ORDER present revision petition arises are that an agreement was executed between the parties on 17-2- 1999, which contained clause 18.3. The dispute arose between the parties. The competent authority under the aforesaid clause appointed arbitrator namely Mr. Justice (R) Nasir Aslam Zahid on 29-1- 2001. The arbitrator has conducted the proceedings at Karachi and he has announced the award at Karachi on 31-8-2002. The arbitrator has submitted the application under section 14(2) of the Arbitration Act, 1940 to make the award as Rule of the Court .Before the Court of Senior Civil Judge, Lahore on 23-11-2002. The respondent filed an application under section 17 of the Arbitration Act, 1940 to make the award as Rule of the Court on 4-1-2003 before the Senior Civil Judge, Lahore. The petitioner filed objection under sections 30/33 of the Arbitration Act, 1940 by raising objection that Senior Civil Judge, Lahore has no jurisdiction to take the cognizance of the matter on account of territorial jurisdiction. Subsequently, the petitioner filed application under Order 7 Rule 10, C.P.C.
Before the Senior Civil Judge, Lahore on 14-5-2003, which was dismissed by the Senior Civil Judge, Lahore vide impugned order, dated 16-6-2003, hence the present revision petition.
2. The learned counsel of the petitioner submits that the competent authority has appointed arbitrator at Karachi in terms of the aforesaid agreement arrived at between the parties. The arbitrator conducted the proceedings at Karachi and has also announced the award at Karachi. He further submits that the arbitrator erred in law to file the application under section 14 of the Arbitration Act, 1940 before the Senior Civil Judge, Lahore, which is not in consonance with the law laid down by the superior Courts. In support of his contentions, he relied upon the following Judgments:-- Standard Insurance Co. v. Pak. Garments Ltd. (1998 SCMR 1239), Hakam Singh v. Gammon (India)
Ltd. (AIR 1971 SC 740), State Life Insurance Corporation of Pakistan v. Muhammad Saleem (1987 SCMR 393), Muhammad Asghar v. Shah Muhammad Awan (PLD 1986 SC 542), Messrs Kadir Motors v. Messrs National Motors Ltd. (1992 SCMR 1174), Bankers Equity Limited v. Apex Fabrics Limited (2001 YLR 1213), Messrs E.F.U. General Insurance Limited v. Fahimul Hag (1997 CLC 1441) and Balsukh Refractories and Ceramics Ltd. v. Hindustan Steel Ltd. And others (AIR 1977 Calcutta 20).
3. The learned counsel of the respondent submits that respondent has filed application before the Senior Civil Judge, Lahore on 4-1-2003 under section 17 of the Arbitration Act to make the award as Rule of the Court. The petitioner has not filed any reply of the said application. He further submits that petitioner has ' participated in the proceedings and submitted to the jurisdiction of the Senior Civil Judge Lahore by filing objection petition under sections 30/33 of the Arbitration Act before the Senior Civil Judge, Lahore on 14-1-2003, therefore, the Trial Court was justified to dismigs the application subsequently filed by the petitioner under Order 7, Rule 10, C.P.C. Which is in consonance with the law laid down by the superior Courts in the following judgments:- Vissamseth Chandra Narasimham v. Messrs Randaya Rameswa ralal (AIR 1966 A.P. 134), Messrs Gulati Construction of Jhansi v. Betwa Tiver Board (AIR 1984 Del 299), Raman Lamba v. D.M. Harish (AIR 1991 Born. 311), Patel Bros v. Vadilal Khaidas (AIR 1959 Mad 227), Kumud v. Fertilizer Corp of India (AIR 1985 Cal 89), A.B.C. Laminart v. A.P.
Agencies Salem (AIR 1989 SC 1239), RSDV Finance Co. v. Shree Vallbh Glass Works (AIR 1993 SC 2094), Sunrise Industries v. Subhadara Engineering Works (2002 3 Arb LR III (AP)), Rajaram Maize Products v. M.P. Electricity Board (AIR 1.999 MP 44), Kadir Motors v. National Motors (1992 SCMR 1174), Pakistan v. Pak. Chrome Leather (PLD 1983 Lah. 326), Ghulam Nabi v. Mirza Iqbal (1994 SCMR 1893), State v. Paras Nath (AIR 1979 Pat 196), Ramkirpal Sharma v. Uol (AIR 1986 Cal 80), Guru Nanak Foundation v. Raattan Sindh (AIR 1981 SC 2075), Holum Raj Sajjan Raj Kumbat v. Dorado Guarantee (2002 2 Arb LR 119 (Cal.) and Ibrahim v. Muhammad Hussain (PLD 1975 SC 457).
He further submits that by consent of the parties in view of Clause 18.3, the Court of Senior Civil Judge, Lahore is not barred to take cognizance of the matter in view of section 2(C) read with section 31( 2 to 4) of the Arbitration Act read with section 28 of the Contract Act. He further submits that petitioner has not mentioned in the application that subject matter does not fall under the territorial jurisdiction of the Trial Court. He further submits that clause 18.3 does not reveal any competent Court in Karachi. He further submits that clause 18.3 contained the word "May", which clearly envisaged that clause 18.3 is directory in nature and not mandatory in nature. He further submits that petitioner has participated in the proceedings; therefore, no prejudice is caused to the petitioner in view of the contents of section 21 of C.P.C. He further submits that the petitioner himself filed a Civil Suit before the Senior Civil Judge, Lahore, against encashment of the bank guaranty arising out of the agteement in-question, in which the interim relief was initially granted by the Senior Civil Judge Lahore, to the petitioner and subsequently interim relief was withdrawn and finally the suit was withdrawn in view of the settlement between the parties. During the proceedings initiated by the arbitrator, respondent filed application under section 41 before the Senior Civil Judge, Lahore, which was refused by the Senior Civil Judge concerned, against which the respondent filed Civil Revision No. 1249 of 2002 before this Court, which was subsequently withdrawn. He further submits that petitioner is debarred to file application under Orkr 7 Rule 10, C.P.C. On the principle of approbate and reprobate. He further submits that petitioner has participated in the proceedings as the. Application filed by the arbitrator, therefore, Senior Civil Judge, Lahore has only jurisdiction in view of section 31(1) to (4) of the Arbitration Act.
4. Learned counsel of the petitioner in rebuttal submits that petitioner has filed a suit qua encashment of the bank guarantee before the Senior Civil Judge, Lahore, therefore, petitioner is not debarred to raise the objection of territorial jurisdiction in' the present proceedings. He further submits that petitioner has raised objection of territorial jurisdiction in the application filed by the respondent before the Senior Civil Judge, Lahore under section 41 of the Arbitration Act. He summed up his arguments that impugned order is without lawful authority and is not in accordance with the law laid down by the superior Courts cited by him, which is noted in the preceding paragraphs.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties .And perused the record.
6. It is better and appropriate to reproduce the basic facts in chronological order, clause 18.3 of the agreement, relevant grovision of the Arbitration Act and Contract Act, to resolve the controversy between the parties:--
(i) The agreement was executed between the parties at Lahore. On 17-2-1999;
(ii) the agreement was performed at Lahore;
(iii) the cause of action arose at Lahore;
(iv) the petitioner filed Civil Suit before Civil Court at Lahore against the encashment of the bank guaranty, secured interim relief, which was vacated subsequently, *suit was withdrawn;.
(v) the dispute arose between the parties at Lahore;
(vi) according to clause 18.3 of the agreement arbitrator was appointed by the competent authority under the provisions of the agreement on 29-1-2001;
(vii) the petitioner also reside at Lahore;
(viii) the petitioner/respondent also initiated proceedings before the Civil Court at Lahore;
(ix) the petitioner did not take any step to challenge the award, dated 31-8-2002 before any Court in Karachi;
(x) respondent filed application under section 41 qua the proceedings initiated by the Arbitrator at Karachi, in the Civil Court at Lahore, which was dismissed and the respondent filed Civil Revision No.1249-2002, which was subsequently withdrawn;
(xi) the arbitrator submitted the application under section 14 in Civil Court at Lahore on 23-11-2002;
(xii) the respondent ICI filed application under section 17 before the Trial Court to make the award as Rule of the Court on 4-1-2003.
(xiii) the present petitioner filed objection before the trial Court under sections 30/33 on 14-1-2003.
(xiv) the present petitioner filed application under Order 7, Rule 10, C.P.C., before the trial Court, which was dismissed on 16-6-2003.
Section 2(c) of Arbitration Act.--- "Court" means a Civil Court having jurisdiction to decide the questions forming the subject-matter of the reference if the same had been the subject-matter of a suit, but does not, except for the purpose of arbitration proceedings under section 21, include a Small Cause Court;"
Section 31(1) to (4) of Arbitration Act:-- Jurisdiction (1) Subject to the provisions of this Act, an award may be filed in any Court having jurisdiction in the matter to which the reference relates.
(2) Notwithstanding anything contained in any other law for the time being in force and save as otherwise provided in this Act, all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or person claiming under them shall be decided by the Court in which the award under the agreement has been, or may be, filed, and by no other Court.
(3) All applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings shall be made to the Court where the award has been, or may be filed, and to no other Court.
(4) Notwithstanding anything contained elsewhere in this Act has been in force, where in any reference any application under this Act has been made in a Court competent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference and the arbitration proceedings shall be made in that Court and in on other Court.
Clause 18.3, of the agreement.-- "If eny qgestion of difference or dispute whatsoever shall arise between the parties hereto touching this Agreement or anyway connected therewith or arising therefrom, which cannot be amicably settled under Article 17.1 above, then and in all such cases, the same shall be referred for arbitration at Karachi to a person named jointly by the Company and the Customer and in the event that the Company and the Customer cannot so agree to a person named by the President of the Management Association of Pakistan acting as sole arbitrator and the person so named shall proceed to arbitrate in accordance with the Arbitration Act, 1940 and the Rules made there-under or any modification thereof, for the time being in force. Any award or awards (which shall specify the reasons for the same) referred in such arbitration shall be final and binding on the Parties who shall give full effect thereto, and judgment may be entered upon such award(s) in any competent Court in Karachi." (Under line is mine)
The phrase Lex fori is defined in Black's Law Dictionary Sixth Edition as under:- Lex fori: The law of the forum, or Court; that is, the positive law of the State, country or jurisdiction of whose judicial system the Court where the suit is brought or remedy sought is an integral part.
Substantive rights are determined #TBS Singhal Transport's case (AIR #TBE by the law of the place where the action arose, "lex loci," while the procedural rights are governed by the law of the place of the form, fori," Mitchell v.
Mitchell, La. App. 5 Cir, 483 So. 2d 1152, 1154."
Doctrine of forum non-convenience" is also defined in Black's Law Dictionary Sixth Edition, which means power of Court to decline jurisdiction when convenience of parties and ends of justice would be better served if actions were brought and tried in another forum. It is also settled principle of law that friction of cause of action will be part of cause of action and confers jurisdiction on a Court within the territorial jurisdiction of the little occurs. In arriving to this conclusion, I am also fortified by the law laid down in the following judgments:-- D. Munirangappa v. Amidaya la. Venkatappa and other (AIR 1965 Masoor 316), Tribni Prasad Singh and other v. Ramasray Prasad Ch (AIR 1931 Patna. 241), Swaminatha Mudali v. M. Saravana Mduali and others (AIR 1918 Madras 383), Munna Lal v. Chhabil Das and others (AIR 1918 Lahore 329), Nittala Achayya and others v. Nittala Yellama and others (AIR 1923 Madras 109) and Faqir Muhammad v.
Pakistan through Secretary, Ministry of Interior and Kashmir Affairs Division Islamabad (2000 SCMR 1312).
It is also settled principle of law that suit can be filed where wrong committed or part of cause of action accrued. In arriving to this conclusion I am fortified by the law laid down in Akmide v. Akber Ali Malik (2000 MLD 1693) and Faqir Muhammad v. Pakistan Through Secretary Ministry of 'Interior and Kashmir Affair Division, Islamabad (2000 SCMR 1312). It is pertinent to mention here that both the parties are residing at Lahore, therefore, no prejudice is caused to the petitioner, therefore, application filed by the petitioner before the Trial Court was rightly dismissed by the Trial Court in view of the parameters prescribed by the Legislature in its wisdom in section 21 of the C.P.C. It is also proper to mention here that clause 18.3 reproduced above clearly envisages the word "May", therefore, it is directory in nature and not mandatory in nature, coupled with the fact that petitioner has already filed civil suit against the respondent in the Civil Court at Lahore, therefore, petitiorier is debarred to agitate the matter before the trial Court by filing application under Order 7 Rule 10, C.P.C. On the well known principle of approbate and reprobate, waiver and estoppel as the law laid down by the Honoruable Supreme Court in Ghulam RasOol's case (PLD 1971 SC 376). It is also settled principle of law that agreement executed between the parties in violation of the substantive law is void. Under the law no man exclude himself from the protection of Courts by contract as law laid down in Rehmatunnissa Begum and others v. Prince and others (AIR 1917 P.C. 116). It has been held in a number of Jpdgments 'of different Courts that where more Courts than one home jurisdiction to try a suit there is nothing in violation to public policy in the agreement executed between the parties to the extent that dispute between them would be tried at one place out of these. In arriving to this conclusion I am fortified by the following precedents:-- 1968 Raj. 89) and National Petroleum's case (AIR 1937 Nag. 334).
The Full Bench of this Court while interpreting section 28 of the Contract Act in Musaji Lumnanji's case (AIR 1946 Lah. 57) has laid down following principle: "It was held that an agreement between two parties that suits relating to disputes arising between them would be instituted only in one out of several competent Courts having territorial jurisdiction is not hit by section 28 of the Contract Act." ,.
It is settled law that where two Courts have jurisdiction to take cognizance of the matter under the ordinary law, an agreement that disputes will be tried by one Court only is valid and does not contrary to section 28 of the Contract Act. It is also equally plain that if Court of one place do not have jurisdiction under the ordinary law, a provision in a contract that such a Court alone shall have jurisdiction is void because jurisdiction cannot be conferred by the consent of parties as law laid down in Messrs Gamman India Ltd. v. Hakam Singh (AIR 1967 AWR 380). It is also settled law that Court may exercise its discretion to avoid injustice or inequity. In the light of the aforesaid precedents aforesaid clause of the agreement contain the word "May" which as mentioned above directory in nature and does not contain express exclusive bar of Civil Court at Lahore, therefore, impugned order is valid in the eye of law. It is also settled principle of law that revisional jurisdiction is a discretionary in character as the law laid down by the Honourable Supreme Court in (2000 SCMR). It is also settled principle of law that it is condition precedent to secure a discretionary relief; party must approach the Court with clean hands. The learned Trial Court has rightly observed that petitioner has not approached L the Court with clean hands, therefore, I am not inclined to exercise my discretion in fivour of the petitioner as the law laid down by the Honourable Supreme Court in Nawab Syed Raunaq Ali's case (PLD 1973 G SC 236). It is also admitted fact in the present case that the award has been filed by the arbitrator, therefore, petitioner is debarred to take the objection of territorial jurisdiction in view of section 31. The making of the award is the end of the arbitration proceedings, therefore, M subsequent following proceedings in question are governed by section 31(1), (2), (3) and (4):--
(i) Filing of the award;
(ii) making it a Rule of the Court.
It is settled law that the question whether the Court has jurisdiction over the matter be decided in accordance with the general provisions in the C.P,C. As law laid down by the superior Courts in the following judgments:-- Muhammad Yasin v. Muhammad Farooq (1989 MLD 2010), Yashwant Rao Ganpat Rao Vipat and others v. Dattarttraya Ramchandra Rao Vipat (AIR 1940 Nagpur 191), Muhammad .Hanif v. The Administrator, Thal Development (1989 MLD 2775), Badha Kishen v. Bombay Company Ltd (AIR 1943 Lahore 295) and Cursetji Jamshadji Aradaseer Wadia and others v. Dr. R.D. Shiralee (AIR 1943 Bombay 32).
It is also settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts and every judgment must be read. As applicable to the peculiar facts proved or assumed to be proved, as per law laid down by the Honourable Supreme Court in "Trustee Board of Karachi's case" (1994 SCMR 2213). The judgments cited by the learned counsel of the petitioner are distinguished on facts and law in view of the aforesaid discussion. In view of what has been discussed above, the petition has no merit and the same is dismissed.