' ABDUL HAMEED DOGAR, J.--- Petitioner seeks leave to appeal against the judgment dated 4-12- 2001 passed by a learned Division Bench of the High Court of Sindh, Karachi, whereby H.C.A. No,19 of 2002 filed by respondent was allowed.
2. Briefly, stated, the facts of the case are that on 25-5-1996, respondent invited tenders for the work of sewerage Stage-I in Phase VIII Defence Housing Authority at Karachi. Tenders were opened on 1-6-1996 and the aforesaid work was awarded to the petitioner. On 22-7-1996 an agreement between the petitioner and respondent was executed and during the execution of the work, some disputes arose between them. On 17-3-1999, petitioner made a reference to the Consultants/Engineer Messrs S.I. Engineering Associates in view of clause 26 of the Arbitration Clause contained in the general conditions of the contract. The consultants recommended for payment of the amount of claim to petitioner but the respondent did not agree with the recommendations and the same were sent back to the Consultants for reconsideration. On 27-5- 2000 the Consultants confirmed their earlier recommendations but respondent did not comply with the said recommendations, therefore, on 26-3-2001, petitioner filed Suit No,363 of 2001 before learned High Court of Sindh at Karachi, for recovery of an amount of Rs,70 million. On 3-5-2001, the matter was fixed before the Additional Registrar, who allowed four weeks time to respondent to file written statement. On 19-9-2001, the case came up before the Additional Registrar again who allowed two weeks more time to the respondent to file written statement. In spite of service, no one was present on behalf of respondent on both aforesaid dates. On 30-7-2001, petitioner moved application under Order VIII, rules 1 and 10, C.P.C. For striking off the defence of respondent. When the application came up for hearing before the Court on 10-8-2001, learned counsel for respondent for the first time appeared in the Court and prayed for time to file written reply to the said application. On 22-8-2001 learned counsel for respondent moved C.M.A. No,6203 of 2001 under section 34 of the Arbitration Act for referring the matter to the Arbitrator. Petitioner also filed objections through C.M.A. No,7592 of 2001 under section 33 of the Act to contest the arbitration agreement and for orders that the arbitration option was neither available to the respondent nor required under circumstances of the case and that there was a specific bar of 28 days as provided under clause 27 of the agreement for aggrieved party to invoke the arbitration against the decision of Consultant. The learned Single Judge vide order, dated 4-12-2001 rejected C.M.A. No,6203 of 2001 filed by respondent whereas allowed C.M.A. No,7592 of 2001 of the petitioner. Feeling aggrieved, respondent filed H.C.A. No,1 of 2002 which was allowed vide impugned judgment.
3. We have heard petitioner S.M. Hashim Hussain in person and Ch. Muhammad Jamil, learned Advocate Supreme. Court for respondent and have gone through the record and the proceedings of the case in minute particulars.
4. Petitioner mainly contended that at the initial stage, he made reference under clause 26 of the Arbitration Agreement to Consultant who vides order, dated 17-3-1997 recommended his claim for the payment of amount which was later on confirmed on 27-5-2000 on the reference made by respondent for reconsideration. In view of clause 27 of the Arbitration Agreement, there is clear cut bar of 28 days for referring the matter for arbitration which in the instant case has not been done by respondent, as such, application under section 34 of the Act was not maintainable, which was rightly rejected by the learned Judge in Chambers. According to him, dispute with regard to rate has been decided by the Consultant and confirmed on 27-5-2000, hence referring the matter to Arbitrator is not justified.
5. On the other hand, learned counsel for respondent controverted the above contentions and supported the impugned judgment which according to him,. Is well-reasoned wherein every aspect of the matter has been thoroughly dilated upon.
6. There is rio denial of existence of clause 18 in the subsequent agreement executed between the parties on 22-7-1996. The wording whereof is as follows:-- "18. ARBITRATION: All disputes between the parties to this contract, arising out of the contract, other than those for which decision of the Accepting Officer or any other person is by contract expressed to be final and conclusive, shall, after written notice 'by either party to the Contract, be referred to the sole arbitration of the Arbitrator appointed by the Executive Board, Pakistain Defence Officers Housing Authority, Karachi. Decision of the Arbitrator, so appointed shall be final, binding and conclusive for both the parties."
7. The main contention of the petitioner that for non-compliance of clauses 26 and 27 of the Arbitration Agreement, recommendations of the Consultant attained finality, has been elaborately discussed by the learned Division Bench in the impugned judgment and has rightly held that those recommendations could not be deemed to be the final decision within the meaning of above clauses of the agreement. In terms of clause 18 of the condition of agreement, it is obligatory upon the parties to refer the dispute arising in between them to Arbitrator for its resolution. In such circumstances, the only option available to. The petitioner was to avail remedy under clause 18 of the conditions of the agreement.
8. For what has been discussed above, we are of the considered opinion that the impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither, there is misreading, nor non-reading of material evidence, or misconstruction of facts and law. Resultantly the petition being devoid of merit is dismissed and leave to appeal refused.