SH. HAKIM ALI, J.---Ali Muhammad respondent No.3 had filed a suit for grant of permanent injunction, against Tariq Hussain and Haji Nazir Ahmad, the writ petitioners, in which prayer for Ali Muhammad, plaintiff was that Tariq Hussain and Haji Nazir Ahmad, defendants be restrained from interfering into his owned brick kiln, situated in Chak No.3/WB, Tehsil and District Vehari. Tariq Hussain had also instituted a suit against Ali Muhammad, Abdul Ghani and Haji Nazir Ahmad, for obtaining declaration to the effect that he was co-partner of brick kiln, which was constructed upon the lands of Ali Muhammad on the basis of an agreement dated 28-11-1991. It was further prayed in that suit that refusal to admit the plaintiff as co-partner by defendants Nos.1 and 2 was illegal and unlawful. Permanent injunction was also prayed for. While Haji Nazir Ahmad filed a suit for rendition of accounts against Ali Muhammad and Tariq Hussain on 3-4-1995. All the suits were contested by filing written statements by the respective defendants to the suits. On 15-11-1994 two suits titled "Ali Muhammad v. Tariq Hussain and another and Tariq Hussain v. Ali Muhammad and 2 others were consolidated by the order of learned Civil Judge. While the third suit with title of Haji Nazir Ahmad v. Ali Muhammad and another was amalgamated on 26-9-1995 and the proceedings were directed to be conducted in the suit instituted by Ali Muhammad. On the same day i.e. 26-9- 1995, all the parties requested to the learned trial Court that they wanted to get the controversy resolved through the intervention and decision of Arbitrators. The learned trial Court accepted their prayer and granted adjournment to the parties to propose the names of Arbitrators. On 3-10-1995, all the three parties had proposed the names of their respective Arbitrators. Ali Muhammad, plaintiff appointed Faiz Muhammad, Bajwa, while Tariq Hussain and Haji Nazir Ahmad, defendants Nos.1 and 2, had proposed the names of Muhammad Mansha and Haji Muhammad Hussain as their Arbitrators respectively. Statements of all the parties to this fact were also recorded by the learned trial Court, which statements were signed by them also. On the aforesaid date, the Arbitrators were appointed and the dispute was referred. Muhammad Mansha and Haji Muhammad Hussain, Arbitrators submitted their joint decision, while Faiz Muhammad Bajwa, Arbitrator, appointed by Ali Muhammad, filed his separate decision on 28-3-1996. When all the Arbitrators were ready to submit their decisions, having known and predicting the decisions of the Arbitrators going against him, Ali Muhammad, plaintiff filed an application on 25-3-1996 before the learned trial Court for substitution of his Arbitrator. Learned trial Court dismissed the application on 7-5-1996 while the revision filed by Ali Muhammad before the learned Additional District Judge, Vehari was accepted on 2-9-1996 by the learned Additional District Judge who passed an order cancelling appointment of Arbitrators and holding the appointment and proceedings of Arbitrators to be illegal and unlawful because the application of section 21 of the Arbitration Act, 1940 was not filed by the parties to the proceedings. Aggrieved from that order, dated 2-9-1996, passed by learned Additional District Judge, present writ petition has been filed.
2. Respondent No.3 Ali Muhammad was tried to be served through all the available means but upon his refusal to accept service and non-appearance despite substituted service through affixation of notice on the outer door of his house, having been effected, he was ultimately proceeded against ex parte on 28-7-2004.
3. Learned counsel for the petitioners submits that the impugned order is illegal and unlawful as the application of section 21 of the Arbitration Act, 1940 has wrongly been made by the learned- Revisional Court. It has further been argued by the learned counsel that no such prayer was made by respondent No.3 in his revision. The unsought for relief was granted to the revision-petitioner by passing the impugned order in the revision.
4. After considering the arguments of the learned counsel and from the perusal of the record, I have found that the learned Revisional Court has not correctly applied the provision of section 21 of the Arbitration Act, 1940. The reference of dispute to the Arbitrators and their appointment even at the revisional stage was not disputed by any of the parties to the proceedings. Therefore, the impugned order which has upset the appointment of Arbitrators and the reference of dispute to them, without the prayer made by Ali Muhammad, respondent cannot be legally held valid.
Learned Court has passed an order and granted a relief which was never prayed for by any party to the proceedings. Even the provision of section 21 of the Arbitration Act, 1940 does not mandatorily provide that there must be filed an application in writing in the Court by the parties of the suit. To appreciate the interpretation of the words of the section, it is necessary that the section itself be reproduced in the instant judgment: "Section 21 Parties to suit may apply for order of reference.---Where in any suit all the parties interested agree that any matter in difference between them in the suit shall be referred to arbitration, they may at any time before judgment is pronounced apply in writing to the Court for an order of reference Material words used in the section and requiring exegesis from this Court have been underlined by me.
5. It is an admitted fact in the instant case, that all the parties had agreed to refer their disputes for resolution through arbitration. In the presence of this agreement, they had requested the Court to grant an adjournment, so as they could submit the names of their respective proposed Arbitrators vide order, dated 26-9-1995. On the next date of hearing, all the parties along with their counsel had appeared and proposed their Arbitrators. The statements of learned counsel as well as the parties were recorded by the learned trial Court which were signed by them also. Even in the application submitted by Ali Muhammad, plaintiff, he had not denied this agreement having not been arrived at amongst the parties for appointment of Arbitrators.
6. The question arises as to whether the statements recorded by the learned trial Court and the appointment made upon the proposals of the parties could be treated as compliance of provision of section 21 of the Arbitration Act or not? Reference can be made to the following judgments:
(i) Mahabir v. Manohar Singh AIR 1924 All. 540; (ii) Waliullah v. Bhaggan AIR 1925 Oudh 269; (i.e)
Jagmohan v. Suraj Narain AIR 1935 Oudh 499 and (iv) Ghisalal Sohanlal v. Ram Pershad Motilal AIR 1953 Ajmer 58.
Mahabir v. Manohar Singh in AIR 1924 All. 540 it was laid down that when statements of the parties and their pleaders are recorded by a Court, it has to be considered an agreement in writing and would supply the place of a written application by the parties or their pleaders. Waliullah v.
Bhaggan in AIR 1925 Oudh 269 it was held that an award could not be set aside merely because the reference to Arbitrator was not made in writing. While Jagmohan v. Suraj Narain in AIR 1935 Oudh 499 it was decided that requirement of applications in writing was not necessary, and it was to be considered as directory and no mandatory. In that case also it was held that when the record of the agreement was found in a Court's proceeding, bearing the signatures of the parties to refer the dispute to the Arbitrator, it would constitute sufficient compliance. In Ghisalal Sohanlal v. Ram Pershad Motilal in AIR 1953 Ajmer 58 it was clearly declared that when the statements of the parties and their counsel were recorded by the Court and those were signed by the parties, then it would amount to an application for reference to arbitration in writing and the compliance of provision of section 21 of the Arbitration Act.
7. So, all these decisions have assisted me to form an opinion that application in writing from the parties was not an essential ingredient or requirement. It could be waived in the circumstances when the parties before the Court requested for reference of a dispute to the Arbitrator/ Arbitrators and had made statements before the Court, which are signed by them or their pleaders, then it would tantamount to making a reference in writing to the Court concerned and in consonance with the provision of section 21 of the Arbitration Act. Waliullah v. Bhaggan in AIR 1925 Oudh 269 a beautiful sentence was used "when the parties had preferred amateur Court to a professional Court, they had taken the risk that the decision might not be technically perfect". So, when the parties had themselves requested the Court to shift its proceedings from law Courts to layman Arbitrators, then their choice must be respected as they had felt satisfaction in that manner and method of adjudication. Technicalities of small nature should not hinder their choice of forum for adjudication of their dispute. In these circumstances, mere technical and formal defect of not submitting/filing an application in writing was not to be taken as major irregularity or illegality so as to upset the appointment of Arbitrators and their decisions thereafter.
7. Therefore, by accepting the writ petition, the impugned order is held illegal and unlawful.
Consequently, it is set aside and the learned trial Court is directed to proceed with the case in accordance with law.