' MAULVI ANWARUL HAQ, J.---On 30-3-1983 one Mian Imam Din son of Ahmad Din filed an application under section 14 of the Arbitration Act, 1940. It was stated therein that Bashir Ahmad son, Mst. Begum Bibi, daughter, of Allah Ditta and Abdul Khaliq son of Nazir Ahmad, (present petitioner) through his wife Mst. Pukhraj Janjua as general attorney, appointed him as arbitrator vide arbitration agreement, dated 7-2-1983 and 11-3-1983, to decide their dispute regarding the property mentioned in para. 1 of the application; that acting as arbitrator he made and published his award, dated 27-3-1983. He accordingly made a prayer that the award be filed in Court. He appended the arbitration agreement as well as award with the said application. Notices were issued in this application for 27-4-1983. An application was filed by the said Imam Din, arbitrator, on 14-4-1983 through Muhammad Sadiq, Advocate, Kharian stating that the parties have entered into compromise and a decree be passed accordingly. The file was requisitioned by the learned Trial Court. A written reply purporting to be on behalf of the said Bashir Ahmad, Mst. Begum Bibi and Abdul Khaliq through his general attorney Mst. Pukhraj was filed stating that there is no objection if a decree is passed after making the award rule of Court. The statement of said counsel and Bashir Ahmad, respondent No,1 was recorded. On 16-4-1983 the award was made rule of Court and decree sheet was prepared.
2. On 25-8-1983 the petitioner, Abdul Khaliq, filed a suit seeking declaration that the arbitration agreement, award, decree and the said proceedings are void as he had never authorized his wife to enter into an arbitration agreement. This suit was contested. The plaint was rejected on 2-2-1987 on the ground that the suit is not maintainable and an application under section 12(2), C.P.C. Was to be filed. A first appeal filed against the said order was dismissed by the learned ADJ, Gujrat on 22-4-1987.
3. On 17-5-1987 the petitioner filed an application under section 12(2), C.P.C. For the same relief.
According to the contents of this application Nazir Ahmad, late father of the petitioner, purchased 179 kanals agricultural land in village Chahkori Sher Ghazi, Tehsil Kharian District Gujrat through various sales. He also constructed a bungalow B.II.299. These were exclusive properties of his father and when he died on 16-9-1982 he inherited the same. Another parcel of land measuring 13 kanals in the same revenue estate was inherited by the said Nazir Ahmed brother of Bashir Ahmad, respondent No,1 and sister Mst. Begum Bibi from their late father Allah Ditta. In 1982 he was working for gain inBaghdad and was to leave the country when Bashir Ahmad, respondent No,1 compelled him to get the said ancestral property partitioned. Respondent No,1, himself got drafted arbitration agreement, dated 6-11-1982 but later on he himself rescinded it and the petitioner left for Baghdad.
When the petitioner was out of country respondent No,1 prepared an arbitration agreement, dated 11-3-1983 and obtained signature of Mst. Pukhraj, his wife, through misrepresentation. In collusion with Imam Din, who was named as arbitrator an award was got published on 27-3-1983. The arbitrator himself filed award in the Court and the same was made rule of the Court. He then referred to the civil suit filed by him. The primary grounds were that the attorney was not authorized to enter into any arbitration agreement, the arbitrator misconducted the proceedings and did not even issue a notice to his wife. The application was resisted by respondent No,1 . I find that the detail of the properties and manner of its acquisition was not at all questioned in this written reply.
However, according to him Imam Din was duly appointed as an arbitrator by wife of the petitioner and he gave a valid .Award. An application was also filed for condonation of delay. The application was dismissed as, being barred by time by the learned trial Court on 4-1-1988. A revision filed by the petitioner was allowed by the learned ADJ, Gujrat on 25-4-1989, who remanded the case with a direction to the learned trial Court to frame all the issues and then decide the same after recording evidence. After remand, the learned trial Court framed the following issues:-
(1) Whether the respondent Abdul Khaliq son of Karam Ali has violated any order of this Court: if so, with what effect? OPA
(2) Whether the judgment and decree, dated 16-4-1983 are liable to be set aside under section 12(2) on the grounds as alleged in this application? OPA
(3) Whether the respondent No,5 is not a necessary party? If so, its effect? OPR
(4) Whether the respondents are entitled to special costs? If so, to what extent? OPR
(5) Whether the application is time-barred? OPR
(6) Whether this application is not duly verified? If so, its effect? OPR
(7) Whether the applicant is estopped by his own conduct and words to file this application? OPR
(8) Whether this application is liable to be rejected under section 11 of C.P.C.? OPR
(9) Whether this application is not maintainable in its present form? OPR
(10) Whether this application does not disclose any cause of action? OPR
(11) Relief.
' The evidence of parties was recorded. Issues Nos.2, 3, 5 and 7 were answered against the petitioner and the application was dismissed by the learned Trial Court on 23-9-1997. A revision filed by the petitioner had been dismissed by the learned ADJ, Kharian on 2-2-1998.
4. The learned counsel for petitioner contends that the power of attorney executed by the petitioner in favor of his wife Mst. Pukhraj did not at all authorize her to appoint an arbitrator or to refer the matter to the arbitrator, she, therefore, had no lawful authority to appoint Imam Din as an arbitrator. The learned counsel further contends that it is an admitted position on record that the properties exclusively owned by the petitioner were made subject-matter of the said agreement and subsequent award and decree based thereon and there is no dispute whatsoever that the agricultural land and the house built thereon were exclusively owned by the petitioner having inherited it from his father Nazir Ahmad. Regarding limitation he contends that the suit was filed on 25-8-1983 notwithstanding the plea that the suit be treated as an application under section 12(2), C.P.C. The plaint was rejected and so was the case with the first appeal. Thereafter, without loosing any time he filed an application under section 12(2), C.P.C. And in the circumstances of case sufficient cause stood made out for condonation of delay. The learned counsel has relied upon the cases of Noorul Amin and another v. Muhammad Hashim and 27 others (1992 SCM R 1744) and Muhammad Yasin and Sh. Hanif Ahmad and 4 others (1993 SCM R 437).
5. The learned counsel for respondents, on the other hand, supports the impugned orders with reference to agreement (Annexure-A to this writ petition). It is dated 6-11-1982 and is entered directly between Bashir Ahmad, respondent and Abdul Khaliq petitioner. He relies on the observation of this Court made in order, dated 12-1-1987 passed in C.R. No,1836 of 1986 (Exh.R.3) while dealing with the revision arising out of matter of temporary injunction in the said civil suit initially filed by the petitioner. He further contends that the award was acted upon as the petitioner sold some of the properties allocated to him in the said award. The learned counsel has referred to the case of Ch. Muhammad Saleem v. Muhammad Akram and others, (PLD 1971 SC 516).
6. I have gone through the copies of records with the assistance oflearned counsel for parties. I have already narrated above the material contents of the said application and its reply. As noted by me above there was no denial of the details of properties and manner of acquisition particularly purchase of the suit-land by the late father of the petitioner and his inheriting the same. The power of attorney executed by the petitioner in favor of his wife Mst. Pukhraj is Exh.A.10. I have examined the said document. It narrates that Abdul Khaliq, petitioner, is exclusive, owner of the properties mentioned therein including the agricultural and in the said revenue estate having inherited from his late father Nazir Ahmad Janjua. Since he was working abroad for gain, therefore, it was not possible for him to deal with the properties moveable or immovable and also the bank accounts, therefore, he appointed Mst. Pukhraj as attorney to manage and control the said properties, to alienate the same, to rent it out, receive rent, execute sale-deed, to receive consideration, mortgage, receive mortgage money, to act and appear on his behalf in connection with the suits brought in Court. The power of attorney does not at all spell out any authority to refer the matter to arbitration or to appoint an arbitrator. Arbitration agreement, dated 11-3-1983 is Exh.A.8. Parties thereto are Bashir Ahmad, respondent No,1, his sister Mst. Begum Bibi and Abdul Khaliq petitioner through his wife as general attorney. Award, dated 27-3-1983 given by Imam Din, arbitrator is Exh.A.9. This document clearly indicates that the award is being given pursuant to arbitration agreement, dated 11-3-1983. Petitioner appeared as A.W.2 and categorically narrated that neither the aforesaid Imam Din was appointed as 'an arbitrator nor his wife was authorized to do so. He was cross-examined at length. It was not at all suggested to him that actually the arbitration agreement was executed by him on 6-11-1982 and that Imam Din proceeded on the basis of said agreement. Bashir Ahmad, himself, appeared as R.W.1 and when confronted opined that the arbitrator proceeded on the basis of agreement that was executed by Mst. Pukhraj and this agreement was executed on 11-3-1983. He also admitted in the very first line of cross-examination that Nazir Ahmad had purchased 200 kanals of land and there was no ancestral land whatsoever.
He also admitted that after purchase of the land Nazir Ahmad obtained possession. He built a bungalow, servant quarters and also installed tubewell. He also explained that two kanals plot in Lalamoosa G.T. Road is their ancestral property, he and his brother have 16 marlas each and their sister has 8 marlas. 8 marlas out of that plot was gifted to petitioner by his sister. It will, thus, be seen that it stands admitted on record that the agricultural land, half of which was given to respondent No,1 by the said arbitrator exclusively belonged to Nazir Ahmad, late father of the petitioner having been inherited by the latter. Power of attorney also narrates that the land is exclusively owned by him. There is nothing on record that any dispute existed regarding the said land between theparties. I, therefore, do find that the entire proceedings are without lawful authority. There is no arbitration agreement and as such there was A no question of arbitration proceedings, award or the decree pursuant thereof.
7. The said observation of this Court being relied by the learned counsel with reference to the judgment Exh.R-3 would be of no consequence as the findings have been expressed on prima facie basis while dealing with the matter of temporary injunction. It need not be said that the said observations are never to be considered while. Deciding the lis after recording evidence. Even otherwise, it is respondents' own case that the arbitration proceeding commenced and the arbitrator acted on the basis of agreement Exh.A.8 for which Mst. Pukharj had no authority. The learned Courts below have acted on conjecture and surmises by holding that it would be assumed that Mst. Pukhraj had been given authority to enter into the arbitration agreement and to refer the matter to the arbitrator and that too when there was no dispute regarding the property exclusively owned by the petitioner with reference to which power of attorney was given.
8. Now coming to the question of limitation. The learned ADJ has observed that an independent application under section 14 of the Limitation Act has not been filed and as such the application filed under section 5 of the said Act of 1908 could not be considered.. To my mind the learned ADJ has acted without jurisdiction while making the said observation. As noted by me above the suit was filed on 25-8-1983, plaint of which was rejected on 2-2-1987 (Exh.PA.13). The appeal was dismissed by the learned ADJ Gujrat on 22-4-1987 (Exh.A.10). An examination of this judgment would show that it was prayed on behalf of the petitioner that the suit be treated as an application under section 12(2), C.P.C., but the prayer was not allowed. Almost immediately after the said decision the application was filed. All these facts were to be considered by the learned ADJ while deciding the matter of condonation of delay, but it was not done. The said prayer which was made at the earliest is fully supported by the said judgment in case of Noorul Amin and another v.
Muhammad Hashim and 27 others (1992 SCM R 1744). Facts of the case of Muhammad Yasin and Sh. Hanif Ahmad and 4 others (1993 SCM R 437) are also identical to the present case. The writ petition is accordingly allowed. Both the impugned orders are declared without lawful authority and are set aside. Result would be that the application tiled by the petitioner under section 12(2), C.P.C. Shall stand accepted. With no orders as to costs.