Jehana and four others had filed an application under Section 14 of the Arbitration Act, 1940, against Mst. Parveen and Ata Muhammad who were impleaded as Respondents No, 1 and 2 before the learned Senior Civil Judge, Sargodha. In that application, prayer of the applicant Jehana and others was that Respondent No, 1 Mst. Parveen was owner of land measuring 239 kanals, situated in Jora Sakesar, Tehsil and District Sargodha, who had sold out the same to the aforementioned applicants arid had received the amount of consideration. Afterward, an arbitration agreement was executed as dispute had arisen between the parties. Respondent No, 2, Ata Muhammad son of Allah Din was appointed as Arbitrator through an agreement dated 16.6.1979. The aforementioned Arbitrator namely -Ma Muhammad decided the dispute through his award dated 18.6.1979, in favour of Jehana and others, the applicants. So, through the abovementioned application, Jehana and others prayed before the learned Senior Civil Judge, Sargodha for making the above mentioned award dated 18.6.1979, a Rule of the Court and passing a decree upon it. The application was accepted on 11.2.1980, by the learned Civil Judge, and award was made a Rule of the Court. It is pertinent to point out that upon the statement of special attorney namely Muhammad Bashir, the award was made Rule of Court on the above noted date. Afterward, on 7.2.1981, Mst parveen filed a petition under Section 12(2) of the CPC against the aforementioned decree dated 11.2.1980 by raising the plea that aforesaid decree was based on fraud because arbitration agreement was never executed by her. It was also pleaded in the application that she had not appointed any special attorney for making a conceding statement to make award of arbitration a Rule of Court.
This application was contested and was rejected on 7.11.1987. For setting aside of that order, revision was filed by Mst. Parveen before learned Addl. District Judge, Sargodha which was accepted on 2.1.1993. Aggrieved from that order, writ petition Bearing No, 233 of 1993 was filed by Jehana and others, in this Court. On 2.4.1994, the aforesaid writ petition was disposed of with the consent of the parties by this Court. The case was remanded to the learned Civil Judge, with direction to decide the petition under Section 14 of the Arbitration Act 1940, afresh in accordance with law which was filed by Jehana and others after considering it to be pending. That application was accordingly, taken up by learned Senior Civil Judge. During the pendency of proceedings of that petition, an application was filed by Jehana and others, that Mst. Parveen had not filed objections within period of limitation as provided by Article 158 of the Limitation Act, 1908, therefore, petition under Section 14 of the Arbitration Act, by Jehana and others might be accepted. That application was dismissed by learned Senior Civil Judge, on 28.11.2000. Aggrieve% from that order, a revision was filed before learned Addl. District Judge, by Jehana and others, who accepted the same on 1.7.2004. Hence, the present writ petition.
2. Learned counsel for the petitioner submits that:--
(i) Mst. Parveen, the writ petitioner had filed an application under Section 12(2) of the CPC against the decree dated 11.2.1980 (which had made the Award, a Rule of the Court). It was filed on 7.2.1981.
This petition under Section 12() of the CPC, could be considered as having been filed as an objection petition against the award filed under Section 14 of the Arbitration Act. Therefore, this petition which had not contained the reference to,Section 12 (2) of the CPC, could be considered and treated by learned Addl. District Judge, to be an objection petition against the disputed award.
(ii) On 7.4.1994, this Court had decided Writ Petition No, 233 of 1993 in which it was held that evidence which was already brought on record upon above mentioned application under Section 12(2) of the CPC might be considered by the learned Civil Judge while deciding the application of Jehana and others. So, in these circumstances, before further proceedings could be conducted, evidence was to be recorded- upon application filed by writ petitioner. Complete evidence was necessary to be taken by the learned Court below.
(iii)Learned trial Court was also directed to decide as to how much stamp duty was payable on the award but this aspect was not taken into consideration while deciding the revision by learned Addl. District Judge on 1.7.2004.
(iv) Learned counsel for the petitioner further argues that Muhammad Yousaf, Respondent No, 5 was minor and on behalf of minor, agreement for appointment of Arbitrator could not be executed, therefore, agreement was void in law.
3. Learned counsel for the respondents, Jehana and others, submits that--
(i) After Writ Petition No, 233 of 1993 was decided on 2.4.1994, learned counsel for Mst. Parveen had appeared on 15.2.1995 before learned Senior Civil Judge, Sargodha as the file of the case of learned trial Court was received by learned Senior Civil Judge, on 24.1.1995 after remand from this Court.
Mst. Parveen had filed objections against award before learned Senior Civil Judge, which were clearly barred by time under Article 158 of the Limitation Act. Learned counsel places reliance on PLD 1996 S.C. 797 (Superintending Engineer Communication and Works Highway Circle, Kohat vs. Faiz Muhammad & Co. Akora Khattak.
(ii) As regard the other petition filed on 7.2.1981, learned counsel submits that this application could not be treated to have been filed against award because that was an application filed against the judgment and decree dated 11.2.1980, which decree was passed by learned Civil Judge, Sargodha, after accepting application filed by Jehana and others under Section 14 of the Arbitration Act. In other words, by elaborating his arguments, learned counsel states that the application was not filed against the award dated 18.6.1979, therefore, that application filed by Mst. Parveen could not be treated objection petition against award.
(iii) Award dated 18.6.1979, was filed before learned Civil Judge, on 11.2.1980 while Mst. Parveen had filed an application for setting aside decree dated 11.2.1980, on 7.2.1981. To further clarify his arguments, learned counsel submits that at least Mst. Parveen had got knowledge of the award on 7.2.1981. But she had filed the petition for setting aside decree dated 11.2.1981, and had not filed any objection against the award at that juncture. The petition which was filed against the award on 28.3.1995, after the remand, was liable to be rejected also because it was filed beyond the period of limitation. Therefore from 7.2.1981, if the knowledge of the petitioner is considered to have accrued to her with regard to making of the award, objection petition filed against that award on 28.3.1995 was also badly time barred. Accordingly, learned Addl. District Judge, had rightly accepted the revision petition because it was incumbent upon the writ petitioner to file objections to the award within 30 days from the date of service or at least from the date of knowledge of the award.
Learned counsel has referred for this purpose PLD 1994' Karachi 127 (Messers Shafi Corporation Ltd. vs. Government of Pakistan through Director General of Defence Purchase Ministry of Defence Karachi).
(iv) As regard question of minority, learned counsel submits that no doubt Muhammad Yousaf was minor at the time of execution of arbitration agreement but he was beneficiary from that agreement/contract of arbitration, therefore, it was his option to get award set aside if he was aggrieved to it. As he has not challenged the validity and legality of award, rather is supporting it, therefore, Mst. Parveen, petitioner on his behalf cannot raise any such objection.
4. Arguments have been heard and record perused.
5. Article 158 of Limitation Act is re-produced as follow for ready reference:- "Third Division--Applications"
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158. Under the Thirty daysThe date of service of the Arbitration Act, 1940 to set aside an award or to get an award remitted for reconsiderat- ion. notice of filing of the award.
6. According to that and keeping in view dictum laid down in PLD 1994 Karachi 127 (Messrs Shaft Corporation Ltd. vs. Government of Pakistan through Director General of Defence Purchase, Ministry of Defence Karachi) and PLD 1996 SC 797 (Superintending Engineer, Communication and-Works Highway Circle, Kohat vs. Mian Faiz Muhammad and Co. Akora Khattak) Mst Parveen, the writ petitioner was bound to file objection petition against award within a period of 30 days from the date of service of notice of filing of award, or at least from the date of having notice of the filing of the award or gaining the knowledge that award had been filed. Petition filed on 7.2.1981 by Mst.
Parveen cannot be considered to have been filed against award because in the prayer-of that petition, it was clearly mentioned that judgment and decree which had made the award a Rule of Court might be set aside. Therefore, in that petition, objection could not be considered to have been raised with against the validity or unsoundness of the award or for its setting aside. If I accept the aforementioned application as objection petition against award, even then in that petition, Mst.
Parveen had not mentioned the date when she had obtained knowledge of the filing of award by the Arbitrator or the filing of it in Court. In that application, no source of knowledge, and date was mentioned. Application dated 7.6.1981, if it is presumed to have been filed against the award, even then it was barred by limitation because of lack of above noted details and particulars in the application. It is settled principle of law that to get exemption from a period of limitation or its condonation, the party who claims such exemption/condonation should mention and explain the date of knowledge when it was obtained by him if service was not effected upon him or he was prevented due to any other sufficient cause to apply within prescribed period of limitation.
Therefore, this petition dated 7.2.1981 cannot be considered to have been filed within prescribed period of limitation.
7. There is another aspect of the case. If petition dated 7.2.1981 was an objection petition against award dated 18.6.1979, then what was the need for filing of another objection petition on 28.3.1995 against the award. In other words, writ petitioner was himself aware and conscious of this fact that earlier petition dated 7.2.1981 was not filed against the impugned award dated 18.6.1979, therefore, objection petition against award was filed on 28.3.1995. It is also an admitted fact that Abdul Rashid, learned counsel had appeared on behalf of Mst. Parveen on 15.2.1995, before learned Senior Civil Judge, to contest the proceedings being conducted upon award. So, the award was undisputedly in the knowledge of Mst. Parveen for which she had appointed the learned counsel. In these circumstances, it was the duty of Mst. Parveen to file objections against the award while filing power of attorney on 15.2.1995. But she filed objection petition after more than one month on 28.3.1995 from the filing of power of attorney in the Court. From the date of entering into Court up to the filing of the objections to the award, why this period of more than one month was allowed to pass, no where it has been explained. So, this petition is also barred by limitation.
8. To support the above noted finding, I have dug out myself the precedent case law i,e, NLR 2001 UC 37 (Airports Development Agency Ltd. vs. M/s. M.Y. Corporation and others), wherein it has been held that when objection to award was filed after prescribed period of limitation and no application for condonation of delay was also filed, those objections were not entertained and it was dismissed, while award was made as rule of Court.
9. As regards the question of minority of Muhammad Yousaf raised by learned counsel, it is settled law that contract/agreement with a minor can be held void if it is executed against the interest of minor, but if agreement/contract has been made by any person for the interest of minor and minor is going to obtain any benefit from it, then it is the discretion/sweet will of the minor to accept or reject it when he becomes major. Muhammad Yousaf minor was granted land through and in consequence of arbitration agreement/award, therefore, it was his option/choice to ratify or reject it, who had not rejected it -.rather had accepted it. The writ petitioner has got no locus standi to challenge it. She cannot be allowed to speak on behalf of minor, who had accepted the award having been made in his favour. Therefore, this writ petition has got no merit to be accepted, hence, dismissed.