' SH. AZMAT SAEED, J.--- This appeal is directed against order, dated 20-1-2006 whereby the application under section 34 of the Arbitration Act, 1940, filed by the present appellants seeking stay of the suit filed by the respondents was dismissed.
2. Brief facts leading to the filing of this appeal are that the respondents filed a suit against the appellants alleging therein that in between the properties owned by the two parties, there was a common passage which, it is alleged was owned by neither of them. It was further alleged that agreement based on the alleged false claim of appellant No,1 regarding the ownership of the said common passage was executed on 1-1-1990, whereby, the appellant obtained a right of access from the property of the respondents in lieu of the said common passage used by the respondents.
It is alleged in the plaint that the appellants have encroached upon he said common passage causing a financial loss to the respondents. In addition to the claim of the damages, a declaration was also sought by way of the said suit by the respondents that an agreement, dated 1-1-1990 was a result of fraud and misrepresentation; and the property in dispute was a common passage; and the appellants be restrained from encroaching thereupon; and further be directed to remove the existing encroachment. The present appellants entered appearance and filed an application under section 34 of the Arbitration Act, 1940 based on the arbitration clause, which admittedly is incorporated in the agreement dated 1-1-1990. The said application was resisted by the respondents. The trial Court vide the impugned order dismissed the application filed by the appellants under section 34 of the Arbitration Act, 1940.
3. Learned counsel for the parties have been heard and the record appended with this appeal perused.
4. It is contended by learned counsel for the appellants that merely because an agreement is challenged on the ground of fraud and misrepresentation, it is not necessarily imply that in every such case the arbitration clause in the said agreement is unenforceable. In support of his contentions the learned counsel has placed reliance on the judgment reported as Haji Soomar Haji Hajjan v. Muhammad Amin Muhammad Bashir Ltd. PLD 1981 SC 129. It is also contended that in pith and substance the dispute raised through the suit in question pertains to the use of the alleged common passage, which squarely falls within the ambit of the arbitration clause.
5. Learned counsel for the respondents has controverted the contentions raised on behalf of the appellants. It is contended by learned counsel for the respondents that the suit is beyond the scope of arbitration clause, which forms part of the agreement, the legality whereof is in dispute in the said suit. The learned counsel for the appellants rebutted the contentions and submitted that in fact the respondents had themselves agreed to and participated in the arbitration proceedings but were later abandoned, therefore, the respondents are estopped from now denying the arbitration clause.
6. A perusal of the impugned order reveals that none of the contentions raised by the parties were considered or adjusted upon. No ground as available under the law for acceptance or rejection of the application under section 34 of the Arbitration Act, 1940 has been A considered or applied to the facts and circumstances of the case. The real matter in controversy had not been dilated upon or decided. Consequently, the impugned order is not sustainable under the law and is hereby set aside. As a consequence whereof the application under section 34 of the Arbitration Act, 1940 filed by the appellant shall deem to be pending before the trial Court, which is directed to decide the matter afresh. The parties shall appear before the trial Court on the 27th of September, 2006. The Trial Court shall finally decide the application filed under section 34 of the Arbitration Act, 1940 within 30 days thereof.
'This appeal is accepted and the case is remanded.