' Brief facts in the instant appeal are that the respondent entered into an agreement with the appellants for the work of "construction of High Level Bridge over Kahan Nullah at Malot in Jehlum District". A dispute to the work and payment arose between the parties. The respondent invoked the arbitration clause as a consequence of which Chief Engineer, Punjab Highway Department (North)
Lahore appointed Messrs Zaheer-ud-Din Babar and Malik Mubarik Badar as arbitrators who declined to act as arbitrators, therefore an application was moved under sections 5, 8, 11 and 20 of the Arbitration Act for the revocation of the authority of the arbitrators and for fresh appointment which was accepted vide order dated 22-7-1992 and Mr. Muhammad Munir Chughtai and Mr. Zaheer-ud-Din Babar were appointed as arbitrator and co-arbitrator who vide their decision dated 3-3-1997 accepted claim No,1 of the respondent in the sum of Rs.7,60,000 for the change of strata, rejected claim No,2 relating to the difference of length for quantity of 121 Kgs. At the rate of 1800 Kgs., rejected claim No,3 where the respondent demanded the payment for difference of rate in using crush from. Margala Hill instead of using local crush, and also rejected claim No,4 claiming the losses which were sustained during the flood of 1989 and claim No,8 with respect to overhead charges and idle T & P for the period the work remained suspended and claim No,9 for compensation. However, the arbitrators accepted claim No,1 where the respondent demanded the payment for incurring extra expenditure for piling in the presence changed strata at the rate of Rs.500 per R.F.T. For quantity of 1520 R.F.T. In the sum of Rs.7,60,000 and also accepted claims Nos.5, 6, 7 and 10 pertaining to the payment under variation clause and in respect of finalization of the contract due to non-payment and high prices in the open market in clause 3-C of the agreement and litigation charges and made an award of Rs.16,490 in favour of respondent.
2. This award was placed before the learned Civil Judge Ist Class to be made as Rule of Court. The objections were filed by the appellants but the learned Civil Judge vide judgment dated 18-6-1997 rejected the objection petition and made an award which was Exh.D.1 on the file as a Rule of Court and the decree was framed in terms of the award and the respondent was directed to make the payment under the award within 30 days from the date of passing of decree. Against this judgment the instant appeal has been filed.
3. Arguments advanced by learned counsel for the appellants are that no issues were framed by the arbitrators as no contract can be invoked in the agreement. The arbitrators misconducted and even the learned Court below was not competent to make the award as a Rule of Court. Placed reliance on Sheoram Prasad Ram Narayanlal Bania v. Gopal Prasad Parmeshwardayal Shula and others AIR 1959 Madhia Pradesh page 102 (V 46 C 36) and Hitachi Ltd. And another v. Rupali Polyester and others 1998 SCMR page 1618 where leave to appeal was granted by Honourable Supreme Court for considering as to what was the ' Effect of the factum that the appellants and respondents did not reside and were not located within the Pakistan.
3. Learned counsel for the respondent submitted that in fact both the arbitrators belong to appellants Department and it is always with the department to nominate the officials. Both the arbitrators discussed each and every claim and item minutely and unanimous award in favour of respondent which was made as a Rule of Court and the decree was passed. The objection petition filed by the appellants was dismissed. The appellants went in appeal to the High Court which too was dismissed and the further appeal in the Honourable Supreme Court also met the same fate.
Relies on Lahore Development Authority v. Messrs Khalid Javed & Co. 1983 SCMR 718 where it was held that under sections 17 and 20 of Arbitration Act, Arbitrators:-- "nominees of petitioners giving fair and proper opportunity to both parties to establish their respective cases adequately considering and deciding every item of claim made by respondent and no "misconduct" established against them Held, trial Court was fully justified in the circumstances of the case in making the award as a Rule of Court and High Court acted properly in dismissing summarily appeal preferred against such determination."
' Further in case of Zaka Ullah Khan v. Government of Pakistan through Secretary Buildings and Roads Department, Lahore PLD 1998 Lahore 132 it was held that:-- "An award under sections 14, 15, 16, 17, 30 and 33 of Arbitration Act, 1940, arbitration is a settlement of controversies/disputes by one or more persons chosen by the parties themselves. This object is to curtail period of litigation, to encourage resolution of conflict through Judges on their own choice, the arbitrators are not strictly bound by rules of technicalities embodied in Procedural Laws as well as Qanoon-eShahadat, the Courts are given role to see that these Judges decide causes strictly under the provision of sections 14 to 17 and sections 30 and 33" Arbitration Act. It was further held that sections 30 and 33, law would lean in favour of upholding of award and not vitiating it."
' He further argued that as all the public functionaries of appellants are in Lahore, The appointment of the arbitrators was not challenged in appeal under section 20 of the Arbitration Act by the appellants that means the appellants now cannot raise and challenge the jurisdiction of the Court.
4. I have heard the learned counsel for the parties, perused the award as well as impugned judgment of the learned Civil Judge.
5. Learned counsel for the appellants has not pointed out any misconduct committed by arbitrators and vide their judgments rejected the claims Nos.2, 3, 4, 8 and 9 and the appellants have not challenged these rejection. While relying on the aforesaid judgments of the Honourable Supreme Court where it was held that if the arbitrators have adequately considered and decided every item of claim made by the respondent and no misconduct is established against them, then the law would lean in favour of upholding of award and not vitiating. Ashfaq Ali Qureshi v. Municipal Corporation Multan and another 1985 SCMR 597: Abdul Rauf v. Muhammad Saeed Akhtar PLD 1958 (W.P.) Kar. 145 and M.A. Ali Mian v. Green & Co. White Ltd. PLD 1964 Dacca 527 where it is held that:-- "A well-settled rule of construction of the award is that the award should be construed, liberally and in accordance with common sense, it should be so read that it can be given effect to and not so that it would nullify the efforts of the arbitrators appointed by the parties themselves."
6. The point raised in respect of challenge of jurisdiction of the learned Courts below by the learned counsel for the appellants is meaningless as earlier the respondent moved an application in Civil Court, Lahore under section 41 read with Schedule 2 of the Arbitration Act, alongwith Order XXXIX, Rules 1 and 2, C.P.C. In which it was prayed for restraining the respondents to allot the work to another agency till such time the arbitrators are appointed to visit the site and to adjudicate upon the dispute for award. On point of jurisdiction the appellants silence is meaningful. They being Government Department and statutory body refrains to challenge the jurisdictional point of the Court at the right time and right place, cannot agitate the same at this stage. Moreover, it is also admitted that tender of work was accepted at Lahore and appellants all work functionaries have their head offices at Lahore. Therefore, the learned Court below rightly decided the issue relating to jurisdiction while making the award as Rule of Cart.
7. In view of the above circumstances of the case. The appeal being ID without merits is dismissed.
No order as to costs.