' MIAN HAMID FAROOQ, J.---The appeal filed by Ghulam Muhammad, under section 39 of the Arbitration Act, calls in question the order dated 18-2-1992, passed by the learned Civil Judge, Sargodha, whereby the learned Court refused to set aside the award dated 29-11-1985 and simultaneously made the said award rule of the Court, which was followed by a decree of the even date.
2. Facts leading to the filing of the present appeal are that the appellant and respondent No.1 appointed respondents Nos.2 and 3 as their arbitrators vide arbitration agreements, both dated 1- 8-1985 (Exhs.P.2 and P.3) and the Arbitrators after undertaking the arbitration proceedings announced the award on 29-11-1985 (Exh.p.1), through which they declared respondent No.1 as owner of the house and the appellant was directed to pay a sum of (sic) shall deliver the possession of the disputed house to respondent No.1 and to get the sale deed registered.
3. Pursuant to the above, Ghulam Abbas, respondent No.1, on 23-12-1985, filed an application under sections 14/17 of the Arbitration Act in the Civil Courts at Sargodha, requesting the Court that the award dated 29-11-1985, may be made rule of the Court and the decree be passed accordingly. On 30-1-1986, original award was filed in the Court, to which the appellant, Ghulam Muhammad, filed objections. Subsequently on 10-2-1986, the appellant separately filed an objection petition under sections 30/33 of the Arbitration Act before the Civil Courts, which was replied by respondent No.1, thereby praying for the setting aside of the award. The learned trial Court proceeded to decide these two applications together, culminating to the framing of the issues and the learned Civil Judge, after recording the evidence of the parties, including the two arbitrators (who appeared as P.Ws. 2 and 7), proceeded to dismiss the objection petition filed by the appellant under sections 30/33 of the Arbitration Act and simultaneously accepted the application, filed by Ghulam Abbas, respondent No.1, for making the award rule of the Court vide consolidated order dated 18-2-1992, hence, the present first appeal.
4. The learned counsel for the appellant has contended that the award dated 29-11-1985, rendered by the Arbitrators has not been registered according to the provisions of the Registration Act and as the arbitration proceedings were without intervention of the Court, therefore, the award was compulsorily registerable. He submits that, in fact, all the proceedings right from the very" begining were conducted by Mr. Muhammad Afzal Saleemi, Advocate, who even reduced the award in writing whereas he has no legal capacity/status to do this. It has further been added that the award is devoid of reasons, therefore, as per the provisions of section 26 of the Arbitration Act the same is not sustainable. Conversely, the learned counsel for the respondent No.1 has contended that this Court while hearing the appeal under the provisions of the Arbitration Act cannot sit as a Court of appeal, and, therefore, the entire case cannot be reappraised.
5. I have examined the award (Exh.p.l), which is admittedly, an unregistered document. The contention of the learned counsel regarding the non-registration of the award is amply supported by the record and this legal error is apparent on the face of record. Now the question arises that when an award is unregistered what would be its effect. The present award has admittedly, determined the rights/title of the parties in respect of immovable property. It has been held in Mst.
Farida Malik and others v. Dr. Khalida Malik and others 1998 SCM R 816 that an award, having been made without intervention of the Court, is compulsorily registerable, and if the same is not registered it will not operate to create/declare, assign or extinguish any right, title or interest qua the immovable property in favour or against the parties. Following the law declared by the Honourable Supreme Court, I am fortified in my views that the instant award, which obviously deals with the rights, title and interest of the parties qua the immovable property, is neither valid nor maintainable nor has any legal value, as such the said award does not create or extinguish rights, title and interest of the parties in the immovable property, therefore, the award could not have been made rule of the Court. The findings of the learned Civil. Judge in this regard are unsustainable under the law and exceptionable. The said judgment of the Honourable Supreme Court was followed by another judgment of the Peshawar High Court reported as Noor. Nabuwwat v. Moulvi Muhammad Noor Ali Khan 1999 CLC 1685, wherein the Honourable High Court relying upon Farida Malik's case supra came to the same conclusion that the award, which is made without the intervention of the Court, is compulsorily registerable.
6. Learned counsel for the contesting respondent has raised an objection that as the aforestated plea regarding non-registration of the award was neither taken in the objections nor urged before the learned Civil Judge by the appellant, therefore, the appellant is now precluded from raising the said plea at the appellate stage. Suffice it to say that since the appeal is a continuation of the proceedings of the suit and as the same is a legal objection, therefore, there is no bar for the appellant to raise the said legal objection in appeal, hence, the objection of learned counsel for respondent No.1 is unfounded and misplaced.
7. As regards the role played by Mr. Muhammad Afzal Saleemi, Advocate, it is clearly floating in the surface of record. From the in-depth examination of the record, it manifests that the award was, in fact, reduced into writing by Mr. Saleemi and bears his signatures on the second page of the award. The back page of the award also shows that the stamp paper of Rs.50, on which the award was written, was also purchased through the said learned Advocate. The matter does not end here.
Initially the application filed under sections 14/17 of the Arbitration Act was instituted by respondent No.1 through the same learned Advocate, who in the capacity of counsel signed at the bottom of the application. Power of attorney, which was executed by Ghulam Abbass in favour of Mr. Muhammad Afzal Saleemi, Advocate, is also on record. The quantum of interest of the said Advocate, can be gauged from another fact that he appeared as P.W.1 as one of the witnesses on behalf of Ghulam Abbas, respondent No.1, wherein he specifically admitted that he prepared the award. The above narrative would sufficiently show and I have no doubt in my mind in coming to the conclusion that the real person behind the scene and instrumental to all the proceedings culminating to the passing of decree was Mr. Muhammad. Afzal Saleemi, Advocate, who was participating at all stages in all the proceedings and that is sufficient to show the misconduct on the part of the arbitrators. The award dated 29-11-1985,ought not to have been made rule of the Court on this count too.
8. Another glaring aspect of the case is that the award is devoid of sufficient reasons and as such is hit by the provisions of section 26-A of the Arbitration Act. I have examined the award in order to find out whether the same contains any reasons or not. The arbitrators after narrating the respective stances of the parties immediately jumped to the conclusions that the plea of Ghulam Abbass, respondent No.1, is correct without giving any reasons in arriving at such a conclusion. The arbitrators comprehensively failed to give any reasons. This plea was although taken before the learned Civil Judge, but the learned Judge in complete oblivion of the law on the subject proceeded to hold that the award does not (sic) arbitrators. This approach of the learned Civil Judge is, least to say, casual and in complete oblivion of the law on the subject.
9, In view of the above narrative, I am of the considered view that the arbitrators committed misconduct in announcing the award, which is found to be suffering from patent legal infirmities/defects, which, of course, vitiate the award itself. The learned Civil Judge, who made the award rule of the Court completely ignored all the aforestated facts and although recorded number of witnesses, but failed to take into consideration all the aforesaid legal objections going to the root of the matter which are sufficient to set aside the award. In the circumstances, the order dated 18-2-1992, passed by the learned Civil Judge, Sargodha, is exceptionable and calls for interference.
For the foregoing reasons and findings, the appeal is accepted, order dated 18-2-1992, passed by the learned Civil Judge and the, consequent decree of the even date, which are not sustainable under the law, are hereby set aside. The result would be that the award dated 29-11-1985, announced by the Arbitrators shall not operate to create, assign or extinguish right, title or interest of the parties qua the immovable property, made subject-matter of the award. Parties are left to bear their own costs.