' The order impugned in the present revision has been passed by the Additional District Judge, Sargodha dated the 20th May, 1972, by which the order of the Civil Judge, Sargodha dated the 20th March, 1972 regarding the reference made to S. Nawazish Ali Shah having been withdrawn was affirmed.
2. Briefly the facts of the case are that the respondent filed a suit for the possession of land measuring 35 kanals situate in Mauza Dowana Kanju, Tehsil Shahpur, District Sargodha by way of exercise of right of pre-emption. The details of the transaction which was sought to be preempted is not necessary for the disposal of the present revision. However, it may be added that Ghaffar Ali Shah being the son of the vendor was also a pre-emptor and both the suits had been consolidated. On the 23rd July, 1971, the parties and their counsel made a joint statement appointing Syed Nawazish Ali Shah son of Syed Nasir-ud-Din, resident of village Jehanian, Tehsil Shahpur as a referee and agreed to be bound by his decision. Accordingly, the learned trial Court appointed the aforesaid Syed Nawazish Ali Shah as a referee and the notice issued to him to file the award on the 30th July, 1971. The aforesaid referee sent his decision on the 8th November, 1971, under an envelope and did not appear personally. The decision was to the effect that the land in dispute be divided to the extent of 50 % in favour of Nazar Hussain and the remaining half to Mumtaz Hussain, etc. On the 24th November, 1971, it was found that the decision received from the referee was not clear and the defendant No, 10 also objected that the referee had not made any decision about him. The learned trial Court in the circumstances thought it advisable to examine the referee in Court. Several adjournments were made, the details of which have been duly incorporated in the order of the learned Additional District Judge but the referee did not turn up with the result that the learned Civil Judge vide his order dated 20-3-1972 was pleased to revoke the reference as he came to the conclusion that the referee was intentionally avoiding making the decision and appearance in Court. The plaintiffs, however, made an application that the case be further adjourned for the attendance of the referee. The said application was dismissed. The respondents filed an appeal which was also dismissed by his order dated 20-5-1972 and this revision petition is directed against the said order of dismissal. The question for determination in this revision is whether the order dated 20-3-1972 passed by the Civil Judge, Sargodha revoking the reference was appealable. The answer to this question is not far to be sought as it did not fall under any of the sub-clauses of rule 1, Order XLIII A of the Civil Procedure Code. The appeal would be treated as a revision having been filed before the Additional District Judge and a second revision would be barred under section 115 of the Civil Procedure Code as amended by the Law Reforms Ordinance, 1972.
3. However, since the revision petition had been admitted for regular hearing, therefore, the merits of the case may also to be examined. It was contended before the learned Additional District Judge that the order of reference could not be rescinded and that the matter ought to have been decided on the basis of the reference already received or at least the aforesaid referee ought to have been examined in Court. In order to reply this question it will have to be first determined as to what was the nature of the order passed on the 23rd July, 1971, was it a reference under section 21 of the Arbitration Act or an agreement to the effect that the parties will be bound by the admission of a certain referee falling under section 20 of the Evidence Act. The question next requiring consideration would be whether the decision received from the referee was an award or his admission conferring any vested right in favour of any of the parties.
4. A perusal of the order dated 23-7-1971 clearly shows that the parties intended to refer the matter to aforesaid Nawazish Ali Shah as an arbitrator and the particular wordings of the said statement which are relevant are reproduced below:{{URDU TEXT}} ' Even the decision received from Syed Nawazish All Shah; he had termed himself as an Arbitrator.
The orders passed subsequent to '23-7-1971 and even the order-sheet show that the case had been adjourned after 23-7-1971 for the decision of the aforesaid referee to be received. It was only when the decision was found to be ambiguous and not dealing with the rights of one of the parties, namely, defendant No, 10 that the necessity of examining the aforesaid Syed Nawazish Ali Shah arose. To my mind, therefore, the intention of the parties was to appoint Syed Nawazish Ali Shah as an arbitrator for which the compliance under section 21 of the Arbitration Act was to be made. An application, in writing, signed by all the parties ought to have been made, which has not been done in the present case.
5. The learned counsel for the petitioner has relied on Sher Zaman Khan v. Noor Zaman Khan (1), wherein a distinction has been made between an "arbitrator' and a 'referee' in an elaborate judgment by my learned brother Mr. Justice Aftab Hussain, it has been held that it is the statement of the referee which is relevant under section 20 of the Evidence Act and an award is not a statement under the said provisions of the Evidence Act. It was, therefore, necessary in order to make Nawazish Ali Shah a referee there should have been an agreement to refer the dispute to him as such to be bound as per his statement. In the present case the order dated 23-7-1971 is neither an agreement to refer the dispute to arbitration nor to be bound by the statement of the referee. If Nawazish Ali Shah was to act as a referee and having been called in the proceedings several times and his failure would amount to refusal to make a statement, the Court was at liberty to allow the parties to resile from the reference or could revoke the reference. If the parties intended to appoint him as an Arbitrator and if his decision was an award, the learned trial Court was perfectly justified in rejecting it as ambiguous. The learned District Judge was, therefore, justified in affirming the conclusion of the learned trial Court that the decision already filed by the aforesaid referee was ambiguous and that he had declined to come in Court to make a statement.
6. The learned counsel for the petitioners has relied on Umrai Ali Khan and others v. Intizami Begum and others (2). This decision also does not help the petitioners as in that case there was an agreement to abide by the statement made by referee falling under section 20 of the Evidence Act and it was held that it would operate as estoppel if any of the parties wanted to resile. As already stated above he agreement in the present case was not one relating to reference of the dispute to the arbitrator which in the circumstances of the case was rightly revoked. This revision, therefore, is neither legally competent nor any ground has been made out to interfere in the orders of the Courts below. This revision has no force and it is hereby dismissed. Since none of respondents appeared to contest this revision therefore, there will be no order as to costs.
7. Since this is an old matter, the Civil Judge is hereby directed to expedite the disposal of the suit.
(1) PLD 1977 Lah. 672 (2) AIR 1939 All. 176