001 the SDO had made a request to the Trial Court for submitting objections shows that he continued to represent the Department. Even in the proceedings before the Arbitrators, the SDO along with XEN represented the Department. The learned Additional Advocate-General had submitted that it was the XEN alone who could represent the Department. There is nothing on the record to substantiate this assertion. The XEN had also made no application before the trial Court questioning the authority of the SDO to make statement on behalf of the Department. This being the position, we do not find ourselves in agreement with the High Court that the statement by the SDO as well as the ADA was not authorized. When asked, the Additional Advocate General was not aware as to whether or not any Departmental action was taken against the SDO and the ADA.

6. As to the requirement of section 14(2) of the Arbitration Act, the object is to procure the attendance of the parties concerned before the Court after the award is filed to provide them opportunity to file objections, if any. As already stated the ADA and the SDO were present before the Court when the award was filed and thus no prejudice was caused to the respondents.

7. One of the grounds for dismissing of the appeal of the respondents by the Appellate Court was the non-filing of the decree-sheet with the appeal. Needless to state that the appeal lies against the decree and in its absence the appeal is incompetent. The perusal of the judgment of the High Court shows that this finding of the High Court has not been attended to. When confronted the Additional Advocate-General was unable to advance any argument for reversal of the finding of the Appellate Court on the said issue.

8. We have noted that the dispute between the parties relates to the year 1994 and the Arbitrators had awarded the appellant a paltry sum of Rs.2,99,067.81 without interest. Almost 18 years have been passed away and the appellant is still to be paid the said amount. Its high time the litigation should come to an end rather than starting another round of litigation. Consequently, the appeal is allowed with the result that the impugned judgment and decree of the High Court is set aside and that of the Civil Judge and Additional District Judge Kasur are restored. M.W.A./Q-4/SC Appeal allowed.