SYED HAMID ALI SHAH, J. --- Late Masood Ahmad Malik, left behind, various properties including the property known as 15-B/1, Gulberg-III, Lahore. The deceased died issueless and was survived by a widow (respondent No..3) and two brothers (respondents No. 1 & 2) as his legal heirs. The petitioner who was his adopted son, claimed 173rd of the property, on the basis of "Will" signed and executed on 6-11985 and registered on 4-3-1985. Respondents No. 1 & 2, sought the partition of the estate of the deceased through filing a suit for partition; impleading therein the petitioner and respondent No. 3 as defendants. The defendants contested the suit through filing their written statement.
During the pendency of suit, the dispute was referred to arbitrator and a sole arbitrator was pointed by the consent of the parties: The award was announced on 17-4-1998 and filed in the Court. An application under Section '14 of the Arbitration Act' was filed for making the award, rule of the Court.
2. The petitioner and respondent No. 3, filed objection jointly. Mr. Tahir Chaudhary who filed the objection, statedly was not representing the petitioner, withdrew the objections on 11-3-2000.
Resultantly, the award was made rule of Court on 5-12-2005. Learned Court passed the order for auction of property (Bandhan Marriage Hall). Respondents No. 4 & 5, namely Muhammad Ashfaq Ashraf and Shuja ud Din Alvi, were the highest bidders,. Who submitted their bid for Rs. 2,19,00,000/- and have-paid entire bid price.. The auction has not as yet been confirmed.' The petitioner assailed the order dated 5-12-2005, whereby the award was made rule of the Court, through filing application under Section 12(2), C.P.C.. Respondent No. 1 & 2. Contested the application while respondent No. 3 conceded the same. Learned Trial Court dismissed the application vide order dated 25-5-2006, hence this, petition.
3. Learned counsel for the petitioner has contended that the petitioner had never engaged Mr. Tahir Chaudhry, Advocate as his counsel, thus he had not authority to withdraw objections on behalf of the petitioner. He added that there was no request on behalf of the petitioner for withdrawal of objections. Learned counsel went on to argue that Wakalatnama upon perusal, 'refects that it was signed only by respondent No. 3 .And not by the petitioner. It was when contended that Court has made the award as rule of Court, without proceeding the petitioner against ex-parte. It was contended further that award being no .Properly stamped, was inadmissible and as such not 'liable to be made rule of Court. Learned counsel while referring to the case of "Raja Di! Nawaz Khan v. Muhammad Siddique and others" (1993 MLD 1495) has contended that a counsel can represent a party only, when such counsel is appointed through a document in writing which is signed by such person. Learned counsel went on to argue that an award can be challenged either through provisions of Section 33 of the Arbitration Act, 1940 or through invoking provisions of Section 12(2), C.P.C. By relying upon the case of Muhammad Yasin v. Sh. Hanif Ahmed and 4 others (1993 SCMR 437): Learned counsel submitted that application under Section 12(2), C.P.C., is competent, even where. The fraud has not been played in Court but it was practiced on the parties inter se. Case of Muhammad Aslam and others v. Mst. Kundan Mai and others (2003 CLR 855) was referred in. This respect.
4.. Auction purchaser moved application C.M.
No. 2908-C-2006, which was allowed on 19-10-2006. They were impleaded as party and their learned counsel (Kh. Saeed-uz-Zafar, Advocate contended that objection to award, filed on 11-5- 1'998 were withdrawn on 11-3-2000 while application under Section 12(2), C.P.C. Was filed on 23-2- 2006. Learned counsel has submitted that application after the delay of six years, was not competent. Case of Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others. (2003 -SCMR 1050) was referred to contend that limitation' for filing the application under Section 12(2), C.P.C. Is 3 years. Learned counsel has argued further that. The objections were filed jointly through Mr. Tahir Chaudhry, Advocate. The denial 'of authority to counsel, by the petitioner, proves that no objections were 'filed on behalf of the petitioner. Learned counsel went on to argue that if it is assumed that the objections were validly filed on behalf of. The petitioner, through Mr. Tahir Chaudhry, Advocate; then it will have the impact that Mr: Tahir Chaudhry, Advocate had also the authority to withdraw the same on behalf of the petitioner. It was, also contended that Mr. Tahir Cahudhary, Advocate had throughout been representing the petitioner in the proceedings before arbitrator and before the Court which reflects that authority was conferred through conduct. He contended that the act of Mr. Tahir Chaudhry, Advocate to represent the petitioner, in the absence of a valid authority, stands rectified, under the provisions of Sections 196 and 197 of the Contract Act, 1872. -M/s. Abdur Razzaq and Ghulam Mustafa Shahzad, Advocates of respondents No. 1 & 2, have adopted the arguments of Kh. Saeed-uz-Zafar, Advocate. They added that the petitioner has not challenged the decree under Section 12(2), C.P.C.
Is not competent. They stood behind the impugned order and submitted that the petitioner has failed to establish a case for interference in revisional jurisdiction, as no legal infirmity or illegality was pointed out in the impugned order. Respondent No. 3, however, conceded the petition.
5. I have heard the learned counsel for the parties and perused the material available on the record.
6. The case in hand, is the case of comedy of errors, in number of ways namely:---
(i) Where learned Trial Court allowed withdrawal of objections without verifying that counsel, statedly representing petitioner' had no Valid authority
(ii) The case thereafter was fixed on .Number of occasions, when petitioner was neither represented nor in attendance, yet a formal exparte order was never passed
(iii) A Court auctioneer was appointed for sale through auction, of property in dispute. The auctioneer was appointed at the point of time when neither the award was made rule of the Court, nor a preliminary decree was passed.
(iv) The award was made rule of Court vide preliminary decree dated 5-12-2005, on the basis of award dated 17-4-1998 but at the same time the preliminary decree was passed ignoring the terms of award, specially para-8 thereof.
(v). The property was put to public, auction without first offering the same to the share-holders.
Which is a condition precedent. In the partition suit
(vi) It is reflected from statements of parties recorded on 11-3-2000, that defendant No. 1 (how respondent No. 3) accepted award conditionally, whereby respondent No. '3 accepted the award if Bandhan Shad' Ghar (property in dispute) is re-evaluated. Respondents No. 1 and 2 accepted the offer and agreed for re-evaluation of property in dispute. Learned Trial Court gave a schedule of auction, without first resorting to valuation of property.
7. In the above back-ground, the petitioner moved .An 'application on 24-2-2-006 under Section 12(2), C.P.C. For getting aside preliminary decree dated 5-12-2005, whereby the award was made rule of the Court. The petitioner took the plea that objections .Were withdrawn by respondent No. 3 on 11-3-2000, when respondent No. 3 and her counsel Mr. Tahir Chaudhry, Advocate appeared and recorded their statements, qua the withdrawal of objections. The petitioner had neither appeared nor had entrusted any authority to Mr. Tahir Chaudhry, Advocate to make the said statement on his behalf . Mr. Tahir Caudhry, Advocate through filing application under Section 151, C.P.C., admitted that he was never engaged as a counsel by the petitioner. He also affirmed that the objections' on behalf of the petitioner were lot withdrawn.
8. Adverting firstly to the question of maintainability of the petition. Under Section 12(2) C.P.C..
Challenge to a decree based on award. Through a petition under Section 12(2), C.P.C., remained under consideration in number of cases. Applicability of provisions of Section 12(2). C.P.C., regarding decree based on award came up for consideration in the following cases ana it was observed as under.-
(a) The Apex Court in the case of Muhammad Yasin v. Sh. Hafiz Ahmad and others (1993 SCMR 437) has enunciated that Arbitration Act, 1940, Contains no provision of challenging a decree, that has been obtained through fraud and misrepresentation, therefore, the applicability of Section 12(2), C.P.C. Had not been excluded.
(b), It has been held in the case of Mrs. Anis Haider and three others v. Additional District Judge and 6 others (2003 CLC 462) that if the question arises that the proceedings and orders of Court, in relation to the proceedings under Arbitration Act, 1940, have been procured through fraud and misrepresentation, such question falls outside the domain of Arbitration Act, 1940. Thus, the bar contained under Section 32 and 33 of Arbitration Act, 1940, would not be attracted, rather the question would be connected with the proceedings of the Court independently and in order to seek, setting aside of the same on the ground, enunciated in Section 12(2), C.P.C. only, such application would be competent. '
(c) Learned Division Bench of Sindh High Court, in the case of Dr. Lzhar Fatima v. Aftab Ahmad Khan and others (NLR 1993 AC. (Civil) 551) has held that award can be set aside through, application under Section 12(2), C.P.C. It was further observed that it.Is wrong to contend that proper remedy for challenging an award is through. An application under Section 30 or under Section 33 of the Arbitration Act, 1940.
(d) It has been .Held in the case of Mst. Afroz Jahan v. Mst. Noor Jahan and others (NLR 1991 CLJ 606) that order making award rule of Court, obtained by practicing fraud on Court, would be invalidated through application under Section 12(2), C.P.C.
A resume of afore-mentioned judgments clearly demonstrates that through filing a petition under Section 12(2), C.RC., a decree based on award, can be competently assailed. Non-filing of objections under Sections 30 & 33 of the Arbitration Act, or non-availing of other, remedy,- creates no bar in this respect.
9. Reverting. To the merits of petition, under Setion 12(2), C.P.C. Contention of the learned counsel for the auction purchaser' that appearance of Mr. Tahir ,Chaudhry, Advocate 'on behalf of the petitioner, in the . Proceeding before arbitrator and also before the Court, is conferment of authority by conduct has no legal basis. There. Are various reasons to hold so. Firstly, case of Ibrahim Ismail (PLD 1983 Karachi 154) relied upon by the respondents, relates to a case where signatures of the counsel, due to accidental omission, were missing., The client however singed the Wakalatanama with proper endorsement of the name of the learned .Counsel. The case of the present petitioner is based on different facts. Secondly provisions of Section 196 of the Contract At, 1872, do not apply to the instant matter, as Mr. Tahir Chaudhry, Advocate. 'through filing an application has categorically stated that he was neither representing the petitioner, nor had withdrawn objection on behalf of the petitioner. Thirdly, objections filed jointly by the petitioner and respondent No. 3 through Mr. Tahir Chaudhry, Advocate, can be treated as filed by each objector independently. Filing of objections jointly with another objector through a counsel, who is engaged by .One of them, does not taken away the right of other objector to pursue objections independent of his co-objector. Each objector has signed objection in his independent capacity. Lastly, a litigant is bound by an act or undertaking of his counsel only when the counsel withholds a valid authority to represent. A counsel cannot withdraw himself from litigation. Unless he has express authorization in this regard Statement of counsel is binding only when he is engaged and appointed by a person, through a document in writing, - which is signed by such person. Reference in this regard can be made to the cases of Dilawar Khan v. Muhammad Siddique and 6 others (1993 MLD 1493) and Official Receiver Aligarh and others v. Hira La! (AIR 1935 Allahabad 727). The impugned order has been passed on the premises that the objections have been withdrawn. The petitioner has not recorded his statement in this respect while Mr. Tahir Chaudhry, Advocate was never engaged by him as his counsel. The statement of Mr. Tahir Chaudhry, Advocate is not binding to the extent of the petitioner. More so, when Mr. Tahir Chaudhry, Advocate in his application under Section 151, C.P.C.
Has admitted in unequivocal terms that he has not with drawh the objections on behalf of the petitioner. Failure to proceed against the petitioner ex-parte, despite he remained unrepresented before the Court for a considerable time, is an act of Court and shall prejudice none. Thus it shall not be inferred from the circumstances, that Mr. Tahir Chaudhry, Advocate had been represent the the petitioner on the basis of implied consent.
Withdrawal of objection, at the back of the petitioner, through a person who .Had not valid authority and passing the preliminary decree on assumption that objections to award stood withdrawn, leads . Me to conclude that the impugned. Decree is result of misrepresentation.
10. The preliminary decree was passed and award was made rule of the Court on 5-12-2005.
Learned Court while making the award rule of the Court passed the following, order: "4. ............................ As per award all other properties were given to the defendants except Bandhan Shadi Ghar which was given to the plaintiffs with its. Valuation of Rs: 1,88,00.000/-. However plaintiffs objected the valuation of the property and it was finally decided that value of suit property would be determined in the Court auction where plaintiffs would get their share' and would also pay an amount determined in the award to the defendants. Since none of the parties have raised any objection on the award and said award also does not requires any stamp duty, so award dated 17-4-1998 Mark-A, is made rule of the Court and in terms of the award Mark-A, the preliminary decree is passed. The parties would have same rights and liabilities as determined in the arbitration award. As per arbitration award Bandhan Shadi Ghar has been given to the plaintiffs, it is to be auctioned and plaintiffs are to receive its valuation, while all other properties ' are given to the defendants According to para-8 of the award, the arbitrator treated the fate of suit property, in the following manner:--- "8. In view of the above the final position is that the plaintiffs, Mr. Lqbal Ahmad Malik and Mr. Manzoor Ahmed Malik, would be entitled to Property No. 2-L, Gulberg-III known as Bandhan Shadi .Ghar and the . House at Sialkot. They would, however, be under an obligation to pay an amount of Rs.
36,60,000.00 to the defendants being the excess value of property as compared to their share indicated in details as above. The mode of payment of this excess amount and the time frame may be determined by the Hon'ble Civil Judge."
11. The petitioner and respondent No. 3, filed objections to the award and in response to para-8 of the award', the petitioner objected on valuation mode and time frame of payment, besides the calculating of shares by the arbitrator, The objections, according to the statement of respondent No. 3 and her counsel were withdrawn conditionally. Joint statement Of respondents No. 1 & 2 and respondent No. 3 (defendant No. 1) recorded on 11-3-2000 (plaintiffs) is re-produced as under:--- {{URDU TEXT}}fc,t145(fi
12. Learned Trial Court in order dated 5-12- 2005 observed that award should have been made rule of the Court and preliminary decree should have been passed but that procedure has been avoided/missed inadvertently. The .Court. Thus, passed preliminary decree, .Making the award 'rule of the Court. Sale of the property was not intended in the award, rather property was agreed to be evaluated. Learned Court passed the orders. For auction of the property, without first determining the mode and time frame for payment to the petitioner and respondent No.3. Learned Court deviated from the award, conditions imposed by respondent No. 3 on acceptance of award and previous orders of. Court. Reading/examining objections of the petitioner and respondent No. 3, statement recorded for withdrawal of objection by respondent No. 3 and order dated 15-12-2004.
Conjunctively lead to conclude that preliminary decree was passed in suppression of available evidence and relevant material. '
13. The judgment and decree can be set aside under Section 12(2), considering the factors which are envisaged in the section itself that is to say fraud, misrepresentation and defect of jurisdiction.
Withdrawal of objections through an unauthorized person and passing the preliminary decree suppressing the terms of award and by ignoring the material conditions of withdrawal of objection by' respondent No. 3, are the factors which establish that :impugned decree (preliminary decree dated 5-12-2005), was result of, fraud and misrepresentation. Thus the impugned order dated 25- 5-2006 passed by learned Trial Court has no legal sanctity.
14. Having dealt with the other aspects. Of the case , I now proceed to examined the question of limitation. There is no dispute that period prescribed for filing the application under Section 12(2), C.P.C. Is governed under Article 181 of the Limitation Act, 1908, which is three years. Respondents claim that application. Under reference, has been field with the delay of six years (approximately) from the date of withdrawal of objections. The petitioner filed objections on award on 11-5-1998, Mst. Zahid Malik (respondent No. 3) and her counsel recorded their statements on 11-3-2000, consequently the objections were withdrawn on the same day. Preliminary decree was passed on 5-12-2005, while petition under Section 12(2), C.P.C. Was field on 23-2-2006. It appears from the record that the petition under reference was field, 5.Years 11 months and 13 days, after the withdrawal of objections. But it was filed on the second day of arrival of the petitioner from abroad and within two months and 18 days of the impugned decree. Period of limitation shall run either from the date of knowledge of fraud i.e. 22-2-2006 or from the date of decree i.e. 5-12-2005, the dated when right to apply accrues. While holding so, I am fortified from the judgment of the Apex Court, in the case of Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others (2003 SCMR 1050), where the' Hon'ble Court observed:- "The period of limitation for an application under Section 12(2), C.P.C. Is not specifically provided under law, therefore, the same is governed by residuary Article 181 of the Limitation Act, 1908 under which such an application can be .Filed within three years from the date when the right to apply accrues and such date would be the date of passing the judgment, decree or order as the case may be."
The petitioner has challenged the decree within a period of two months 18 days. The application is within limitation.
16. For the foregoing, instant revision petition is allowed , the application under Section 12(2), C.P.C.
Stands accepted and preliminary decree dated 5-12-2005 is set aside. Resultantly, the objecting petition of respondents is deemed to be pending before the learned Trial Court, which shall be decided on it's own merit by the Trial Court. Parties to bear their own costs. .