' AZ AFZAL KHAN, J.---Government of N.-W.F.P. Through Secretary Irrigation Department, Peshawar and one another, appellants herein, have challenged the judgment and decree, dated 27-11-2006 of the learned Civil Judge-IX, Peshawar, whereby he made the award as rule of the Court.##TE#
2. Learned A.A-G. Appearing on behalf of appellants contended that the Court was required to examine the award to see whether It was capable of being made as rule of the Court even though the appellants failed to file objections against its validity within the period provided by Article 158 of the Limitation Act. The duty of the Court, the learned A.A-G. Submitted, does not come to an end, if the other party fails to raise any objection within the stipulated period of time. The Court, the learned counsel submitted, failed in its duty, when did not put the award to test in view of the criteria provided by the provisions contained in section 17 of the Arbitration Act. The learned counsel to support his contention placed reliance on the cases of Pakistan through General Manger, Pakistan ailways v. Messrs Q.M.R. Expert Consultants (PLD 1990 Supreme Court 800), Messrs Millat Tractors Ltd. v. Messrs Millat Tractor House, A Partnership Firm, Registered under the Partnership Act Kutchery Road, Sargodha through Malik Muhammad Aslam, Managing Partner (1999 YLR Lahore 295) and Messrs Abdullah Traders, through Partner Mukhtar Ahmad v. Trading Corporation of Pakistan Ltd. Through Chairman, Attorney, Principal Officer and 2 others (1999 CLC Kar. 2047).
3. As against that, the learned counsel appearing on behalf of the respondents contended that the Court seized of the proceeding for making the award as rule of the Court cannot sit in judgment over it as a Court of appeal. What it is required under the law to do, the learned counsel added, is to satisfy itself that the award does not run counter to the settled principles of law and the material available on the record. The Arbitrator, the learned counsel submitted, is the final adjudicating authority on the question of law and facts and it is not open to a party to challenge his decision if it is otherwise valid. The learned counsel next contended that it is one of the settled principles of the law of arbitration that an award deserves utmost respect and cannot be lawfully disturbed, even if on its reappraisal from a different angle a different view is possible. The learned counsel to support his contention placed reliance on the cases of Mian Corporation through Managing Partner v.
Messrs Lever Brothers of Pakistan Ltd. Through General Sales Manager, Karachi (PLD 2006 Supreme Court 169) and Sezai Turkes Feyzi Akkays Construction Company v. Board of Trustees of Karachi Port Trust, Karachi (2007 CLC Karachi 879). Learned counsel by referring to the case of Sheikh Mahboob Alam v. Sheikh Mumtaz Ahmad (PLD 1956 (W.P.) Lahore 276) contended that an objection which was not raised in the trial Court cannot be allowed to be raised in appeal. The learned counsel by concluding his arguments submitted that the Court is required to look at the award with pronounced leaning towards upholding rather than vitiating it. The learned counsel to buttress his argument placed reliance on the case of Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another (1984 SCMR 597).
4. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
5. It is correct that objections raised by the appellants were left entirely out of account by the trial Court because they were filed after the expiration of 30 days. But this does not absolve the Court of its duty to examine the award to satisfy itself that it does not run counter to the settled principles of law and the material available on the record. The learned trial Court felt free to make award as rule of the Court, the moment it found that the objections there against have not been filed within the period of limitation. It did not bother to cast even a passing glance at the award before proceeding to make it rule of the Court. There is no cavil with the proposition that the Court seized of a proceeding for making award, as rule of the Court is not supposed to sit in judgment over it as a Court of appeal. There is also no cavil with the proposition that the Court is also not required to make reappraisal of evidence recorded by the arbitrator to discover any error or infirmity in the award. But it does not mean that it is to ditto or rubber stamp the award mechanically without much questioning about it. The legislature in its wisdom, as far as, it can be gathered from the scheme of the Act, did not envision the intervention of the Court just for the hack of it. It was rather purposive, meaningful and goal oriented. It being supervisory is meant to check the excesses and over doings in the conduct of the arbitrator in the arbitration proceeding. The role of Court, if seen in the light of the relevant provisions of the Act and the case law that has grown over years in this behalf is that of active dissenter rather than B passive consenter. But strange is the fact that the learned trial Court considered itself just a plant meant for manufacturing the goods known as rule of the Court on receipt of some raw material in the form of award. No part of its judgment reflects due or conscious application of mind. The judgment, thus, passed cannot be maintained under any canons of law and propriety. In the case of Messrs Awan Industries Ltd. v.##TE# The Executive Engineer, Lined Channel Division and another (1992 SCMR 65) the Hon'ble Supreme Court after reviewing a string of judgments held that the provision of section 17 of the Arbitration Act imposes a duty on Courts to see that there is no cause to remit award or any of the matters referred to arbitration for reconsideration or to set aside the order and that this can be done by the Court suo motu, apart from the application which a party could make for remission of the award or its reversal. In the cases of Pakistan through General Manger, Pakistan Railways v. Messrs Q.M.R. Expert Consultants and Messrs Millat Tractors Ltd. v. Messrs Millat Tractor House, A Partnership Firm, Registered under the Partnership Act Kutchery Road, Sargodha through Malik Muhammad Aslam, Managing Partner and Messrs Abdullah Traders through Partner Mukhtar Ahmad v. Trading Corporation of Pakistan Ltd. Through Chairman, Attorney, Principal Officer and 2 others (supra) the same view was reaffirmed. The cases cited by the learned counsel for the respondents also advance and articulate the same point of view. Even the judgment rendered in the case of Mian Corporation through Managing Partner v. Messrs Lever Brothers of Pakistan Ltd. Through General Sales Manager, Karachi (supra) requires the Court to satisfy itself that the award does not run counter to the settled principles of law and the material available on the record. The judgments rendered in the cases of Sezai Turkes Feyzi Akkays Construction Company v. Board of Trustees of Karachi Port Trust, Karachi, Sheikh Mahboob Alam v. Sheikh Mumtaz Ahmad and Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another (supra) cited at the bar by the learned counsel for the respondents too do not project a different view. We agree with the learned counsel for the respondents that the Court is required to look at the award with a pronounced leaning towards upholding rather than vitiating it, but when the learned trial Court did not care even to touch it before making it rule of the Court, remand of the case would be imperative.
6. For the reasons discussed above, this appeal is allowed, the impugned judgment and decree of the Court below are set aside and the case is sent back to the learned trial Court for decision afresh in accordance with law in the light of the discussion made above within one month after hearing the parties, even if it is to hear the case on day today basis. The parties are directed to appear in the Trial Court on 2-7-2009.##TE#