1. ' TANVIR AHMED KHAN, J.---Leave to appeal is sought against the judgment, dated 6-7-2000 of a learned Single Judge of the Lahore High Court, Multan Bench, Multan, whereby Civil Revision No,670-D of 2000 filed by the petitioners was dismissed upholding theearlier judgments of the Courts below.
2. ' Briefly stated facts of the case are that the petitioners as well as respondents are successors-in- interest of Chiragh Din. He had two wives; out of one Abdur Rashid deceased was the only son, while the other parties to this petition are from his second wife. At the time of his death in the year 1987 Chiragh Din left behind considerable landed property. The respondent's heirs, sons and daughters of said ChiraghDin, colluded with each other and allegedly appointed Messrs Hafeez Ahmed Khan, Lambardar, Ch. Rehmat Ali, Councillor, Sajawal Khan, Muhammad Sharif and Khan Ghafoor Ahmed, all residents of Chak No,59/EB, Tehsil Arif Wala, District Pakpattan, as their Arbitrators. Said Arbitrators gave an Award on 28-1-1990 whereby the property left by the deceased predecessor-in-interest Chiragh Din was distributed among themselves.
3. ' Respondent No,1 Abdur Rashid thereafter made an application under sections 14 and 17 of the Arbitration Act, 1940 (hereinafter referred to as the Act), before the Civil Judge 1st Class, Arifwala, praying that the Award given on the aforesaid date be made rule of the Court. The learned Civil Judge through his order, dated 17-6-1991-accepted the said application and made the Award, dated 28-1-1990 as rule of the Court.
4. ' When the petitioners came to know about the award, they immediately filed a declaratory suit with perpetual injunction on 1-11-1993 praying for cancellation of the aforesaid Award, dated 28-1- 1990 and the consequent order, dated 17-6-1991 of the Civil Court making it rule of the Court on the plea that they were not parties to the above Award. The respondents moved an application and contested the suit, whereupon Civil Judge IInd Class, Arifwala, through his order, dated 15-2-1995 rejected the plaint under Order VII, rule 11, C.P.C. As the jurisdiction of the Civil Court was barred under sections 32 and 33 of the Act. The petitioners filed an appeal against the above order, which was dismissed by the learned Additional District Judge, Arifwala, vide his judgment, dated 4-4- 2000. Thereafter, the petitioners approached the Lahore High Court at Multan by means of Civil Revision No,570-D of 2000, which too met the same fate and was dismissed by a learned Single Judge through the judgment, dated 6-7-2000, impugned herein. Hence this petition for leave to appeal.
5. ' Learned counsel for the petitioners has argued that the plaint was rejected in an arbitrary manner as the bar envisaged under the Act would not be attracted in the case of the petitioners as they were not parties either to the agreement or to the Award allegedly entered into by the respondents.
6. He has further contended with vehemence that Petitioners' valuable right has been taken away under the cover of the Award and they have been deprived of the property falling to their share after the death of their predecessor-in-interest Chiragh Din.
7. ' On the other hand, learned counsel appearing on behalf of the respondents, has admitted that the petitioners were not parties to the Award proceedings and as such it would not be applicable in their case. However, he, in the circumstances, defended the orders of the Courtsbelow in rejecting the plaint of the petitioners' suit under Order VII, rule 11, C.P.C.
8. We have considered the contentions raised by both the learned counsel and have gone through the entire material placed on record with their assistance. It is reflected from the perusal thereof that the predecessor-in-interest of the parties died in 1987. As earlier stated, he had two wives and Abdur Rashid deceased was son from one wife, while all other members to this litigation are from the second wife of Chiragh Din deceased. The petitioners' mother Mst. Razia Bibi deceased was also mentioned as an heir in the Award. It is also incorporated in the Award that the legal heirs of Mst. Razia Bibi did not agree to the Award. However, we have noticed that in the Award an amount of Rs,2,90,000 had simply been awarded to Abdur Rashid deceased for following the cases of the predecessor-in-interest of the parties before the Courts. He was given extra land as compensation of the same out of the property of the predecessor-in-interest Chiragh Din. It is further borne out from the record that the respondents had distributed the property left by their predecessor at their own at different places and marked the same. We fail to understand how in these circumstances the Award would not be having any effect upon the rights of the petitioners who are admittedly legal heirs of their predecessor-in-interest Chiragh Din. As far as the bar contained in sections 32 and 33 of the Act is concerned, it would not be attracted to the petitioners in the facts and circumstances of the case in hand. It would be appropridte to reproduce sections 32 and 33 of the Act, which read as under:-- "32. Bar to suit contesting arbitration agreement or award.---Notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act.
33. Arbitration agreement or award to be contested- by application.---Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits: ' Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit: 'Provided further that no application challenging the existence or validity of an award, or for having its effect diminished, shall be entertained by the Court unless the applicant has deposited in the Court the amount which he is required to pay under the award or has furnished security to the satisfaction of the Court for the payment of such sum or the fulfilment of any other obligation by him under the award."
9. A reading of the aforesaid sections of the Act brings us to an irresistible conclusion that the bar contained in the above provisions of the Act is applicable only to those persons who were parties to the Award and for them it is required that they could challenge the existence, effect and validity of the arbitration agreement or award through an application. However, it would not be applicable to the petitioners who were admittedly not parties to the agreement/award in question. We also fail to understand how the petitioners would not be affected by the terms of Award when the property left by their predecessor-in-interest had been divided and settled through the same without associating them.
10. Resultantly, in view of the foregoing discussion, this petition is converted into an appeal and is allowed. The case is remitted to the learned trial Court to decide the same afresh after affording opportunity of hearing to both the parties in accordance with law. There will be no order as to costs.
11. The appeal stands disposed of in the terms stated above.