JUDGMENT MUHAMMAD MUZAMMAL KHAN, J.- This judgment proposes to decide two civil revisions (C.R. No. 1049/1999 and C.R, No. 1017/1999) arising out of consolidated judgment of the Appellate Court, between the same parties and.
Involving similar questions of law and facts. The Trial Court, as well as, the Appellate Court has also disposed of the two matters between the parties, through consolidated judgments.
2. These civil revisions assail judgment and decree dated 6.5.1999 passed by the learned Additional District Judge, Faisalabad whereby appeal of the respondents was accepted, their suit was decreed by setting aside decision of the Trial Court dated 21.9.1992 and at the same time, application of petitioners. No. 1 and 2 under sections 14 and 17 of the Arbitration Act, 1940, was dismissed.
3. Precisely, relevant facts are that the property No. P-154, Old Lakar Mandi, Street No.6, Faisalabad, consisting of a double storied residential house with five shops in front of it, was an evacuee property. The shops were transferred to the occupants by the Settlement Department whereas the residential house was transferred to one Mst. Basri. Two out of five shops were transferred to Muhammad Siddique, on whose death, these were inherited by Mst. Hamida Bibi etc. Who sold the shops to respondents No. 6 to 10, from whom the petitioners purchased those. Heirs of late Muhammad Siddique, Nasim Ahmad etc. Wanted to reconstruct the shop in-question and demolished it whereupon Mst. Basri somewhere in 1978 filed a suit for permanent injunction against Nasim Ahmad etc. On the ground that roof of the shop in disputed, was owned by her being part and parcel of her residential portion which was being used by her as courtyard. Mst. Basri also filed an application for temporary injunction restraining the owners of- the shop from raising construction but her application was dismissed by the Trial Court. She also filed an appeal before the learned Additional District Judge and thereafter filed a civil revision before this Court and interim injunction was granted in the civil revision, in favour of Mst. Basri. It appears that pending civil revision, the shops were purchased by the petitioners and consequently the revision petition was withdrawn by Mst. Basri on 17.5.1983.
4. Mst. Basri filed another suit against the petitioners for declaration that roof of the shop is her ownership and the arbitration agreement dated 25.4.1983 and award thereover dated 28.4.1983 are illegal, void and in effective qua her rights. She also prayed a permanent injunction, restraining the petitioners from raising construction over the roof of the shop beyond the existing level.
5. On the other hand, the petitioners filed an application under. Sections 14 and 17 of the Arbitration Act, 1940 for making the award dated 28.4.1983 as rule of the Court. Mst. Basri being respondent in the petition, contested it. The petitioners who were defendants in the suit, filed by Mst. Basri, controverted the averments in the plaint by filing their' written statement wherein they raised a number of preliminary objections like lack of cause of action in the plaint, absence of locus standi, suit being not maintainable in view of provisions of Order II, Rule 2 and Order XXIII C.P.C, besides an objection of suit being barred by res-judicata. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter, after doing the needful vide his judgment and decree dated 21.9.1992 dismissed the suit of Mst.
Basri and at the same time accepted application of the petitioners under section 14 of the Arbitration Act, 1940 and made the award rule of the Court.
6. Mst. Basri, aggrieved of the decision of the Trial Court dated 21.9.1992 filed two separate appeals one against the judgment and decree dismissing her suit and the other under section 39 of the Arbitration Act, 1940 against an order under section 14 of the Arbitration Act. Mst. Basri, pending these appeals died and respondents No. 1 to 11 were substituted in her place as appellants who succeeded before the Appellate Court as their appeals were accepted and their suit was decreed, besides dismissing application of the petitioners under sections 14 and 17 C.P.C, of the Arbitration Act. The petitioners, thereafter, filed two civil revisions (C.R. No. 1049/1999 and C.R. No. 1017/1999) separately challenging decree in the suit of respondents No. 1 to 11 and judgment dismissing their application under the Arbitration Act, 1940. Both these revision petitions were admitted to regular hearing and after completion of service have now been placed for final determination.
Respondents No. 4 to 7 who, besides others, are heirs of deceased Mst. Basri, are represented through their counsel whereas the remaining respondents, in spite of their service, opted not to appear and defend these petitions, hence, were proceeded ex-parte vide order dated 24.11.2000.
Learned counsel for the parties have addressed joint arguments on both the civil revisions, above referred.
7. Learned counsel for the petitioners submitted that the Appellate Court, while reversing well- reasoned judgment of the Trial Court, not only misread and non-read the material parts of the record but also proceeded to decide the case in a slip shod manner which is a patent illegality. He further submitted that PTD of the shop in-question issued in favour of the original allottee, does not limit height of the shop up to its ceiling and without any such restraint in the PTD, it will be deemed to have been transferred up to the sky. He further contended that the petitioners are purchasers in second place and both the sale-deeds one in favour of the vendor of the petitioner/ and other in their own name, transfer roof, as well, thus, claim of the predecessor of the respondents is not borne out of the record, It was also submitted that on behalf of the petitioners that according to showings of deceased Mst. Basri in her plaint, their existed no. Construction over the shop in dispute, hence, suit of respondents No. 1 to 11 could not have been decreed because residential part of the property in-question falls at the rear part of the property and has nothing to do with the roof of the shops falling on the front of it. He further elaborated his arguments by saying that previous suit of Mst. Basri was withdrawn without any permission to file fresh suit thus, the second suit on the same cause of action was not maintainable in view of provisions of Order XXVIH, Rule 1 C.P.C, and that was also barred under the provisions of Order II, Rule 2 C.P.C. Learned counsel for the petitioners further emphasized that suit to challenge an award was not competent. Under law for annulment of an award, a mechanism having been provided by the Arbitration Act which being a complete code in itself, the-suit under adjudication was not maintainable, In this behalf, a reference to the judgment Government of Sindh and others Vs. Ch. Fazal Muhammad and others (1990 PSC 1252) was made. Learned counsel for the petitioners also challenged the order of the learned Additional District Judge dismissing application of the petitioners under sections 14 and 17 of the Arbitration Act, 1940.
8. Learned counsel appearing on behalf of respondents No. 4 lo 7 refuted the arguments of the petitioners, supported the judgment and decree passed by the Appellate Court and urged that agreement for referring the matter to arbitration, pending suit, without intervention of the Court was void, in view of provisions of section 47 of the Arbitration Act and consequently the award delivered on its basis was also a nullity in the eye of law and cannot be enforced. According to his submissions, such a document could be challenged by maintaining a suit. A reference in this behalf was made to the judgments of Province of Punjab through Collector, Jhang and 2 others Vs. Messrs Sher Muhammad & Co. And 23 others (2001 CLC 613), Haji Anwar AH and others Vs. Bashir Ahmad (2002 CLC 421), Allah Bakhsh Vs. Mst. Shamshad Begum and 2 others (KLR 1990 Civil Cases), Abdul Mateen and 3 others Vs. Yusuf Bilal and 4 others (PLD 1985 Karachi 422), Hashmat Bibi \/s. Muhammad Rafi and another (NLR 1980 AC 439), Asmatennessa Bibi Vs. Arju and another (PLD 1867 Dacca 603). He further contended that roof of the shop is being used by the respondents where over they have lavatrine and thus, is a part of the residential house of the respondents. According to his submissions, though there is no limit to the height of the shop mentioned in the PTD yet it has been clarified by the order of the Settlement Commissioner Ex. P.3 and thus, the Appellate Court has rightly decreed the Suit of the respondents. He further emphasis that Mst. Basri was an old, illiterate and pardah observing lady who was defrauded by the vendors of the petitioners whereunder she was made to understand that the dispute with regard to roof of the shop is being resolved through arbitration and falsely got her earlier suit withdrawn, in the civil revision pending before this Court. According to his submissions, since the award was not made rule of the Court when the suit was filed i.e. On 2.6.1983, thus, the respondents were not needed to file any application under section 12(2) C.P.C.
9. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. The Appellate Court while reversing judgment of the Trial Court, remarked in para 8 of the judgment that the Trial Court erroneously discussed exclusively PTD Ex. P.2 and did not take into consideration findings of the Settlement and Rehabilitation Commissioner in Ex. P.3, the order passed in revision petition No. 36 filed by the original allottee to the effect that "property in dispute in this case described as property No. P- 154, Ward No. 8, Lyallpur comprising 5 shops and a residential portion on the top of shops and behind the said" shows that Mst. Basri was the owner of the roof, It was also remarked that the findings given by the Settlement and Rehabilitation Commissioner were not challenged and in this manner Trial Court incorrectly held that Mst. Basri could not prove her ownership over the roof. The portion of order of the Settlement and Rehabilitation Commissioner, shown in quotations above, has been miscoded whereas the relevant part of the order of the Settlement Commissioner dated 20.10.1972 reads as under: "Property in suit in this case described by Property No. P.154 Ward No. 8, Lyallpur comprises five shops and a residential portion on the top and behind the said shops. The residential portions and four shops of them stood already disposed of and are not in suit. Only the 5th shop however is now the matter of dispute between the petitioners and the respondent."
Learned Settlement and Rehabilitation Commissioner by the above produced portion of his order wanted to convey that the composite building consists of five shops and a double storied residential house falling on the back of the shops, it does not convey or hold that residential portion of Mst. Basri is located on the top of the shops. Mst. Basri in her own plaint has not made any such assertion wherein she pleaded that roof of these shops, is being used by her as courtyard. Learned counsel appearing on behalf of the respondents has also argued the case, in the manner, as is made out by Mst. Basri in her plaint. If the portion of order passed by Settlement & Rehabilitation Commissioner dated 20.10.1972 shown in quotations above, is excluded from the judgment of the learned Additional District Judge, there remains no other basis for it, to stand.
10. PTD in favour of Mst. Basri Ex. P.2 does not show that roof of the shops was transferred in her name. PTD in favour of the original allottee of the shop in-question, predecessor of the petitioners (Ex.D.12) does not limit the height of the shops to ceiling and in absence of any such specification in PTD, the transfer will be considered from ground to sky as mandated by the Honorables Supreme Court in the case of Nazir and others Vs. Syed Israr Ahmad etc. (1981 SCMR 829). Two sale-deeds in favour of the petitioners Ex. D.9 and Ex.D.10 show that shops in question were transferred by the purchaser Nasim Ahmad etc. With roof of the shops, lying vacant.
11. Mst. Basri, earlier filed a suit for permanent injunction wherein she also claimed ownership over the roof of the shop which was dismissed and she filed an unsuccessful appeal whereafter withdrew her revision before this Court, giving finality to the decree passed by the Trial Court whereby her suit was dismissed. Mst. Basri, while withdrawing her revision petition filed before this Court did not obtain any permission for filing fresh suit as needed under Order XXIII, Rule 1(2)(b)
C.P.C. Her present suit is for declaration but it is obvious that in every suit an implied declaration whether prayed or not, is involved because a Court trying a suit for permanent injunction cannot grant decree in favour of the petitioners unless and until, it holds them to be owner of the property subject of suit, In earlier suit of Mst. Basri an implied declaration was also involved thus, second suit on the same cause of action was not maintainable in view of provisions of Order XXIII, Rule 1(3)
C.P.C, because entitlement of Mst. Basri to the roof of the shop was determined in the earlier suit.
12. Mst. Basri, besides asserting her title to the roof of the shop, also claimed that award dated 28.4.1983 delivered by the arbitrator on a reference dated 25.4.1983 is illegal, void and fraudulent.
Section 33 of the Arbitration Act, 1940 lays down that any party to an arbitration agreement desiring to challenge the existence or validity of an arbitration agreement or an award, shall apply to the Court who shall decide this question. The Arbitration Act is a complete code in it and provide a mechanism for resolving disputes touching the reference to the arbitrators, the award and the judgments/orders passed thereunder under, which are appealable under its provision of section
39. Mst. Basri by deserting her remedies under the Arbitration Act, 1940 filed a regular civil suit but the same was barred under section 32 of the Act (ibid) which lays that not withstanding any law for the time in force, no suit will lie on the ground whatsoever for a decision upon the existence, effect and validity of Arbitration Act or award and at the same time, no arbitration agreement or award was to be set aside, amended, modified or in any way effected otherwise than, as provided in the Arbitration Act. The Honorables Supreme Court in similar circumstances, mandated that suit to challenge validity of arbitration agreement or award is not maintainable, in the case of Muhammad Yasin Vs. Sheikh Hanif Ahmad and others (1993 PSC 349). I .Respectfully following the view of the Honorables Supreme Court and the bar contained in section 32 of the Arbitration Act, 1940 hold that suit of respondents No. 1 to 11 was not maintainable, Teuthis extent.
13. No doubt revision, petition filed by Mst. Basri before this Court was pending at the time of agreement to refer the dispute to the arbitrator and at the time of announcement of award dated 28.4.1983, as the revision petition was withdrawn by her on 17.5.1983. In view of provisions of section 21 of the Arbitration Act, 1940 it was obligatory for the parties to have the arbitration by intervention of the Court. Language of section 21 of this law read with its section 22 are mandatory in nature. An Honorables Division Bench of this Court in the case of Province of Punjab through Collector (supra) while interpreting provisions of section 21 held that where the initial reference is illegal, the defect cannot be cured by subsequent activity. In the case of Haji Anwar Ali and others (supra) it was held by this Court that pre-conditions of intervention of the Court for reference to arbitrator; pending suit, are mandatory as contained in the provisions of law under discussion and it has to be done through an application in writing. A similar view was taken in the case of Allah Bakhsh (supra) by this Court wherein it was held that parties can apply for an order to refer the dispute for arbitration through Court, where the suit be pending between them and arbitration, if any, without intervention of the Court would be violative of the Act, 1940. In this case the award without intervention of the Court was treated as compromise/ad judgment by the consent of the parties. Alike view was taken by the Singh High Court in the case of Abdul Mateen and 3 others (supra), concurring to the view which given by this Court in the case of Hashmat AN (Supra) and in the case of Asmatennessa Bibi (supra). Section 47 of the Arbitration Act makes all its provisions applicable to all arbitrations and to all proceedings thereunder, thus, I am constrained to hold that both, the arbitration agreement dated 25.4.1983 and award dated 28.4.1983 which were rendered without intervention of this* Court when revision petition of Mst. Basri was pending, are void, illegal, unauthorized and could not be made rule of the Court, thus, findings of the Appellate Court concerning those are affirmed. The result of these finding is that C.R. No. 1017-D/1999 is dismissed.
14. In view of the discussion above made, touching right of Mst. Basri over the roof of the shops in question, it is obvious that the shops were allotted to the original allottee without any restraint of the height of those and were transferred from bottom to sky where over Mst. Basri had no residential part which falls at the rear of the property and the roof did not include in her PTD as courtyard of her upper portion, as claimed by her in the plaint. The Appellate Court seriously misread evidence (Ex. P.3) and the matters noted in this judgment escaped his notice, hence, the judgment and decree so returned suffered from defect of misreading and non-reading of evidence, is tainted with material irregularities and illegalities, amendable to revisional jurisdiction thus, the same is not maintainable and consequently instant revision petition is accepted and appellate judgment and decree dated 6.5.1999 is set aside With the result that judgment and decree dated 21.9.1992 passed by the learned Civil Judge, Faisalabad shall stand revived and suit of respondents No. 1 to 7 (Mst. Basri) shall be deemed to have been dismissed. The parties are leaving to bear their own costs.