' The instant F.A.O. 484 of 2002 as also F.A.O. No.493 of 2002 are being disposed of together, as both involve the common questions of law and facts.
2. Mr. S.M. Zafar, Advocate, acting as an arbitrator between the parties, pronounced his award, dated 17-10-1998, which ultimately was filed before the Civil Court at Lahore. The appellants in F.A.O.
No.484 of 2002, filed objections to the award, which have been dismissed by the learned Civil Judge, Lahore, vide impugned order, dated 31-7-2002, hence this appeal.
3. The other appeal (F.A.O. No.493 of 2002), has been filed by Mst. Sarwat Irntiaz, Mrs. Nuzhat Mashhadi and Mrs. Sabiha Husnain Bukhari. They are not aggrieved of the impugned order inasmuch as the award has been made rule of the Court, but while passing the order, the learned Court has directed for the payment of the certain stamp duty and it is this portion, which has been assailed by these appellants.
4.. Briefly stated the facts of the case are that, after the death of Syed Imitaz Hussain, a dispute arose between his legal heirs and the relations with regard to the estate left by him and also about the properties in the name of Mst. Sarwat Imtiaz, his widow. The dispute aggravated to an extent that Mst. Sarwat Imtiaz filed a W.P. No.12489 of 1998, seeking the registration of the case against Azhar Hussain Naqvi and Ali Hussain Naqvi, her son-in-law and grandson respectively, the husband and the son of Mst. Arshia Azhar (the appellant).. This petition came up for hearing before the Court on 3-8-1998, and the following order was passed:- "The parties belong to the same family and are in dispute with respect to some family property.
Both the sides have expressed their desire to settle the matter in question amicably. Both of them agree to resolve the problem through arbitration and have jointly suggested the names of Mr. S.M.
Zafar, Advocate as the sole arbitrator and in the alternative Mr. Hamid Khan, Advocate as the sole arbitrator to determine the issues.
(2) Let the learned counsel representing the two parties establish contact with Mr. S.M. Zafar, Advocate to find out whether he would be available and willing to undertake this noble exercise. In case, Mr. S.M. Zafar, Advocate expresses his unwillingness or non-availability then both the learned counsel will find out whether Mr. Hamid Khan, Advocate would be willing to handle this burden."
5. However, before the next date of hearing in the above matter, the parties as also Azher Hussain Naqvi, entered into an arbitration agreement, dated 21-9-1998 and appointed Mr. S.M. Zafar, Advocate to act as a sole arbitrator for the resolution of their dispute, therefore, when the writ petition came up for hearing on 29-9-1998, the following order was passed:-- "It is submitted that in pursuance of the desire of both the parties, Mr. S.M. Zafar, Advocate teas already undertaken the exercise to settle the issue between the parties and in fact both the parties have committed in writing to abide by whatever decision is given by Mr. S.M. Zafar. Pray for a week's time to await the said decision."
' The Arbitrator proceeded with the matter, made/signed and pronounced his award on 17-10-1998.
It transpires from the record that for the purposes of seeking the filing of the award in the Court, the appellants moved an application under section 14(2) of the Arbitration Act with the learned Civil Judge, Lahore on 31-10-1998. Pending the application, Mr. S.M. Zafar, sent the award with other documents and the arbitration proceedings to this Court, therefore, on 30-11-1998, the Court passed the order as below:-- "It is submitted that an application under section 14(2) of the Arbitration Act is pending in the Court of Syed Shujaat Ali Tirmizi, learned Civil Judge at Lahore and it is jointly prayed by the learned counsel for all the parties that the award and other documents received from Mr. S.M. Zafar be sent to the said learned counsel for proceeding according to The award and the record were accordingly sent to Civil Court.
6. On the filing of the award, the appellants filed objections thereto under sections 30 and 33 of the Arbitration Act, mainly raising the pleas, that the High Court in writ jurisdiction, could not refer the matter for the arbitration, as it is not the Court within the purview of section 2(c) of the Arbitration Act, therefore, as the reference was incompetent, resultantly, the entire proceedings are corum non judice and the award is invalid; besides, Mr. S.M. Zafar Advocate, had associated some persons with the aribration proceedings, who were not party to the arbitration agreement and one of such persons namely Mr. Tauqeer Shah is a close relative of Mr. S.M. Zafar, therefore, in the above scenario, the arbitrator has, misconducted himself and was bias. It was further objected that, certain properties, which were never the subject-matter of the arbitration agreement, have been included and divided in the award, this was beyond the pale of the reference and also the jurisdiction of the arbitrator; the arbitrator obtained the signatures of the appellant on the blank papers, which have been subsequently filled and fabricated and resultantly, having misconduct in this manner, the award rendered by Mr. S.M. Zafar, Advocate is liable to be set aside; the division of the assets as awarded, is unnatural and un-practicable, and instead of resolving the matter, it has created more complications; the properties in issue could not have been divided/demarcated without recording of the evidence and holding a proper inquiry and preparing the list of articles attached to the properties; no opportunity of hearing has been given to the appellants by the arbitrator, rather they wanted to produce evidence in the proceedings and to examine certain witnesses, but this was illegally refused by the arbitrator; no reasoning has been given in the award, as required under section 26(a) of the Arbitration. Act; the arbitration agreement is not on the stamp paper and, therefore, until the deficiency was made good, the same could not have been acted upon.
7. The objections were contested by the respondents, who filed their reply and E the learned Court below was pleased to frame the issues. The parties were put to trial and after concluding the same, the learned Court has dismissed the objections of the appellants; the award has been made rule of the Court, but subject to the condition, that certain stamp duty has to be paid on the award in the light of the law, hence these appeals.
8. Heard. In support of his contention, that in view of the definition of the "Court" given in section 2(c) of the Arbitration Act, no reference in writ jurisdiction r could have been made to the arbitrator, the learned counsel for the appellants has relied upon Abdul Qayyum Khan v. Government of Punjab through Secretary Local Government and Rural Development Department and another (PLD 1995 Lahore 205), Messrs United Builders Corporation v. Azad Jammu and Kashmir Mineral and Industrial Development Corporation and another (1989 CLC 1825), and Hitachi Limited and another v. Rupali Polyester and others (1998 SCMR 1618).. Suffice it to say that, the argument has no force for the simple reason that, the Court vide orders reproduced above, did not make any reference to the arbitrator, rather facilitated the parties in this behalf, whereas the parties out of their own free will and consent have entered into an independent arbitration agreement. In the agreement, the nature of, the dispute inter se the parties; the scope and the subject-matter of the dispute and the arbitration is clearly mentioned, which is composite + complete in all respects and shall undoubtedly be considered as a reference to the arbitrator as well. Therefore, by no stretch of reasoning it can be said, that any reference was made to the arbitrator by this Court in the above writ petition. The submission thus, has no force and is hereby repelled. As regards the plea, that the sufficient reasons in terms of section 26(a) of Arbitration Act, have not been given in the award, this on the face of the award is baseless; because from the contents of the award, coupled with the Annexures attached thereto, it seems that the parties had consented to the resolution of their dispute in the manner in which the award has been made, therefore, there was no occasion for the extensive reasons, however, for whatever items the parties did not agree, the arbitrator has assigned sufficient reasons to justify his award. Consequently, the judgments reported as Wazir Khan and 8 others v. Sardar Ali and 25 others (2001 SCMR 750), Muhammad Iqbal v. P.I.D.C. (2000 CLC 876), Province of Punjab through Secretary to Government of the Punjab Communications and Works Department Lahore and another v. Messrs Tarmic Construction (Pvt.) Limited (1999 CLC 946), relied upon by the learned counsel for the appellants to support his above plea, have no relevance.
9. The submission, that the arbitrator did not provide the appellants with an opportunity of leading any evidence, has been examined and found without any substance, for the reason that, according to the proceedings of the arbitrator, the parties made a statement before him on 5-10-1998 as under:--
10. "We have presented our case orally today and we have given to the arbitrator our arguments in writing. We do not want to produce any further arguments. We would like you to decide on the basis of our written notes."
11. This bears the signatures of the appellants as well. Thus, the light of above, it does not lie in the mouth of the appellants to state, that they were not given any opportunity of producing the evidence. The case set out by the appellants that they along with the witnesses went to the arbitrator on 9-10-1998 for the purpose of examining them, it may be held that by 5-10-1998, as per the above statement, the proceedings were already concluded, pending decision of the arbitrator.
Therefore, the appellants taking along with them any number of witnesses on 9-10-1998, has no material relevance, when they never applied to the arbitrator to allow them to adduce any further evidence.
11. The objection, that the arbitrator procured the signatures of the parties on blank papers and those have been filled to be fabricated as annexures to the award, it may be held that, this plea is baseless. There is no independent evidence in this regard, and the mere plea of the appellants cannot be accepted, especially from the nature of the documents attached to the award as the "Annexes" it is most improbable that the blanks were got signed and the contents have been filled thereafter. To my mind, in order to abortively wriggle out from the effect of their consent as postulated by the Annexure, such frivolous plea has been raised.
12. The submission, that the arbitrator had associated extraneous persons to the proceedings, I do not find any such person to be so involved. Shamsa Ali, Advocate, who has been attacked much in this regard, G has been representing Mrs. Sarwat Imtiaz and the appellants have failed to prove, if she in any manner, has influenced the proceedings.
13. So far as, the bias of the arbitrator on account of his relation with Tauqeer Shah is concerned, it may be held that, in fact Taqueer Shah was the person, on whom the appellants reposed confidence. It is not their case, that he had some relations or soft corner with the respondents' side and exercised any influence upon the arbitrator, rather in reply to the claim before the arbitrator, they stated "excepting of course our willingness to accept Syed Taquee Hussain as arbitrator from the start of this dispute".
14. I am not convinced by the argument, that the arbitrator has included any properties, which are not the part of the reference. The arbitration agreement and the reference in this behalf are very clear. However, if the objection is only to the extent of the dower allowed to Mst. Sarwat Imtiaz, the mother of the appellant, suffice it to say, that the respondents have conceded that under the award, the appellants may not pay her share of Rs.25,000 in this regard.
15. For the submission that the award is un-practicable and has created more complications, it may be mentioned, that as per the annexures attached to the award, mentioned above, which have been signed in consent by the parties, the above plea is not available to the appellants. No other plea has been raised. Resultantly, I do find that the learned Court below has rightly concluded to dismiss the objections of the appellants.
In the light of the foregoing reasons, no case has been made out for interference in the appellate jurisdiction. The appeal thus, has no merits and is hereby dismissed.
16. As regards the other appeal F.A.O. No. 493 of 2002 is concerned, I do not agree with the learned counsel for the appellants, that it is a family settlement and, therefore, the award should not be subject to 3% of the stamp duty. I am clear that, even if it is construed to be an award with the consent of the parties, it shall operate, as an instrument of the partition and the stamp duty as required under the law, is undoubtedly payable thereupon. Therefore, this appeal has also no force and is hereby dismissed.