' This writ petition arises out of facts ' of case that Mst. Naseem Aklitar filed an application before the Civil Court under sections 14 and 17 of the Arbitration Act against Pit Bakhsh and Faqir Muhammad for making the Award of Arbitration dated 1-12-1985 as a rule of Court alleging therein that suit property detail of which had been described in the headnote of the plaint was owned and possessed by Pir Bakhsh, who had sold the same in her favour and also delivered possession to her. She further alleged that a dispute had arisen between her and Pir Bakhsh and Faqir Muhammad was appointed as a sole arbitrator and undertaken that his decision would be acceptable to the parties. Faqir Muhammad respondent No,2 in the application decided the matter between the parties vide, an 'arbitration award' dated .1-12-1985. The learned trial Court vide its judgment dated 2-12-1985 passed the decree and made the 'award' as rule of the Court.
2.. Mst. Hashmat Bibi respondent No,1 filed an application under section 12(2), C.P.C. For setting aside the judgment and decree dated 2-12-1985 as well as the award which was contested by present petitioner and from the pleadings of the parties the Civil Court led to frame the following issues:--
(1) Whether the impugned decree has been obtained through fraud and collusion and misrepresentation? OPP
(2) Whether the petitioner has no cause of action or locus standi? OPP
(3) Whether 'petition is not maintainable in the present form? OPD
(4) Whether the petitioners are estopped to file the petition? OPD
(5) Whether petition is batred by time? OPR
(6) Whether petition is defective for non-joinder of necessary parties? If so, its effect? OPR
(7) Relief.
3. After recording and appreciating evidence of the parties, vide its judgment, the trial Court dismissed the application filed by the petitioner under section 12(2), C.P.C.
4. Feeling aggrieved thereby Mst. Hashmat Bibi and others preferred a revision petition which came up for hearing before the Additional District Judge, Sargodha, who vide, his judgment and decree dated 19-5,1997 accepted the appeal and remanded the case to the trial Court. After remand the learned Civil Judge, Sargodba/trial Court vide, his order dated .14-10-1997' dismissed- the petition once again. Feeling aggrieved thereby Mst.' Hashmat Bibi petitioner preferrell a revision petition before the Additional District Judge, Sargodha, who vide, his judgment and decree dated 11-12-1999 accepted the 'revision petition, set aside the judgment of the trial Court and also accepted the application under section 12(2), C.P.C. As a result of which set aside the judgment and decree dated 2-12-1985 passed by the Court making the award dated 1-12-1985 as a rule of the Court.
5. Learned counsel for the petitioner contended that the award under Arbitration Act cannot be challenged under section 12(2), C.P.C. And the vires of the same can be assailed under sections 30 and 33 of the Arbitration Act. Further contended thal Pir Bakhsh, a party of award and judgment and decree dated 2-12-1985 during his lifetime did not challenge the same and respondent No,1 and other heirs of the deceased were not competent to get it set aside through the application under section 12(2), C.P.C. Further contended that the provisions of C.P.C. Are excluded and not applicable. To the Arbitration proceedings before the Court. Reliance has been placed to the case of Messrs Combined Enterprises v. Water and Power Development Authority, Lahore PLD 1988 Supreme Court 39. The learned counsel for the respondents when confronted with the above legal aspect of the case, could not respond.
6. The appreciation under sections 14/17 of the Arbitration Act had been filed by Mst. Naseem Akhtar against Pir Bakhsh and Faqir Muhammad on 1-12-1985. Pir Bakhsh filed a consenting written statement in the Court on 2-12-1985 and also his statement was recorded by the Court on the same day which is reproduced as under:-- {{URDU TEXT}} ' The above statement was thumb-marked by Pir Bakhsh and also signed by his counsel. The statement of Faqir Muhammad, Arbitrator had also been recorded, who admitted the 'award' announced by him (Exh.C.2) and on the basis of above-ieferred material the Court had made the award, as rule of Court and passed a decree in favour of Mst. Naseem Akhtar.
7. Pir Bakhsh, party of the award, did not file any application after the decree and after his death Mst. Zaineb Bibi and Mst. Hashmat Bibi filed applications under section 12(2), C.P.C. For setting aside the decree. From the contents of the application filed by Mst. Hashmat Bibi no case under section 12(2), C.P.C. Is constituted and the ingredients of the fraud and misrepresentation are missing in the application.
8. Where 'award' was obtained by fraud or misrepresentation parties affected thereby could challenge the same either by an application under section 30 or 33 of the Arbitration Act, 1940 and application under A section 12(2), C.P.C. Would not be maintainable to challenge such award.
Reference in this context can be placed to the cases of Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 Supreme Court 197 and Messers Combined Enterprises (supra).
9. The above discussed legal aspect of the case has not been attended to by the learned lower revisional Court/respondent No,5 who exceeded the jurisdiction so vested in it. Therefore, the impugned judgment dated 11-12-1999 passed by respondent No,5-Additional District Judge is declared to have been passed illegally and of no legal effect. As a result of which this writ petition is accepted. However, there shall be no orders as to costs. The respondents may avail of the alternate remedy available to them under the law.