Sh. SALEEM ALI vs Sh. AKHTAR ALI and 7 others

MUHAMMAD GHANI, J.---This appeal filed by Sh. Saleem Ali is directed against the decision, dated the 15th of January, 1997 rendered by a learned Single Judge of this Court whereby an application registered as C.O. No,2 of 1986 filed on the 20th of November, 1985 by Sh. Akhtar Ali, respondent No,1 seeking direction as envisaged by subsection (2) of section 14 of the Arbitration Act 1940 against Chief Justice (Retired) Khan Bashiruddin Ahmad and Maulvi Mushtaq Hussain to file in Court an Award pronounced by them on the 11th of November, 1985, for being made a rule of the Court, and another application filed on the 7th of December, 1985 under sections 17 and 18 of the Arbitration Act by Sh. Shuakat Ali, a former Judge of this Court, respondent No,5 (now represented by his widow Chirista Ali and two daughters namely, Saima Ali and Asma Ali) for making as rule of the Court the said Award, were rejected, whereas objections filed on the 19th (the correct date is 20th) of January, 1986 to the validity of the said Award, as well as an application, dated the 4th of May, 1986 filed by Sh. Murtaza Ali, respondent No,2 under sections 33 and 35 of the Arbitration Act assailing legality of the same on the ground of having been pronounced during the pendency of a suit for administration, through partition, filed by him, were accepted, and as a consequence thereof the entire proceedings conducted by the said two learned Arbitrators and the resultant Awards were scrapped and declared to be void, allowing the suit by Sh. Murtaza Ali to proceed in accordance with law, subject, of course, to the following inhibition:- "Through order dated 13-1-1990 the compromise entered between Sh. Saleem Ali,. Sh. Akhtar Ali and Sh. Shaukat Ali in respect of their rights in the companies and properties mentioned in paragraphs 25 and 26 of the award was accepted and it was made clear that in case ultimately the proceedings are restored Sh. Saleem Ali and Sh. Akhtar Ali who had taken over the interest of Sh.

Shaukat Ali in the said companies would step into the shoes of Sh. Shaukat Ali and in case Sh.

Shaukat Ali is found to be not entitled to or any of the rights taken by the others in the proceedings they shall get the same subject to the said decision, therefore, for the purpose of further proceedings in the suit Sh. Akhtar Ali and Sh. Saleem Ali may defend the rights of Sh. Shaukat Ali to maintain with them whatever they got from Sh. Shaukat Ali through the said compromise and if Sh.

Shaukat Ali is found to be not entitled to all or any of them they would not claim any right on the basis of the said order against the others but may pursue further remedy against such determination in accordance with law. There will be no order as to costs."

2. The parties to this litigation are offspring of one Sh. Ghulam Mustafa, who originally hailed from Jalapur Jattan, a town of Gujrat District; had been an Honourary Magistrate at Lahore; had business undertakings of manufacture of Oil Expellers and Oil Engines at Brandreth Road, Lahore, Re-rolling of steel at Karachi, and, being in affluent circumstances, enjoyed the luxury of having more wives than one, the first in point of time being Mst. Ghulam Fatima who produced two sons named Muhammad Nawaz and Muhammad Riaz, both of them having died since long have left behind even no troubles of this transitory life; she was followed by Mst. Sardar Begum who gave birth to four sons by the names of Sh. Akhtar Ali, (respondent No,1) Sh.Shaukat Ali (respondent No,5), Sh. Saleem Ali (appellant) and Sh. Murtaza Ali (respondent No,2 herein), besides two daughters Mst.

Razia Begum and Mst. Ijaz Amanullah, whereas his last known wife was Mst. Taj Begum, predecessor-in-interest of Sh. Mumtaz Ali and Mst. MazharKhanum, respondents 6 and 8, respectively. The business undertakings, immovable properties and liquid assets gave rise to disputes between his progeny. Stripped off unnecessary details, the disputes between the parties having been referred to the two learned Arbitrators, named above, the same were resolved by means of the afore-mentioned Award, date the 11th of November 1985, though as per Sh. Ghulam Murtaza, there was no valid reference. Be that as it may, on the 20th of November, 1985, Sh. Akhtar Ali filed an application under section 14(2) of the Arbitration Act 1940, in the Court of the learned Senior Civil Judge, Lahore, with the prayer that the two learned Arbitrators be asked to file the Award dated the 11th of November, 1985 so that the same was made rule of the Court. The learned Arbitrators filed the Award in Court through .Syed Muzammil Ali Akram, Advocate, on the 22nd of December, 1985. On the 7th of December, 1985, Sh. Shaukat Ali filed an application under sections 17 and 18 with the prayer that in case the Award was objected to, itsparts vis-a-vis Sh. Akhtar Ali and Sh. Saleem Ali be made a rule of Court and decree passed accordingly. Sh. Saleem Ali (appellant) filed on the 18th of January, 1986, an application seeking modification of the Award in certain aspects, whereas objections were filed on the 13th of January, 1986 by Mst. Muzhar Khanum (respondent No,8), on the 18th of January, 1986 by Mr. Javed Shafi and Mrs. Razia Shafi (respondents 3 and 4) and on the 19th of January, 1986 by Sh. Murtaza Ali (respondent No,2) for setting aside the Award. As mentioned above, the learned Single Judge, while rejecting the application of Sh. Akhtar Ali, accepted Objections of Sh. Murtaza Ali and passed the impugned order, dated the 15th of January, 1997. Hence this Intra-Court Appeal by Sh. Saleem Ali.

3. We have heard the learned counsel for the parties and have perused the record.

4. At the outset, Sh. Murtaza Ali, respondent No,2 raised objection to the maintainability of this Intra- Court Appeal by submitting that the same having been filed, as it 'is "under section 3(1) of the Law Reforms Amendment Act 1972 (Act No,VIII of 1972)" is incompetent. His precise argument is that an Intra-Court Appeal is competent only if a decree is passed or a final order is made by a learned Single Judge of this Court in the exercise of "original civil jurisdiction". According to him, the impugned order, dated the 15th of January, 1997 was passed under the provisions of the Arbitration Act, and an appeal against an order setting aside an Award is competent under section 39(1)(vi) of the Arbitration Act. It is not denied that the application under section 14(2) was originally filed in the Court of the learned Senior Civil Judge, Lahore, but was transferred to the original side of this Court.

Proceedings commenced on an application under section 14(2) are in the nature of civil proceedings, and by virtue of section 41 of the Arbitration Act, the provisions of the Code of the Civil Procedure 1908 have been made applicable to not only to the proceedings before the Court, but also to appeals under the said Act. Therefore, upon transfer of the application under section 14 (2), as aforementioned, the learned Single Judge of this Court while dealing with the matters, exercised "civil original jurisdiction". Section 3 (1) of the Law Reforms Ordinance (No,XII) of the 1972, as amended by Law Reforms (Amendment) Act (No,VIII) of 1972 reads as follows:-- "3. Appeal to High Court in certain cases.--(1) An appeal shall lie to a Bench of two or more Judges, of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction."

Upon plain reading of afore-quoted section 3(1), we are clearly of the view that the learned Single Judge passed the impugned order, dated the 15th of January, 1997 in the exercise of his original civil jurisdiction and, therefore, this Intra Court appeal, being otherwise not barred by subsections

(2) and (3) of section 3 ibid is competent. Even otherwise, vide the impugned order, dated the 15th of January, 1997, the learned Single Judge had set aside the Award, dated the 1 1 th of November, 1985, and appeal is competent under section 39 (1) (vi) of the Arbitration Act, 1940. It is settled law that a party cannot be non-suited on the ground that the provision of law under which the proceedings have been instituted has been inadvertently misquoted. The preliminary objection is, therefore, not tenable and is overruled.

5. In view of the diverse nature of the pleas of the parties, the learned Single Judge had framed the following Issues on the 19th of November 1986:-

(1) Whether the award under agreement dated 24th May, 1984, as filed is hit by the provisions of section 35 of the Arbitration Act? OPR 1-3.

(2) Whether there is validly executed arbitration agreement between the parties? OP applicant.

(3) Whether the arbitration agreement dated 24th May, 1984 is not a valid agreement? OPR 1-3.

(4) What is the effect of the participation of respondent No,1 and others in the very proceedings of arbitration? OPR 1-3.

(5) Whether the arbitrators have misconducted themselves during the preceding and in making the award? OPR 1-3.

(6) Whether the award has been given beyond the prescribed time? OPR 1-3.

(7) What is the status of respondent No,4 under the arbitration agreement dated 24th May, 1984?

OPR-4.

(8) What is the impact of the award given by respondent No,4 on the next arbitration by the Chief Justice (Rtd.) Khan Bashiruddin Ahmad and the Chief Justice (Rtd.) Maulvi Mushtaq Hussain? OPR 1-3.

(9) Whether the proceedings held by the Chief Justice (Rtd.) Khan Bashiruddin Ahmad and the Chief Justice (Rtd.) Maulvi Mushtaq Hussain are de novo proceedings pursuant to the agreement dated 24th May, 1984? OP Applicant.

(10) Whether the award as made suffers from patent illegalities which have the effect of vitiating the award? OPR 1-3.

(11) Whether the documents tendered in evidence by respondent No,1 have not been brought on to the record and whether the same have been returned to respondent No,5 without exhibiting? OPR 1-3.

(12) Whether the arbitrators have acted beyond the reference? If so, what is its effect? OPR 1-3.

(13) Whether the arbitrators have misdirected themselves as to the property in dispute, the very subject-matter of the reference? OPR 1-3.

(14) Whether the award has been improperly procured? OPR 1-3.

(15) Whether the award as it is, is opposed to the natural justice?.

(16) Whether the arbitrators have acted in excess of their power under the reference, qua 250 shares belonging to respondent No,5 in Vulcan Arms Company Ltd. By giving the same to the applicant? OPR 5.

(17) Whether the arbitrators are competent to award interest on the sum to be given to respondent No,4? OPR 5.

(18) Whether there have been Arithmetical errors in the award in working out the accounts? OPR 4.

(19) Whether the arbitrators have acted in excess of their power by transferring the shares of respondent No,1 in the Vulcan Arms Company Ltd. Ally Brothers and Capital Flour Mill to the applicant and respondent No,5? OPR 1.

(20) Whether the part of the award which is not being contested by the parties can be made as a Rule of the Court in case the parts of the award under contest are otherwise decided as not valid?

OPR 4-7.

(21) Relief. The learned Judge has not dealt with each Issue separately. However, after recording some evidence and hearing learned counsel for the parties, the Award was set aside vide impugned decision, dated the 15th of January, 1997, and the reasons for the said decision took the following form:--

(a) That "there was no concluded and valid arbitration agreement executed by and binding on all the parties, interested in the disputes for referring the matter to Mr. Justice (Retd.) Bashiruddin Ahmad and Mr. Justice (Retd.) Maulvi Mushtaq Hussain, as such, all the arbitration proceedings initiated by the said two Arbitrators were nullity in the eye of law and as a consequence thereof the Award delivered by them on the 11th of November, 1985 is also void ab initio and of no legal effect".

(b) That "no arbitration in the matter could take place after 16-1-1985 when Sh. Murtaza Ali, respondent No,1 filed a suit for administration of partition of the properties in which the application made by Sh. Saleem Ali under section 34 of the Arbitration Act, for stay of proceedings had been rejected as under section 21 of the Arbitration Act, no reference could be made for arbitration in respect of any matter which was subject-matter of a civil suit except through Court in which the same was pending, therefore, the arbitration proceedings after 16-1-1985 were also void".

(c) That the learned Arbitrators were guilty of "misconduct" inasmuch as before their formal appointment as Arbitrators, they had been issuing directions to the Mediator regarding four matters mentioned in the Note of Sh. Shaukat Ali, dated the 14th of May, 1984 to proceed in a particular manner and.

(d). "That Mr. Justice (Retd.) Mushtaq Hussain sold his property to Sh. Akhtar Ali one of the contesting parties in the dispute" which, in the opinion of the learned Judge, recoiled adversely on the impartiality of the said learned Arbitrator, and amounted to "misconduct" as "none of the arbitrators could act in that manner as they were required to decide the disputes between the parties impartially which should have been maintained up to the date of delivery of the award".

6. So far as the first reason for setting aside the Award is concerned, the grounds which can be spelt out from a rather lengthy discussion, spread over about 20 pages, may be summarized as follows:-

(a) Though according to the parties, except Sh. Murtaza Ali whowas respondent No,1 before the learned Single Judge, the arbitration agreement was allegedly executed on the 24th of May, 1984, but in paragraph 9 of the Award the learned Arbitrators had relied upon arbitration agreement, dated the 25th of May, 1984.

(b) The agreement appended with the Award was not a formal agreement but merely a Memorandum of the discussion held in a meeting attended by the learned Arbitrators, besides the parties; that this document revealed that the parties had agreed that the learned Arbitrators should give their award concerning 33 items of dispute tabulated therein, and that in the event of disagreement between the learned Arbitrators, the matter was to be referred to Chief Justice (Recd.) Anwarul Hag as Umpire; that the meeting dispersed with the understanding that formal arbitration agreement would be signed on the next day; that. On the next day, viz. The 14th of May, 1984, instead of executing a formal arbitration agreement, the parties assented to the arrangement that instead of referring all the disputes straightaway to the two proposed Arbitrators, 33 items of dispute should first be gone into by former Justice Shaukat All as a mediator, who even otherwise was a member of the family and a party to the dispute, and that if the parties did not accept his mediation, then that matter only be referred to the _decision of the Arbitrators.

(c) On the unstamped Memorandum, Sh. Saleem Ali and Sh. Akhtar Ali put their signatures at the end of item No,4 on the 25th of May, 1984 whereas under the remaining items Nos. 5 and 6, Sh.Shaukat Ali put his signatures as mediator/Arbitrator, and signatures of Mr. Murtaza Ali, Sh.

Mumtaz Ali and Mr. Javed All are also present; that under the signatures of Sh. Laved Ali, the date indicated is "1-6-1984"; that at the end of the document, there are signatures of Sh. Akhtar Ali but without any date; that on a bare perusal of the document, it is apparent that so far as Sh. Akhtar All and Sh. Saleem All are concerned, they had agreed to the mediation/arbitration of Sh. Shaukat All only in respect of the four items, below which they had put their signatures on the 25th of May, 1984 whereas Mr. Murtaza Ali. Sh. Mumtaz Ali and Sh. Javed Ali signed this document on the 1st of June, 1984; that Mrs. Ejaz Amanullah, though shown as party through Mr. Sohail Akhtar, but the document contained. Neither the signatures of Mrs. Ejaz Amanullah nor of Mr. Sohail Akhtar, and since the document was admitted, in the evidence on the 10th of May, 1985, it clearly meant that Sh. Saleem All and Mr. Javed Ali were made to put their signatures on the same on the said date viz. The 10th of May, 1985.

(d) In the statements of Sh. Murtaza Ali, Sh. Saleem All and Sh.Akhtar All recorded by the learned Arbitrators on the 25th of May, 1984, all the three had clarified that they had agreed to the mediation of Sh. Shaukat Ali only in respect of items Nos. 1 to 4.

(e) The afore-mentioned statements, were wrongly taken by the learned Arbitrators to be an arbitration agreement on the basis of which they initiated proceedings and delivered the impugned Award, dated the 11th of November, 1985.

(f) The agreement wherein 34 items of dispute between the parties were mentioned, appeared to have been prepared pursuant to the meeting held on the 13th of the May, 1984 which decision was modified in the next day's (14th May, 1984) meeting to the extent that the parties would first get the decision from Sh.Shaukat All as a Mediator, and that as clarified in the statements of 25th of May, 1984, the mediation was restricted only to first four items mentioned in the Memorandum.

(g) As per Sh. Shaukat Ali's Letter, dated the 6th of April, 1985 (C.Ws.3/5) an arbitration agreement was drawn up and was signed by Sh. Saleem Ali, but the agreement dated the 24th of May, 1984 did not bear signatures of Sh.Saleem All as well as of Mst. Razia Shafi Beg and Mr. Ljaz Amanullah, the latter being out of country.

(h) Pursuant to the stamped agreement, dated the 26th of May, 1984, bearing signatures of Sh.

Saleem Ali, Sh. Akhtar Ali, Mr.Mumtaz Ali and Javed Ali, but not of Sh. Murtaza Ali, Mst.Razia Shafi, Beg and Mrs. Ijaz Amanullah, Sh. Shaukat All proceeded in the matter as a Mediator and delivered his decision/award, dated the 12th of June, 1984 which having been challenged by Sh. Saleem All and Sh. Akhtar All before the learned Arbitrators, an order was passed on the 31st of January 1985 by Chief Justice (Retd.) Khan Bashiruddin Ahmad adjourning the proceedings sine die on the ground that he had become functus officio.

(i) In his letter, dated 28th of June, 1984 (C.W.4/2), Sh. Akhtar Ali had taken up a specific stand that through agreement, dated the 26th of June, 1984, all previous arrangements, and the agreement, dated the 24th of May, 1984 had been superseded,but no such agreement, dated 26th of June, 1984 was in existence.

(k) The agreement, dated the 24th of May, 1984 lost its efficacy and was nullified by the subsequent agreement, dated the 26th of May, 1984, which position was accepted by Sh. Shaukat Ali in his letters, dated the 6th of April, 1985 (C.Ws.3/5) and the 28th of June, 1984 (C.W.4/2).

(m) The agreement, dated the 26th of May, 1984 was not executed by Sh. Murtaza Ali "as he did not put his signatures on it on the 25th of May, 1984" and that in his statement (Annex 'B') he had clarified that he had only consented to the mediation of Sh.Shaukat Ali and that too in regard to only items 1 to 4 and not about others; that if any of the parties was dissatisfied with the decision of the said mediator about any of the four items of dispute, the learned Arbitrators were to be approached through a formal reference/agreement duly signed by all the parties, with regard thereto, and that the jurisdiction of the learned Arbitrators could not extend to any other item.

(n) Even if there was some sort of arbitration agreement in respect of some of the matters, i,e, four items, the same was not tantamount to bringing about a valid and concluded arbitration agreement between all the parties about any dispute as all of them had not signed, and those who signed the same were laboring under acute misconception and confusion as to its true nature and scope.

7. In clause (a) of section 2 of the Arbitration Act 1940 "arbitration agreement" has been defined to mean "a written agreement to submit present or future differences to arbitration, whether an Arbitrator is named therein or not". While interpreting the said definition of arbitration agreement, it was held in Abdul Aziz Cotton Ginning Factory v. Ali Muhammad Abdullah & Co. (PLD 1966 (W.P.)

Karachi 197) that "any writing or writings attributable to the parties which-, unmistakably prove their intention to refer their disputes to arbitration are satisfactory in terms of the provisions of law".

It was further held that even the signatures of the parties on such writings are not necessary. Again in Province of Punjab and another v. Messrs Industrial Machine Pool, Lahore (PLD 1978 Lahore 829) it was observed as follows:-- "Though the Act requires the agreement to be in writing, it does not require that it should be contained in a formal document. It may be in any form attributable to the parties in accordance withlaw. It may be by correspondence between the parties or by a statement made by their counsel and recorded by the Court " In Shamim Akhtar v. Najma Baqai (PLD 1977 SC 644), there was no bilateral instrument executed inter se the parties for appointment of Arbitrators named by the parties and reference of the dispute to their arbitration. There was, however, exchange of correspondence between the parties.

Their lordships of the Supreme Court held that the "letters unilaterally written by the respective parties addressed to the Martial Law Authorities read together constituted a valid "arbitration agreement" within the meanings of section 2(a) of the Arbitration Act, 1940 for the purpose of the reference of the dispute to the arbitration of the two arbitrators appointed by them." In Muhammad Hussain v. Ghualm Rasool (1983 SCM R 231), by agreement of the counsel of the parties expressed in the order of the Court an Arbitrator was appointed to decide the controversial question of title and possession. The contention that there being no valid agreement between the parties was repelled by their lordships of the Supreme Court by observing as follows:-- "We find that the counsel representing the parties had agreed to the reference of the dispute to arbitration. Their statement was recorded by the Court and given effect to. It has not been shown that the learned counsel representing the parties particularly the petitioners were in any way incompetent in the matter of making such a statement or referring the matter to arbitration. The requirements of law were substantially satisfied." The same question arose in Messrs Tribal Friends Co. v. Province of Balochistan (2002 SCM R 1903), where none of the parties had filed the contract before the trial Court and only a photostatic copy was filed by the respondent in the High Court with its revision application, which too did not contain all the pages. Further in reply to the appellant's application, the respondent admitted that the contract contained arbitration clause but no Arbitrator was named therein. On yet another application made by the applicant for submission of dispute, the concerned Minister had nominated the sole Arbitrator to decide all disputes between the parties. On the basis of the afore- mentioned documents, their Lordships of the Supreme Court held that an-arbitration agreement could be spelt out from the said documents. By referring to the decisions hereinbefore mentioned, it was authoritatively laid down as follows:- An Arbitration Agreement should be in writing and need not to be signed by both the parties. If the intention to refer the dispute to the Arbitration is manifest from the documents it amounts to an Arbitration Agreement...." The parties had thus agreed to refer the dispute to the Arbitrator whose authority was never challenged and the respondents participated in the proceeding without any objection. The respondent, therefore, cannot challenge the validity or existence of the Arbitration Agreement" From above, it is thus clear that the Arbitration Agreement need not necessarily be incorporated in a formal document, it can be by incorporating a clause in a contract. An arbitration agreement may be spelt out from correspondence or letters exchanged between the parties or on the basis of their statements, or even those of their counsel. Such an agreement need not be signed by the parties.

8. It is now to be seen whether in the instant case there was an arbitration agreement within the parameters laid down in the aforementioned authorities. Needless to mention that except Sh.

Murtaza Ali, respondent No,2, none of the other parties had challenged the authority of the learned Arbitrators to arbitrate. In paragraph 1 of the Note, dated the 14th of May, 1984 prepared by Sh.

Shaukat Ali, Mediator/Arbitrator, which indisputably bears the signatures of Sh. Murtaza Ali it was mentioned as follows:-- "A meeting was held on the 13th of May, 1984, at 14-White House Lane, at 6 p.m. Which was attended by (Retd.) Chief Justice Bashiruddin Ahmed, Retired Chief Justice Mushtaq Hussain, and Sheikh Akhtar Ali, Sheikh Saleem Ali, Sheikh Shaukat Ali, Sheikh Mumtaz Ali, Sheikh Murtaza Ali and Sheikh Sohail Akhtar on behalf of Ejaz Amanullah. In that meeting the disputes between the parties were tabulated which are 33 in number. On that day, it was agreed between the parties that the two Arbitrators, namely Mr.Justice (Retd.) Bashiruddin Ahmed and Mr.Justice (Retd.) Mushtaq Hussain, will go into the disputes and will give their award. In case of disagreement between the two Arbitrators, it was agreed that the matter would be referred to Sheikh Anwarul Haq, Retired Chief Justice of the Supreme Court of Pakistan as Umpire. With that understanding, the meeting dispersed and the agreement for arbitration was to be signed on the next day." From the afore-quoted portion of the Note duly signed by Sh. Murtaza Ali, it is indubitably clear that in the meeting held on the 13th of May, 1984, it was at least verbally agreed between the parties to refer their thirty-three disputes to the arbitration of Chief Justice (Retd.) Khan Bashirddin Ahmad and Chief Justice (Retd.)Maulvi Mushtaq Hussain and in the event of disagreement amongst them, Chief Justice (Retd.) S.Anwarul Haq was to be the Umpire. Formal arbitration agreement was to be signed on the next following day. But when the parties exceptSh.Saleein Ali, again got together on the 14th of May, 1984, they decided that instead of directly referring the disputes to the said nominated learned Arbitrators, the matters in dispute should first be gone into as a Mediator by Sh.

Shaukat Ali, a former Judge of this Court, and a real brother of Sh. Murtaza Ali, and in case the parties did not accept his mediation, only then the matter be referred to the decision of the learned Arbitrators. It is also mentioned in the said Note that with the advice of the learned Arbitrators, the Mediator had taken up all the disputes for resolving the same amongst the parties. The "decisions" taken by the learned arbitrators on the 14th of May, 1984 and to be implemented by the Mediator were also reflected in the said Note. Once again, in the statement of Sh. Murtaza Ali which had been recorded by Sh. Shaukat Ali on the 25th of May, 1984, bearing the signatures of Sh. Murtaza Ali it is inter alia stated that the Note, dated the 14th of May, 1984 had been prepared by Sh. Shaukat Ali with the consultation of the above-named two learned Arbitrators; that the deponent (Sh. Murtaza Ali) was prepared to surrender himself to items 1 to 4 [should be (i) to (iv)] which should be gone into by Sh. Shaukat Ali as Mediator/Arbitrator, and he also undertook not to challenge his decision in any Court of law, except before the two learned Arbitrators whose decision/award, if unanimous, was to operate as final, but in the event of the two Arbitrators being at variance, the final decision was to be that of Chief Justice (Retd.) S.Anwarul Haq, in his capacity as Umpire. Then, the Agreement bearing the date as "24th day of May, 1984" appointing Sh. Shaukat Ali as "Arbitrator" also bears signatures of Sh. Murtaza Ali. In the said Agreement, it was again reiterated by the parties that whereas the decision to be rendered by Sh. Shaukat Ali was to be final, in case any of the parties to the dispute had any grievance to make against his award, "the matter shall be referred to Chief Justice (Retd.) Bashiruddin Ahmed and Chief Justice (Retd.) Maulvi Mushtaq Hussain for their final decision and award and their decision shall prevail and it shall not be challenged in any Court of law or through any procedure whatsoever".

9. There is yet another Agreement, dated the 26th of May 1984, wherein while reiterating the appointment of Sh. Shaukat Ali as "Arbitrator" it was mentioned that in case any of the parties to the dispute had any grievance to make against his award, the matter shall be referred to the Chief Justice (Retd.) Khan Bashiruddin Ahmed and Chief Justice (Retd.) Maulvi Mushtaq Hussain and in case they failed to arrive at a unanimous decision, the matter shall be referred for final judgment and decision by Chief Justice (Retd.) S. Anwarul Haq. It was further mentioned that the Arbitration Agreement shall extend to all the properties, i,e, business, houses, Industrial concerns, cash and Bank accounts owned in the name of six business undertakings mentionedtherein. The arbitrator was conferred all-pervading power, i,e,, to determine the matters right 'from formation of the Companies onwards. The said Agreement bears signatures of Sh. Saleem Ali, Sh. Akhtar Ali, Sh.

Shaukat Ali, Sh. Mumtaz Ali and Mr. Javed Ali. It, however, does not bear signatures of Sh. Murtaza Ali, Mrs. Ijaz Amanullah and Mrs.Razia Shafi. It is common ground between the parties that Sh.

Shaukat Ali, after recording some evidence of the parties, gave his decision on the 12th of June, 1984 which was not accepted by the parties. Consequently, the matter was taken up by the learned Arbitrators who entered upon the reference with effect from the 15th of April, 1985 and notices were issued to the parties for the 22nd of May, 1985, as is apparent from the proceedings of arbitration.

When the matter next came up before one of the learned Arbitrators (Chief Justice (Retd.)

Bashiruddin Ahmad, the other learned Arbitrator was not able to participate in the proceedings on that day) on the 2nd of May, 1985. Sh. Murtaza Ali entered appearance and presented a copy of the plaint in his suit for administration, through partition of the properties filed by him in the Civil Court at Lahore, which was ordered to be placed on the record. In the proceedings of the 2nd of May, 1985, it was further recorded inter alia as follows:-- "He (Sh. Murtaza Ali) has urged that a fresh award may be made in respect of each item of dispute separately. He has been asked to clarify his position and place his view-point in writing within this week. He has agreed to do so."

' On the next date of hearing, viz. 10th of May, 1985, Sh. Murtaza Ali again appeared before the learned Arbitrators. It is in the proceedings of the said date that the learned Arbitrators observed in the following terms:-- "This arbitration is being proceeded with in pursuance of the arbitration agreement dated 24th May, 1984, which has been marked as Exh. "A" and initialed by one of the arbitrators today." As mentioned earlier, in the Arbitration Agreement, dated the 24th of May, 1984 while appointing Sh. Shaukat Ali as Arbitrator, the parties, including Sh. Murtaza Ali, had unequivocally agreed that if any of the parties to the dispute had any grievance to make against the award of Sh.Shaukat Ali, "the matter shall be referred to Chief Justice (Retd.) Bashiruddin Ahmad and Chief Justice (Retd.)Mushtaq Hussain for theirfinal decision and award ". It was in this context, that the learned Arbitrators observed that the source of their authority emanated from the .Arbitration Agreement, dated the 24th of May, 1984. Needless to mention, at this stage, that die objection of Sh. Murtaza Ali before thelearned Arbitrators on the 10th of May, 1985 was not that they had not been nominated as Arbitrators. His stance, as recorded in the proceedings of that date, took the following form:-- "Mr. Murtaza Ali has submitted a letter addressed to one of us. He has asked for the execution of separate arbitration agreements for each item of dispute. This is a proposition which does not have the support of any law in force in this country. In any case, an arbitration agreement signed by Mr. Murtaza Ali as well is already on the record, and, as indicated above, this arbitration agreement. This letter/application be kept on the record to be dealt with in the end. The submissions made in the various other paragraphs will be taken into consideration at the appropriate time." Sh. Murtaza Ali then filed his Statement of Claim on the 17th of May, 1985 and an Additional Statement of Claim on the 24th of May, 1985. Thereafter, he is shown to have participated in the proceedings of 31st of May, 1985 when Rejoinders to the Claims were filed and Issues were framed.

Sh. Murtaza Ali had also consented, in writing, to the Award, dated the 17th of June, 1985 made by the learned Arbitrators in respect of some of the matters to which the parties volunteered to give their consent. Sh. Murtaza Ali filed on the same day an application for admission and denial of documents by the other parties. He was the first person to be examined on oath and whereas his deposition commenced on the 7th of June, 1985, it was completed on the 19th of June, 1985. His statement is spread over more than sixty pages. He also produced evidence in support of his claim.

Not only that, joint applications, duly singed by the parties, including Sh. Murtaza Ali, for extension of time had been filed from time to time. Record further reveals that Sh. Murtaza Ali had been represented by Mr. Saeed Ansari, Advocate, and he had advanced arguments on numerous dates commencing from 18th of August, 1985, and continuously remained in attendance till the 10th of September, 1985 when the arguments of all the parties concluded. In paragraph 2 (a) of C.M.

No,140-C of 1987 filed, during pendency of proceedings in this Court, to be exact on the 13th of January, 1987, by Sh. Murtaza Ali himself, it was inter alia averred as follows:-- "Vide Memorandum dated 24-5-1984, Mr. Justice (Retd.) Bashiruddin Ahmad and Mr. Justice (Retd.) Mushtaq Hussain were appointed arbitrators to give their Award on 33 tabulated disputes.

In case of disagreement between the arbitrators, (Retd.) Chief Justice Mr. Justice S. Anwarul-Haq was to act as Umpire. The said arbitrators also took certain decisions to be implemented by the so- called mediator Sh. Shaukat Reference has already been made to the Note dated the 14th of May, 1984, and the Arbitration Agreement. Dated the 24th of May, 1984 both bearing signatures of Sh.

Murtaza Ali as well as his own statement, dated the 25th of March, 1984. We are, therefore, clearly of the view that the parties had agreed to refer their disputes to the said two Arbitrators and for the foregoing reasons, we further hold that Sh.Murtaza Ali respondent No,2 being a party to the Arbitration Agreement, dated 24th of May, 1984, and in view of his subsequent conduct as portrayed above could not be allowed to have turned round with volte-face, when the Award went against him, to say that there was no valid agreement and that the Arbitrators lacked jurisdiction to arbitrate.

9-A. There is yet another aspect of the matter. The record conspicuously omits any objection having been raised by or on behalf of Sh. Murtaza Ali, at any time before the learned Arbitrators, to the effect that there was no formal written arbitration agreement and, therefore, the proceedings being conducted by them were coram non judice. All the parties had participated in the proceedings throughout and had filed their Statements of Claims as well as Rejoinders to each other's Claims. The parties were also represented by their learned counsel before the Arbitrators.

They have been filing joint applications before the learned Arbitrators. The proceedings had not revealed that anyone of them had ever objected to arbitration conducted by the learned two Arbitrators. Doubtless, the learned Single Judge has held that "mere participation in the proceedings which were void ab hit for want of valid, concluded and binding arbitration agreement and reference based on that" could not be "equated with such an agreement" but we have already held that there was an arbitration agreement between the parties. It is also clear from the Agreement, dated the 24th of May, 1984 that it pertained to as many as 34 disputed items and was not restricted only to four items, as mentioned in the impugned order. Sh. Murtaza Ali is a law knowing person: He did submit to the jurisdiction of the Arbitrators and allowed them to deal with the matter, taking a chance of the decision being favorable to him. He had acquiesced in the arbitrators proceeding with the arbitration. Having never raised any protest, he waived his right. It is settled law that a party cannot be permitted to lie by and participate in the arbitration proceedings, and if the final determination/award goes against him, he should attack the very authority of the Arbitrators to arbitrate. The story of alleged oral protest cannot be given effect to in the absence of anything on record to show that any such protest was made. In the old case of Matson v. Tower (1824) Ry & Mood 17: 171 ER 927) the award was by an umpire appointed by the arbitrators whohad no authority to appoint an umpire. The award was challenged by one of the parties on the ground that it was made without jurisdiction. The contention was overruled by, inter alia, observing as follows:-- "The parties have recognized the authority of the umpire by submitting to be examined by him, as the matters in dispute." Their lordships thought that having submitted to the jurisdiction of the umpire, none of the parties could have the right to question the award made by him, although the appointment of the umpire might have been without jurisdiction. That was a case of an absolute want of authority in the umpire who had made the award. The principle was very lucidly expressed by the House of Lords in the case of Cairn cross v. Lorimer [(1860) 3 Macq. 827: 7 Jur NS 149] as will be seen from the following observations:-- "The doctrine will apply which is to be found, I believe, in the law of all civilized nations, that if a man either by word or by conduct, as intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces to other to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from his conduct."

"I am of opinion that, generally speaking, if a party has an interest to prevent an act being done and acquiesces in it, so as to induce a reasonable belief That he consents to it and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous licence." In Chowdhri Murtaza Hossein v. Mussammat Bibi Bechunnissa [(1876) 3 Ind App 209] their lordships of the Privy Council are reported at page 220 to have observed that the petitioner "having a clear knowledge of the circumstances on which he might have founded an objection to the arbitrators proceeding to make their award, did submit to the arbitration going on; that he allowed the arbitrators to deal with the case as it stood before them, taking his chance of the decision being more or less favourable to himself and that it is too late for him, after the award has been made, and on the application to file the award, to insist on this objection to the filing of the award" here, from being made a rule of the Court. Similarly, in Donald Campbell & Co. Jeshraj Girdhari Lal (AIR 1920 PC 123) it was held that if a person, knowingly that there was defect in the appointment of an arbitrator, submits to his jurisdiction, he is deemed to have waived the objection. In Abdul Shakur v.

Muhammad Yousaf (AIR 1921 Allahabad 64) the principle of acquiescence was applied to arbitration proceedings. Okland Metal Co. Ltd. v. D. Benian & Co. Ltd. [(1953) 2 Q.B. 261] was a case where the arbitration agreement provided for two arbitrators possessed of certain qualifications one to be nominated by each party, and one of the parties nominated a person who did not possess the requisite qualifications. When the award went against him, he contended that the arbitrator nominated by him was not competent to act as an arbitrator at all, but the contention was repelled on the ground that whether or not his own nominee possessed the requisite qualifications was a matter known to him and not known to his opponent and, therefore, by nominating the person concerned, he had made a representation to his opponent that his nominee did possess the qualifications required. Having made that representation and having induced his opponent to act on its faith, he was estopped from contending, after the award had gone against him, that in fact his nominee did not possess the requisite qualifications. In State of Orissa v M/s Consolidated Construction Company (AIR 1981 Orissa 166) where both the parties participated in deliberations; they jointly applied for extension of time; and no objection at all was raised about want of jurisdiction of the arbitrator, the objection regarding jurisdiction of the arbitrators to arbitrate was not entertained. In Muhammad Rafique v. Qamar Ali (2003 M LD 52) a Division Bench of this Court has held that "a party who submitted to the jurisdiction of an Authority has no right to wriggle out from this position that the authority/Court has no jurisdiction to take the- cognizance on the well-known principle of estoppel and waiver." A representation, in order to attract the rule of estoppel, need not always be a representation of a physical fact, but may as well be the representation of an attitude or a state of mind. As has been pithily observed, the state of a man's mind is as much a matter of fact as the state of his digestion. The general principle that where a Court inherently lacks jurisdiction, mere consent of parties cannot confer the jurisdiction, has no application to arbitration proceedings where the arbitrator is a person appointed by agreement between the parties. The principle of estoppel and acquiescence will be aptly attracted where a party having consented to arbitration by a person and participated in the proceedings before him subsequently attempted to challenge the jurisdiction of the arbitrator. The principle is based on the oft-quoted expression that where a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent. We are, therefore, clearly of the view that since Sh. Murtaza Ali, having full knowledge of the facts, stood by and took his chance of an award in his favour and when it has gone against him, cannot be permitted, in law, to have it set aside on an objection which he never took before the learned Arbitrators. The position would have been different if he had participated in the proceedings under protest which is not the case here.

12. The second ground on the basis of which the learned Single Judge has struck down the Award is that Sh. Murtaza Ali, respondent No, 2 had filed, on the 16th of January, 1985, a suit for administration of properties, through partition, before the Civil Court at Lahore; that Sh.Saleem Ali and Sh. Shaukat Ali had filed application under section 34 of the Arbitration Act for stay of the proceedings on the ground that the matter had been referred to the said two Arbitrators; that the application filed by Sh. Shaukat Ali was not pressed by his legal representatives and the same was dismissed as withdrawn, and that the application filed by Sh. Saleem Ali was rejected by the learned trial Judge vide order, dated the 14th of October, 1992. The finding was obviously based on section 35 of the Arbitration Act, 1940, which reads as follows:-- "35. Effect of legal proceedings on arbitration.--(1) No reference nor award shall be rendered invalid by reason only of the commencement of legal proceedings upon the subject-matter of the reference, but when legal proceedings upon the whole of the subject-matter of the reference have been commenced between all the parties to the reference and a notice thereof has been given to the arbitrators or umpire, all further proceedings in a pending reference shall, unless a stay of proceedings is granted under section 34, be invalid.

(2) In this section the expression "parties to the reference" includes any persons claiming under any of the parties and litigating under the same title."

The prerequisites for application of section 35 of the Arbitration Act are (1) that the whole of the subject-Matter of the reference should also be subject-matter of the suit; (2) that the parties should be the same and (3) that a notice of the filing of the suit has been given to the Arbitrator. If all these prerequisites are fulfilled, further proceedings in a pending reference would be rendered invalid. So far as the instant case is concerned, the subject-matter of the civil suit did not cover all the items of dispute referred to arbitration of the two learned Arbitrators and clearly reflected in the Arbitration Agreement dated the 24th of May 1984, as will be seen from the following statements filed by Dr. Sohail Akthar, Advocate who represents respondent No,1 and legal heirs of respondent No,5:--- Sr.No.Arbitration Agreement (24-5-84) Civil Suit

1. (1) Vulcan Co. Ltd. Vulcan Co. converted into Vulcan Co. Ltd. in 1957.

2. (2) Vulcan Arms Ltd. ----------------

3. (3) Ally Bros. Ltd. (k.i) Ally Brother & Co (Pak.) Ltd., 63., The Mall, Lahore.

4. (4) Saleem Ali.& Co. (k).iv). Sheikh Saleem Ali & Co. Ltd.

5. (5) Piccadilly Cinema Ltd. (Ai). Piccadilly Cinema Ltd.-- Sanction.

6. Capital Flour Mills Ltd. (k-v). Capital Flour Mills Ltd.

7.

1. Ancestral property left by the parents, namely Sh. Ghulam Mustafa and Mst. Sardar Begum should be distributed amongst the legal heirs. The property shall include all property movable and immovable, jewellery and the cash.--------------------------------

8.

2. Property situated at 75-Brandreth Road, Lahore measuringabout 8Mls. comprised of three storeyed building including shops.----------------

9.

3. Property situated in 'Faiz Bagh, Sardar Street, comprising threeshops and a two storeyed building.(b). House No.7-E-IV, Issa Street, Main Bazar, Faiz Bagh, Lahore:

10.

4. Agricultural and urban land measuring about 22 or 22 Kanals near Gau Shale on G.T. Road, Lahore.----------------

11.

5. House situated in Tezab Ihata,Lahore, measuring about 2-1/2Marlas(c). House located in Muhammadi Kucha, Tezab Ihata, Lahore.

12.

6. Land measuring about 25 Kanalsincluding orchard and five house situated in Rounti Mohalla, Jalaldur Jattan, District Gujrat.(c). House in Jalalpur Jattan including a Garden.

13.

7. Evacuee property which was in possession of the family at the time of partition i.e. house at 64-- Brandreth Road, Lahore, which wars allotted and transferred on the name of Mr. Shaukat Ali.(Di) House of Brandreth Road, Lahore in the name of defendant No.2.

14.

8. Plot of land at Brandreth Road,Lahore, comprising one marla (garage) transferred to Mr. Akhtar Ali.(Ci) Garage on back of Brandreth Road, Lahore in name of Defendant No. 1.

15.

9. Plotof land (workshop)measuring 1-1/2 Marlas onBrandreth Road, Lahore transferred to Sheikh Akhter Ali.----------------

16.

10. Vulcan Co. Ltd. and its formation. The name Vulcan Co was given by the deceased father who also left a Factory alongwith this Company. Firstly, it was a Eira thereafter it was converted into a private limited Co. and its shares were allotted to various shareholders, namely, Sh. Akhtar Ali, Sh. Shaukat Ali, Sh.

Murtaza-- Ali and Sh. Mumtaz Ali. The accounts are to be gone into from its inception till the date of the award and the profits and liabilities accrued from this Co. are to be distributed amongst its shareholders. The question of transfer of ,shares, benami or otherwise, is also to be gone into.(j) Vulcan Co. converted inito Vulcan Co. Ltd: in 1957.

17.

11. Formation of Messrs Ally Brothers, allocation of its shares to different shareholders, determination of the persons who are benamidars and otherwise and the accounts profits and liabilities to be gone into from the, date of its inception till the date of the award.(k-i) Ally Brother & Co. (Pak.) Ltd.

63--The Mall, Lahore with balance inKarachi, and Rawalpindi.

18.

12. Formation of Messrs CapitalFlour Mills, allocation of its shares, determinations of shares of shareholders, who are benamidars or genuine shareholders, the accounts assets and liabilities or this Co. to be gone into from the date of its inception till the date of its functioning and the claim which the Capital Flour Mills secured from the Insurance Co. and the litigation which is going on between the Insurance Co. and the Flour Mills alongwith its liabilities.(k-v) Capital Flour Mills Ltd.

19.

13. Formation of Sh. Saleem Ali &Co. determination of its shares,who are genuine or benamidar shareholders, accounts and liabilities of this Co. to be gone into.(z). Shop at SE 9 R 82 Brandreth Road, sold by Sheikh Salim for Rs.10,00,000.

20.

14. Formation of Vulcan Pakistan Co.

Ltd. Rawalpindi which was subsequently liquidated privately and converted into M/s. Ally Bros. Ltd. its assets liabilities, if any.----------------

21.

15. Formation of Vulcan Ice Factory which was liquidated. Its accounts to be gone into.(k.ii) Vulcan Ice Factory.

22.

16. Formation of Metropole Cinema Ltd. at Abbott Road, Lahore.(k.iiii) Metropole Cinema.

23.

17. Piccadilly Cinema Ltd., which I was formed but implemented. It had a sanction for a cinema at 88 Ferozepur Road, Lahore.(Ai). Piccadilly Cinema Ltd.

Sanction.

24.

18. Formation of Vulcan Arms Co., mode of its transfer, how and under what circumstances it was transferred to Sh. Murtaza Ali, determination of its shares and its accounts, profits and liabilities.----------------

25.

19. Urban land measuring 8 or 9 Kanals at Ferozepur Road, Lahore.(1) 88-Ferozepur Road. Lahore, site for Piccadilly Cinema. 9 Kanals.

26.

20. Plots situated in Model Town, Lahore. (p) Plots situated in Model Town, Lahore in the name of son and daughter of defendant No. 1.

27.

21. Agricultural land measuring four squares and commercial land at G.T. Road, Lahore.

Two buildings on that site or Vulcan Ice Factory and Vulcan Co. Ltd., exist on it apart from the building of Capital Flour Mills, situated at a distance of 21 miles from Lahore, on the G.T. Road.(q) Agricultural land measuring four squares and commercial land at 35 Km G.T. Road, near Lahore.

28.

22. House at 13 and 14 Sunder Dass Road, White House Lane Lahore.(s). 13-14, White House Lane, Sunder Dass Road, Lahore.

29.

23. House at 49-T, Gulberg-II, Lahore. (t) House at 49-T, Gulberg-II, Lahore.

30.

24. Bungalow at 101, The Mall, Lahore. (u). Bungalow at 101, The Mall, Lahore.

31.

25. One and a half square of land (agricultural) at village Sundar on Multan Road, Lahore.(v). Agricultural land at village Sundar on Multan Road, Lahore.

32.

26. Four. squares of land at village Maujoki on the name of Mst. Mah Jabeen, wife of Sheikh---------------- Mumtaz Ali.

33. 27. 22 Acres of land on the name of Mst.

Mussarrat Afza, wife of Sh. Akhtar Ali.(w) 22 Acres of land at village Maujoki on the name of Mst.

Mussarat Afza, wife of defendant No. 1.

34.

28. The premises of Ally Brothers Ltd., at Karachi.(x) premises of Ally Brothers Ltd.

Karachi.

35.

29. House at 5 Stanntore Road, Birmingham, England.----------------

36.

30. House situated at 33-L, Gulberg-III, Lahore.----------------

37.

31. Plot of land in the name of Sh. Saleem Ali, at Karachi, Drig Road.(y). Plot of land at Karachi on Drig Road.

38.

32. Shop at Brandreth Road, sold for Rs.7,00,000 by Mr. Saleem Ali

39.

33. Maintenance allowance provided to Mr. Murtaza Ali in London from 1960 to 1980 and the purchase of some car by him out of the funds provided by Vulcan Co. and Ally Brothers.(a). Katti to Muhammad agar comprising of six houses sold by defendants for Rs.35,000.

(d). Agricultural land measuring 52 Kanals in Jia Musa, District Lahore.

(e) Katri and Plots of land in Ambala.

(g) Vulcan Machine Co. stocks sold after-- plaintiff's father:-- (i)

(ii) Messrs Navaindass Rama and Dass and Company, The Mall, Lahore.

(iii) Messrs Mills Stores Co., Brandreth Road, Lahore.

(h) Cash Balance with mother Rs.1,00,000

(i) Income from Agricultural land in Lahore and Gujrat.

Income received up to 1956 Rs.90,000.

(k) Thereafter other companies were created out of the funds from Vulcan, namely:

(iv) Shiekh Salim Ali and Co. Ltd.

(m). Land at Jail Road.

(n). Shares in the name of defendant No.3 in Vulcan Co. Ltd.

40. Car lying at Custom House imported by Mr. Murtaza Ali.(o). Share in the mane of defendant No.3 in-Ally Brothers and Co. (Pak.) Ltd.

(r) Three Buildings at 35 km G.T. Road, Lahore.

(Bi) Plot of land and workshop, Karachi I machinery Store, Standing on SE9R-84, Brandreth Road, Lahore in the name of I' defendant No. 1.

(Ei) Large quantity of gold, jewellery and cash in possession of Defendant No.1 and defendant No.2, No.3, No.7, No. 8, No.9, No.10, No.11, No 12 No. 13, No. 14, No. 15, No. 16 and No.17

(Fi) About 2 crore of rupees transferred in account No. BICC Bank, London-

(Gi) And other hidden movable properties in the name of defendant No. 1 to No. 17. In reply to the above statement, Sh. Murtaza Ali had entered caveat by filing a reply wherein it is inter alia mentioned as follows:-- "There are certain items in the arbitration agreement which are not included in the Civil Suit i,e,:--

(1) Car lying in Customs House (Item 34 of arbitration agreement).

(2) Maintenance allowance provided to Sheikh Murtaza Ali in London from 1960 to 1980.

(3) House situated at 33 Gulberg, Lahore (Item No,30).

(4) House at Stanmore Road, Birmingham (Item No,29).

(5) Four Squares of Land in Village Maujoki in the name of Mst.Mah Jabeen (Item No,26).

(6) Vulcan Arms Ltd.

(7) Sheikh Saleem Ali & Co.,

(8) 75-Brandreth Road, Lahore (ancestral property)

It would thus be evident that the parties to the arbitration agreement and the civil suit are distinct and different, and so is the property."

The averment of Sh. Murtaza Ali that the expression "when legal proceedings upon the whole of the subject-matter of the reference have been commenced" means that whole of the subject-matter should be "identical" cannot be accepted on plain reading of section 35 of the Act. In the ordinary dictionary, the word "whole" means entire, complete, not less than, a thing complete in itself.

Therefore, we are of the opinion that in order to attract the provisions of section 35, it is necessary that the subject-matter of the suit should be exactly the same as is the dispute before the Arbitrator. Having examined the Arbitration Agreement, dated 24th of May, 1984 and the suit for administration of properties, through partition, in juxtaposition, we are of the view that the civil suit filed by Sh. Murtaza Ali did not include the whole of the subject-matter of the reference and, therefore, the provisions of section 35 were not attracted. Whereas, Sh. Murtaza Ali had indisputably produced on the 2nd of May, 1985, a copy of the plaint of his suit before one of the Arbitrators, namely, Chief Justice (Retd.) Khan Bashiruddin Ahmed, the record conspicuously omits that he had taken any steps in the said civil suit to have the Arbitrators served with a notice of filing thereof. It is also not the case of respondent No,2 that the applications filed by Sh.Shaukat Ali and Sh. Saleem Ali were dismissed at any time prior to the pronouncement of the Award. On the other hand, it is mentioned in the impugned order itself that the application filed by Sh. Shaukat Ali was not pressed by his legal representatives and was dismissed as withdrawn, meaning thereby that at the time when the Award was given the application was still pending, because Sh. Shaukat Ali was still alive when the award was pronounced. Similarly, the application filed by Sh.Saleem Ali was rejected only on the 14th of October, 1992. In this view of the matter, the impugned order of the learned Single Judge to the effect that no arbitration in the matter could take place after the 16th of January, 1985 when Sh. Murtaza Ali filed suit for administration of properties, through partition, in which the application made by Sh.Saleem Ali under section 34 of the Arbitration Act for stay of proceedings had been rejected as, according to him, under section 21 of the Arbitration Act, no reference could be made for arbitration in respect of any matter which was subject-matter of civil suit except through the Court in which the same was pending and that, therefore, the arbitration proceedings after the 16th of January, 1985 were void, cannot be sustained and we hereby set aside the same.

13. Next comes the most important, rather an unpleasant, aspect of the matter. For attributing misconduct to both the learned Arbitrators generally, and to Chief Justice (Retd.) Maulvi Mushtaq Hussain in particular, the learned Judge has observed as follows:-- "As regards misconduct it may be pointed out that as is evident from the minutes of the deliberation dated 13-5-1984, the proposed two arbitrators had been issuing directions before their formal appointment as such to the Mediator to proceed regarding the said four items in a particular manner and it has also come in evidence that Mr. Justice (Retd.) Maulvi Mushtaq Hussain sold his property to Sh. Akhtar Ali, one of the contesting parties in the dispute. This in my view amounts to misconduct. None of the arbitrators could act in that manner as they were required to decide the disputes between the parties impartially which should have been maintained up to the date of delivery of the award." In the same context, the following views were expressed:-- "The two learned arbitrators before their formal appointment as Arbitrators took part in the parleys held on 13-5-1984, as they attended the said meeting, which in my view was not proper on their part as the parties should have been left to decide with their own free will as to whether they wanted to refer the dispute, if any, identifying the same through formal agreement of arbitration which in this case they did not execute as required by law." Learned counsel for the appellant, supported by learned counsel for respondents, except Sh.

Murtaza Ali challenged the above finding of the learned Judge on twin grounds, firstly that the learned Judge has gravely erred in holding that the property of the said learned Arbitrator was purchased by Sh. Akhtar Ali whereas it was, in fact, purchased by Mrs.Akhtar Ali who was a working lady; that she was in affluent circumstances and purchased the property from her own earnings, and secondly, that whereas the award was given on the 11 the of November, 1985, the property was purchased in the year 1987, pursuant to an advertisement given by the late vendor, and published in the newspaper. According to Dr. Sohail Akhtar, Advocate, the date of the sale Deed was either 12th or 13th of May, 1987. Surprisingly, copy of the sale-deed has not been placed on the record to demonstrate as to who was the actual vendee, how much was the price settled and who had, in fact, paid the amount of consideration, which factors were not only relevant, but were most important for arriving at a just decision. Be that as it may, an Award is not a Divine word. It is neither impregnable nor exempt from K judicial scrutiny. Sh. Murtaza Ali, respondent No,2, who has argued the case himself cited a long catena of decisions from foreign as well as from domestic jurisdictions, besides relying on section 30 of the Arbitration Act, 1940, to support the above findings of the learned Single Judge. An award can be nullified and set aside in view of the statutory provision contained in clause (a) of section 30 ibid, if an Arbitrator has "misconducted himself or the proceedings". "Misconduct" contemplated by section 30(a) is thus of two kinds, legal and/or moral. From the precedents, cited by respondent No,2 the following principles emerge:-- Legal Misconduct:

14. "Legal misconduct" means misconduct in the judicial sense of the word, for example, some honest, though erroneous, breach of duty causing miscarriage of justice; failure to perform the essential duties which are cast on an arbitrator; and any irregularity of action which is not consistent with general principles of equity and good conscience. Though not bound by the technical rules of evidence, but if an arbitrator acts arbitrarily or unreasonably, the award will be invalid. If the procedure adopted by any arbitrator is opposed to natural justice, inasmuch as he does not hear both the parties fairly, or records evidence in the absence of either party, the Award will be a nullity in the eye of law. If the award suffers from ambiguity, or the arbitrator does not determine all the matters referred to him for arbitration, then too the award cannot be sustained. If the arbitrator has ignored important evidence, or has returned a verdict which is in conflict with the evidence on record, the award will be set aside. An error of law apparent on the face of the award, relevant and material to the decision of the dispute, is also a ground to scrap the same. If irregularities in procedure can be proved, which would amount to no proper hearing of the matter in dispute, that would be misconduct sufficient to vitiate the award, without any imputation on honesty or impartiality of the arbitrator. And, if there is an indication of gross negligence or recklessness on the face of the award that might also amount to a form of misconduct on the part of the arbitrator, because that might, by itself, be sufficient to show that there was no proper hearing of the matter. To sum up, an arbitrator misconducts the proceedings when (i) there is a defect in the procedure followed by him; (ii) commits breach and neglect of duty and responsibility; (iii) acts contrary to the principles of equity and good conscience; (iv) acts without jurisdiction or exceeds it; (v) acts beyond the reference; (vi) proceeds on extraneous circumstances; (vii) ignores material documents; and (viii) bases the award on no evidence. These are some of the omissions and commissions which constitute legal misconduct or, in other words, that an arbitrator has miss-conducted the proceedings within meaning of clause (a) of section 30 of the Arbitration Act, 1940.

Moral Misconduct:

15. It is difficult to define exhaustively and exactly what amounts to "misconduct" on the part of an arbitrator. The expression is of wide import, and it means that which is misconduct by any standard. In a case of arbitration where the parties entrust their fate into the hands of an arbitrator, he becomes a Judge in the case. Therefore, it is essential that there must be abundant good faith, and the arbitrator must be absolutely disinterested and impartial, as he is bound to act with scrupulous regard to the ends of justice. An arbitrator must be a person who stands indifferent between the parties. If an arbitrator is related to one of the parties which fact is not disclosed to the other party at the time the agreement is entered into, the award can successfully be challenged as invalid on the ground of misconduct of the arbitrator. An arbitrator should in no sense consider himself to be the advocate of the cause of party appointing him, nor is such party deemed to be his client. He should refrain from identifying himself with the interest of such party and from looking forward to further employment as arbitrator, an office which carries emoluments. Where an arbitrator does an act in disregard of propriety and cause of proportion, it is not merely misconduct in the legal or technical sense but is grossly improper and inconsistent with the plain duty of an arbitrator seriously disposed to settle a dispute referred to him for arbitration. He should have no interest, direct or remote, in the subject-matter of the controversy. It is imperative that an arbitrator should always scrupulously avoid any course of action which even remotely bears the complexion of his having put himself into a position where it might be said against him that he had received a pecuniary inducement which might have had some effect on his determination of the matters submitted to his adjudication as this is a matter of so tender a nature that even the appearance of evil in it is to be avoided. An arbitrator, being in loco judicis has to act honestly and legally throughout the proceedings. The following statement of law appearing in Russell on Arbitration, 20th Edition, page 110 is worth special notice in this behalf.

"There is universal agreement amongst jurists of all countries that it is of the first importance that judicial tribunals should be honest, impartial and disinterested. This rule applies in full force to arbitral to tribunals, subject only to this exception that the parties who are free to choose their own tribunal may, provided they act with full knowledge though this exception in its turn is subject to a statutory exception which gives parties who have so chosen a locus penitential in certain circumstances. But apart from this exception, arbitrators who are in all other respects suitably qualified are disqualified by dishonesty, partiality or interest."

Therefore, where a person is appointed by two parties to exercise judicial duties, there should be uberrima fides on the part of all the parties concerned in relation to his selection and appointment and every disclosure which might in the least affect the minds of those who are proposing to submit their disputes to the arbitrament of any particularindividual ought to be made, so that each party may have every opportunity of considering whether or not to make a reference to him.

Further, if an arbitrator is indebted to one of parties at the time of the reference or becomes so indebted after the reference, and in either case does not disclose the fact to the other party, such party would be entitled to revoke the reference upon discovery of fact, and any award made by such arbitrator would be invalid on the ground of judicial misconduct. However, a known interest does not disqualify a person from acting as arbitrator, and if the parties, with full knowledge of the facts, select an arbitrator who is not an impartial person, the Court will not release them from the bargain upon which they agreed, howsoever, improvident it may consider it, so long as the Court is satisfied that he knew or should have known what kind of bargain he was entering into. These principles are so well engrafted in the judicial precedents that there can be no two opinions about the same.

16. Keeping in view the above principles, we now proceed to examine whether the award in question was liable to be set aside on the established facts. So far as the finding that the conduct of the learned Arbitrators, in having participated in the so-called "parleys" and their having issued directions, before their formal appointment, to Sh. Shaukat Ali, Mediator to proceed in a particular manner with certain matters entrusted to his care, "was not proper" is concerned, it appears, the parties had verbally agreed to the appointment of the two learned Arbitrators even before the 13th of May, 1984 on which date, as per available record, the parties had met for the first time with a view to resolving their disputes. This view is fortified by the Note, dated the 14th of May, 1984 recorded by Sh. Shaukat Ali and bearing signatures, amongst others, of Sh. Murtaza Ali, wherein, besides the presence of the parties, it is mentioned that the learned two Arbitrators had also participated in the meeting held on the 13th of May, 1984. The following statement contained in the said Note establishes beyond doubt that the parties had agreed, if not before, at least on the 13th of May, 1984 to get their disputes resolved by referring the same to the said two learned Arbitrators: -- "In that meeting (of 13th May, 1984) the disputes between the parties were tabulated, which are 33 in number. On that day, it was agreed between the parties that the two arbitrators, namely Mr. Justice (Retd.) Bashiruddin Ahmed and Mr. Justice (Retd.) Maulvi Mushtaq Hussain, will go into the disputes and will give their award." As per the said Note, formal arbitration agreement was to be signed on the next day. However, on the next date viz. The 14th of May, 1984, the parties, including Sh. Murtaza Ali, resolved that instead of directly referring the disputes to the Arbitrators, the matter might first be gone into as Mediator by former justice Shaukat Ali, who was one of the members of the family, and that in case the parties failed to accept his mediation then that matter only be referred to the decision of the two learned Arbitrators. This subsequent posture was adopted by the parties presumably with a view to short- listing their disputes. In this context, the following statement in the Note is also of some significance:-- "All the parties have assented to this arrangement and with the advice of both the Arbitrators the Mediator has taken up all the disputes for resolving the same amongst the parties."

The nomination of the learned Arbitrators was not terminated. It was, however, in this background that the two learned Arbitrators gave directions to the Mediator as contained in the Note of the Mediator, as preparatory measures to the Logical determination of the disputes between the parties. In Habib & Sons v. Virak Co. (PLD 1957 (W.P.) Karachi 245) D.B. Though originally an oral arbitration agreement, which was subsequently confirmed in writing, was held to be valid. As mentioned above, the parties herein had also executed formal arbitration agreement on the 24th of May, 1984, wherein it was also mentioned that in the event any party had cause of grievance against the decision of Sh. Shaukat Ali, Mediator, the matter shall be referred to the arbitration of the learned two Arbitrators. Thus, their appointment was kept alive, and since the parties did not feel satisfied with the decision rendered by Sh. Shaukat Ali, the learned Arbitrators were approached to arbitrate in the matter. Therefore, we find nothing objectionable if the learned Arbitrators had conducted some proceedings consequent upon the verbal agreement between the parties which was, later on, affirmed through a formal written arbitration agreement, dated the 24th of May, 1984.

17. The record reveals that Sh. Akhtar Ali, respondent No,1 herein had filed on the 20th of November, 1985 an application under section 14(2) of the Arbitration Act, 1940 before the learned Senior Civil Judge, Lahore, for filing of the Award, dated the 1 1 th of November, 1985 made by Chief Justice (Retd.) Khan Bashiruddin Ahmed and Chief Justice (Retd.)Maulvi Mushtaq Hussian so that the same was made rule of the Court. The application was entrusted to Mr. K.M. Sohail, the then learned Civil Judge, Lahore. In response to the notice issued to the learned Arbitrators, they filed the award in Court on the 22nd of December, 1985. Originally, objections to the award were filed by Sh.Saleem Ali, Mr. Javed Ali, Mst. Razia Shafi, Sh. Murtaza Ali and Mst. Mazhar Khanum. So far as Sh. Murtaza Ali is concerned, his plea was that whereas the learned Arbitrators were personal friends of Sh.Akhtar Ali and Sh. Saleem Ali because of Sh. Shaukat Ali, but the said relationship was concealed purposely and intentionally from him. The objection, founded on the sale by late Chief Justice Maulvi Mushtaq Hussain of his property and purchase thereof by Sh. Akhtar Ali, or for the matter of that by his wife, was not made a ground of attack in the objection Petition, dated the 20th of January, 1986. Be that as it may, the parties had submitted replies to the objections filed by their opponents before the learned Civil Judge.

However, before any decision could be taken, the case was transferred to the original side of the High Court and was registered as C.O.No,2-C of 1986. Needless to mention that on the 4th of May, 1986, Sh. Murtaza Ali, respondent No,2, had filed another application under sections 33 and 35 of the Arbitration Act for setting aside the award on the ground that the same had been rendered during the pendency of the civil suit for administration, through partition of the properties, filed by him. It appears, during evidence of Court-witness the question of the transaction of sale aforementioned was highlighted. The plea of Sh. Murtaza Ali as ascertainable from his cross-examination of Mr. Muhammad Afzal (C.W.3) and Sh. Akhtar Ali (C.W.4)thatoriginally the property was purchased by one Mr. Tiwana who backed out and thereafter it was purchased by Sh. Akthar Ali. However, he could not set up a definite case, resting on any sure ground, as will be seen from the following cross-examination of the above-named two witnesses:-- Mr. Muhammad Afzal (C.W.31.

" About one and half year ago from today Sh.Akhtar Alipurchased the property of Maulvi Mushtaq Hussain. I do not know as to when negotiations started for the sale of this property (Volunteered).

Before the purchase of this property by Sh. Akhtar Ali this property was purchased by one Mr. Tiwana who backed out and thereafter Sh. Akthar Ali purchased it. I do not know if there had been any advertisement issued by Sh.Shaukat Ali that if anybody was to negotiate about the purchase of this property or to convert the same into flats, he should contact Sh. Shaukat Ali. It is wrong to suggest that the negotiations for the sale of this property to Sh. Akhtar Ali started during arbitration proceedings."

Sh. Akhtar Ali (C.W.4)

".....My wife has purchased property of Maulvi Mushtaq Hussain which is situated near Katchi Abadi, in 1987. It was purchased through registered sale-deed and prior to the sale-deed there was no agreement executed. Negotiations for purchase of this property were started seven days before the execution of the sale-deed. I settled the bargain with Maulvi Mushtaq Hussain directly. I purchased this property for an amount of Rs,25,00.000 (Rs,Twenty-five lac). It is wrong to suggest that Ipurchased this property from Maulvi Mushtaq Hussain as a favour because he had delivered award in my favour. I have seen an advertisement appearing in the daily Pakistan Times dated 21- 2-1986 and repudiate that this advertisement is in respect of this very property which has been purchased by me from Maulvi Mushtaq Hussain (C.W.4/3). I did not know that prior to sale of this property by me,- Maulvi Mushtaq Hussain had already stuck bargain for sale of this property with one Mr.Tiwana. It is absolutely wrong to suggest that Maulvi Mushtaq Hussain used to say that for the sake of friends he could go to every extent to help them. It is also wrong to say that Maulvi Mushtaq Hussain used to say that if he was against anybody he would not spare him. It is also wrong to suggest that these words were used by Maulvi Mushtaq Hussain in respect of Sh. Murtaza Ali; rather he was very kind to Sh. Murtaza Ali..." ... It is wrong to suggest that the bargain about the purchase of the property of Maulvi Mushtaq Hussain was struck through the good offices of Sh. Shaukat Ali. It is wrong to suggest that the actual price fixed was Rs,50,00,000 but instead Rs,25,00,000 was shown to have been paid. I 'do not know that Maulvi Mushtaq Hussain confiscated any amount of Rs,50,000 which he allegedly received as earnest money from Mr. Tiwana..." I obtained from Maulvi Mushtaq Hussain the previous documents of ownership of Maulvi Mushtaq Hussain regarding property which I purchased from him. This- was an evacuee property which was transferred to Maulvi Mushtaq Hussain under settlement laws, therefore, the documents of ownership of Maulvi Mushtaq Hussain were those which were issued by the Settlement Department..."

"....It is correct that the property which was purchased from Maulvi Mushtaq Hussain (Retd.) Chief justice was purchased during the pendency of these proceedings. Actually my wife purchased the property of Maulvi Mushtaq Hussian (Retd.) Chief justice. My wife has her own source of income. It is wrong to suggest that the bargain about the sale of this property was settled during the pendency of the arbitration proceedings before the Arbitrators..." That is the entire cross-examination qua the transaction of sale/purchase of the property of the above-named learned Arbitrator. From the above cross-examination, it will be seen that on the one hand, Sh. Murtaza Ali attempted to prove by cross-examining Mr. Muhammad Afzal (C.W.3) that negotiations between Chief Justice (Retd.) Maulvi Mushtaq Hussian and Sh. Akhtar Ali had started during arbitration, and that the bargainabout the sale/purchase of the property was also settled during the pendency of the proceedings before the arbitrators and, on the other, he himself suggested to Sh. Akhtar Ali that he had purchased this property from Maulvi Mushtaq Hussain as a favour because he had delivered award in his favour. Not only that, the witness was confronted with the following advertisement in the Daily "THE PAKISTAN TIMES" dated the 21st of February, 1986 (Exh.C.W.4/3):-- Fh FAIR HOUSE (PRIVATE LTD.

Developers Industrial Promoters, Traders and Constructions.

Registered Office 12-P, A.F. MARKET LAHORE CANTT. 13 (PAKISTAN) PHONE 372571.

BEAT THIS!

WOULD YOU LIKE TO LIVE ADJACENT TO PEARL CONTINENETAL HOTEL, LAHORE?

IN A 3 BED LUXURY APARTMENT (Price starting from 436,900)

IF SO CONTACT FAIRHOUSES (PRIVATE) LTD.

1-2-PAF MARKET LAHORE CANTT.

PHONE: 372571 (Office will remain open on Friday)

Restricted booking opens for Selected Clients, Plans approved Title to property may be verified From SHAUKAT LAW ASSOCIATES, LAHORE PHONE: 66174 The above extracted advertisement in the newspaper was relied upon obviously to conjure up a link between late Chief Justice (Retd.) Maulvi Mushtaq Hussain and Sh. Shaukiat Ali, and attention of the witness (Sh.Akhtar Ali) was drawn to the same to bring out, inter alia that Sh.Akhtar Ali had purchased the property pursuant to the same, meaning thereby that the purchase of the property was after the 21st of February, 1986, because if the property had been purchased by Sh. Akhtar Allduring the arbitration proceedings, which ended with the Award, dated the 11th of November, 1985, there could be no justification for issuing the advertisement thereafter. The suggestions given by Sh. Muraza Ali, in this behalf, were destructive of each other. It appears, Sh. Murtaza Ali had been proceeding on conjectural hypothesis, benefit of certainty. If the transaction of sale/purchase had, in fact, taken place during the arbitration proceedings and Sh. Murtaza Ali had knowledge thereof, he would not have missed the opportunity to make it a ground of attack to the award when he filed the Objection Petition on the 20th of January, 1986, which conspicuously omits any such allegation.

18. There is yet another aspect of the matter. Sh. Murtaza Ali, respondent, attempted to establish that the property pure seed by Sh.Akhtar Ali was the same which was advertised through the proclamation which had appeared in the press on the 21st of February, 1986, and wherein it was mentioned: "Title to property may be verified From SHAUKAT LAW ASSOCIATES, LAHORE PHONE: 66174"

The advertisement was not given by Shaukat Law Associates of which Sh. Shaukat Ali was undeniably the Senior Partner, but it was got published by "FAIR HOUSE (PRIVATE) LTD. 1-2-PAF Market, Lahore Cant". Moreover, in the advertisement, the name of the owner does not find mention.

When suggested to Sh. Akhtar Ali (C.W.4) that the property purchased by him was the same which was advertised as aforementioned, his reply was to the following effect:-- "I have seen an advertisement appearing in the Daily Pakistan Times dated 21-2-1986 and repudiate that this advertisement is in respect of this very property which has been purchased by me from Maulvi Mushtaq Hussain (C.W.4/3)."

From the available record, it is absolutely impossible to connect the property subject-matter of the sale with the one mentioned in the advertisement. Even the Sale Deed had been brought on the record. Assuming for the sake of argument that the property subject-matter of the sale was the same which was advertised on the 21st of February, 1986, then too there is no evidence that the advertisement was, in fact, given by Shaukat Law Associates and the name of M/s. Fair house (Private) Limited was only used. The possibility of M/s. Fair house (Private) Limited being brokers and utilizing expertise of Shaukat Law Associates, well-known Law Firm, as their Legal consultants/Advisers cannot be ruled out altogether. Moreover, there could be a possibility of Chief Justice (Retd.) Maulvi Mushtaq Hussain having approached Messrs Fair house (Private) Ltd., for sale of his property, and having handed over Title Deeds (or copies thereof) of them who, in turn, might have made over the same to Shaukat Law Associates.

19. Doubtless, it was suggested to Sh. Akhtar Ali (C.W.4) that the bargain about the purchase of the property of Chief Justice (Retd.) Maulvi Mushtaq Hussain was struck through the good offices of Sh.Shaukat Ali, and that the actual price paid was Rs,50,00,000 but instead Rs,25,00,000 were shown to have been paid, but the witnesses gave a lie to both the suggestions. Except the bare suggestion, no evidence was led to show that the amount of Rs,50,00,000 was, in fact, paid by Sh.

Akhtar Ali to Chief Justice (Retd.) Maulvi Mushtaq Hussain. Further, assuming that the amount paid was Rs,50,00,000, then too there is no evidence on record to show that the property was not worth the price paid to him. The bald suggestion given to Sh. Akhtar Ali (C.W.4), without there being any other piece of evidence to show that the denial of the suggestion was conceived out of male fides, with a view to concealing the actual value of the property and the price paid therefor, cannot take the place of legal evidence; at times truth is stranger than fiction.

20. Referring then to the sale of the property by Chief Justice (Retd.) Maulvi Mushtaq Hussain in favour of Sh. Akhtar Ali, the learned Judge has held: "This in my view amounts to misconduct". The learned Judge proceeded to base this finding on the reasoning that the learned Arbitrators should have maintained "impartiality" "up to the date of delivery of the award". Suffice it to say in this behalf, has escaped notice of the learned Judge that the Award was given on the 11th of November 1985 and, according to Sh. Akhtar Ali (C.W.4) the property was purchased by him in the year 1987.

As already mentioned when questioned during arguments about the exact date of the transaction, Dr.Sohail Akhtar, learned counsel for respondent No,1 and for legal heirs of respondent No,5, stated that it was either 12th or 13th of May, 1987. Even otherwise, there is nothing on record to belie. Sh.

Akhtar Ali in this behalf. Be that as it may, the fact remains that the transaction of sale/purchase of the property had not preceded the pronouncement of the Award, but took place about a year and a half thereafter. In these circumstances, we are of the considered view that late Chief Justice Maulvi Mushhtaq Hussain could not, at all, 'be attributed misconduct, so as to render the Award shorn of efficacy, nor the same could be set aside for reasons given by the learned Single Judge.

We are not unmindful of the fact that an arbitrator should not exhibit a behaviour, even after pronouncement of Award, which might give a cause of apprehension to any one of the parties to the reference that he was in collusion with the other party, or his opponent. It is well-settled that there must be purity inthe administration of justice, as well as in administration of quasi justice as are involved in the adjudicatory process before the arbitrators. Once an arbitrator enters in an arbitration, he 'must not be guilty of any act which can possibly be construed as indicative of partiality, unfairness or bias. By bias, we understand a real likelihood of an operative prejudice, whether conscious or unconscious. Once it 'is established that the arbitrator was actually biased, the award has to be set aside. Likewise, the fact that the arbitrator has any dealing with one of the parties does afford a real likelihood of an operative prejudice on his part, and the existence of such relationship with one of the parties, unknown to the other, may induce the Court to set aside the award. It is also settled that if the arbitrator has an undisclosed or concealed personal interest in either of the parties then that can be a ground for setting .Aside the award, provided the fact of the arbitrator having such interest or bias is established. But once misconduct is pleaded by a party, he has got to give particulars thereof and merely a vague and bald statement cannot be a substitute for proof. The facts which constitute the misconduct must be specifically stated. The burden of establishing misconduct is on the party alleging it. Where partiality or wrong doing is alleged against an arbitrator, it has got to be established, beyond doubt, the presumption always being in favour of the award. It is not the function of the Court, at least not of the Appellate Court, to resort to a combing process as this would tantamount to impeachment of the Award by the Court itself which function the Court need not arrogate to itself. Moreover, the Court is not entitled to make a roving and sifting investigation of the record and proceedings before the arbitrator and constitute itself a regular Court of Appeal from the Award. The Courts are always extremely slow in finding faults with an Award. In the instant case, the mere suspicion or whims of a party could neither be a good reason nor constituted a valid ground to ascribe lack of judicial detachment and impartiality to the two former Chief Justices of two High Courts of the country. Doubtless, a party may not be required to prove a cast-iron case in order to bring home the charge of misconduct, but the facts and circumstances should be such as to convince the conscience of a reasonable person that the fountain of justice has not remained unsullied and unpolluted. Also, there must, in our opinion, be reasonable evidence of a real likelihood of bias but certainly mere flimsy ground elusively generated and morbid suspicions cannot be permitted to form a ground of attack. The apprehension must be judged from a healthy, reasonable and average point of view, and only the apprehension of an average honest man can be taken note of. Vague suspicions of whimsical, capricious and unreasonable people cannot be made the standard to regulate the Court's vision.

Having given our anxious thought to all the facts and circumstances of the case, and despite the fact that we hold the learned Single Judge in high esteem, we have not been able to persuade ourselves to agree with his conclusion on the question of misconduct. We are of the considered opinion that the facts relied upon by him do not satisfactory prove that the late Chief Justice had conspired, or was acting in concert and collusion with Sh.Akhtar Ali or Sh. Shaukat Ali, and, therefore, the charge of misconduct fails. Accordingly, we would hold that the Award in question was not vitiated by reason of the alleged misconduct.

21. Before us, Sh. Murtaza Ali, respondent No,2, has relied on the letter, dated the 27th of 1986 (Exh.CW-3/6) written on letter-head of Shaukat Law Associates by Mr. Javed Iqbal, Advocate addressed to Mrs. Razia Shafi and Mrs. Ijaz Amanullah. On the letter-head is printed the name of "Mr. Justice (Retd.) Khan Bashiruddin Ahmad" alongwith other names of Advocates, whether Partners of Associates of "Shaukat Law Associates". When confronted with this letter, Ch. Muhammad Afzal (C.W.3), in his cross-examination, stated as follows:-- "Exh.C.W.3/6 is a letter-head of Shaukat Law Associates. I know English very well and can read and write also. It is correct that on this letter-head the first name which appears is that of Mr.Justice (Retd.) Bashiruddin Ahmad. I joined Shaukat Law Associates in the year 1983 and since then the name of Mr.Justice (Retd.) Bashiruddin Ahmad is being printed on the letter-head of Shaukat Law Associates."

Surprisingly, the witness was not further examined whether Mr. Justice (Retd.) Khan Bashiruddin Ahmad was a Partner or an Associate of Shaukat Law Associates. May be he had only lent his name which was being used by Shaukat Law Associates for their own credibility, without active participation of Chief Justice (Retd.) Khan Bashiruddin Ahmad either as a Partner or an Associate.

Sh. Murtaza Ali is a real brother of Sh. Shaukat Ali. It is beyond one's comprehension that Sh. Murtaza Ali was unaware of the status of Chief Justice (Retd.) Khan Bashiruddin Ahmad qua Shaukat Law Associates. Moreover, as per C.W.3, his name was being printed on letter-heads of Shaukat Law Associates at least from 1983 when the witness had statedly joined the said Law Firm. Therefore, nothing was kept secret or concealed from Sh. Murtaza Ali. Moreover, there is nothing on record to show that Chief Justice (Retd.) Khan Bashiruddin Ahmad had any personal interest in Shaukat Law Associates. We are, therefore, of the opinion that the learned Single Judge has rightly ignored and left out of consideration this aspect of the matter.

22. As mentioned above, besides Sh. Murtaza Ali (respondent No,2), Mr. Javed Shafi, Mrs. Razia Shafi and Mst. Mazhar Khanum had also filed objections to the Award in question whereas Sh. Saleem Ali, appellant sought its modification. The learned Single Judge had framed as many as 21 Issues.

Except the objections filed by Sh. Murtaza Ali, hehas not dealt with the objection filed by the other persons. No findings on individual issues were recorded. Before, us, learned counsel for the appellant as well as those representing the other respondents except Mr.Ghulam Murtaza Bhatti, who represented Mst. Mazhar Khanum,respondent No,8 and had shown reservation with regard to the findings in the Award because of her claim to the property located at Brandreth Road, Lahore, have supported the Award, but a perusal of the record reveals that they had not withdrawn the objections at any times. In the result, allowing this appeal we would set aside the impugned order, dated the 15th of January, 1997 passed by the learned Single Judge and would remand the case to him for decision of the matter afresh by disposing of the objections filed by the parties other than Sh. Murtaza Ali. There shall be no order as to the costs.