1. ' KHILJI ARIF HUSSAIN, J.--- Being aggrieved and dissatisfied with the order, dated 26-4-2007, dismissing application under section 33 of the Arbitration Act, 1940 and application under section 5 of the Limitation Act, making award rule of the Court, the appellant preferred this appeal.
2. ' Brief facts for the purpose of deciding listed appeal are that a retired Judge of this Court was appointed as sole arbitrator by this Court in Suit No,554 of 1997 to give award in respect of the disputes between the parties. It appears that on different occasions the appellant expressed his reservations on the appointment of the learned arbitrator, however, the order of appointment passed by this Court, was not called in question by way of appeal.
3. ' The learned arbitrator after recording evidence gave award on 1-12-2006, which was filed in Court by him and registered as Suit No,1637 of 2006. Notices were issued to the parties to file their objections, if any. The respondent filed objections under section 33 of the Arbitration Act (C.M.A.
4. No,1839 of 2007) along with an application under section 5 of the Limitation Act, to condone the delay in filing the objections. After hearing the learned counsel for the parties, the learned single Judge dismissed the applications, holding that sufficient ground has not been given for condoning the delay and further that the only ground taken by the appellant calling in question the award is that the appellant has some reservations on appointment of the learned sole arbitrator and such objection was taken on different occasions and same was dealt with by this Court in Suit No,554 of 1997.
5. ' Heard Syed Shoa-un-Nabi, learned counsel for the appellant, Mr. Muhammad Saleem Mangrio, learned counsel for the respondent, and Mr. Masood Noorani, learned Additional Advocate- General, Sindh. Syed Shoa-un-Nabi, learned counsel for the appellant, argued that objections under section 33 of Arbitration Act could not be filed in time as he was under the impression that the same were to be filed on 27-2-2007. He further contended that the appellant time and again expressed her reservation about the appointment of sole arbitrator and, raised objection in Court despite that learned arbitrator proceeded with the matter and gave award.
6. ' We have taken into consideration arguments advanced by the learned counsel for the appellant and perused the record.
7. ' From the record it appears that the sole arbitrator was appointed by this Court on an application filed by the respondent in Suit No,554 of 1997. The appellant in this regard also filed statement on 14-10-2006 and in December, 2006 to supersede the reference, but the learned Judge rejected the request and refused to recall the order of appointment of the sole arbitrator.
8. ' Section 5 of the Arbitration Act provides that authority of an appointed arbitrator shall not be revocable, except with the leave of the Court unless a contrary intention is expressed in the arbitration agreement. It is an admitted position that after the order of reference passed by the learned Single Judge in Suit No,554 of 1997, no appeal was preferred against the order of reference appointing a retired. Judge of this Court as sole arbitrator, nor an application under section 5 of Arbitration Act has been filed. An authority of the arbitrator once appointed can be revoked on an application filed by aggrieved party under section 5 of the Arbitration Act or by an appeal against the order of appointment of arbitrator, if arbitrator was appointed by Court in suit. The objection of the learned Advocate now about the appointment of the arbitrator cannot be entertained.
9. ' Coming to the question of filing of application under section 33 of the Arbitration Act after expiry of limitation. In terms of Article 158 of the Limitation Act an application to set aside an award can be filed within 30 days from the date of service of notice of filing of the award and not from the date when service was held good. The appellant was served with the notice of filing of award on 25-1- 2007 and she ought to have filed her objections by 24-2-2007, whereas the appellant has filed objections on 27-2-2007.
10. ' In the case of Haji Amir Bux v. Sono Khan reported in PLD 1979 Kar. 45, wherein a learned Single Judge of this Court while relying upon a judgment in the case of Thal Development Authority v.
11. Nisar Ahmed Qureshi reported in PLD 1962 Lah. 830, held that section 5 of the Limitation Act was not available to extend time under Article 158 of Limitation Act. In the case of Messrs Valika Woollen Mills Ltd. v. D.P. (Army) Karachi, reported in 1984 CLC 2515, a learned Judge of this Court held as under:--- "(iii) There is yet another fatal objection, to the entertainment of the plea for condonation of delay under section 5 of Limitation Act. Mr. Aziz Munshi the learned Dy. Attorney-General rightly submitted that section 5 of Limitation Act is not applicable to applications which are required to be filed within 30 days under Article 158 of Limitation Act. Mr. Hasan A. Sheikh, learned Advocate. For the plaintiffs concedes to this legal position.
12. ' Accordingly the prayer for condonation of delay under section 5 of the Limitation Act is rejected."
13. ' We with great respect at our command have some reservation on it and we are of the opinion that in appropriate cases, when sufficient cause is made out, the principle of section 5 of the Limitation Act can be attracted and delay in filing the same can be condoned.
14. ' In all the above referred matters effect of section 37 of Arbitration Act has not been considered which provided that all the provisions of the Limitation Act, 1908 shall apply to arbitration as they apply to proceedings in Court. We left this question to be answered in some other proceedings as even if section 5 of the Limitation Act is applicable, the appellant failed to give sufficient cause for condonation of delay.
15. ' The only cause given by the appellant for condonation of delay is that the learned Advocate was, of honest opinion that objections have to be filed on 27-2-2007. In the affidavit in support of application under section 5 of the Limitation Act, the learned Advocate stated that in good faith he waited till 27-2-2007 to file the application under section 33 of the Arbitration Act though same was drawn by him many days before 27-2-2007. The reason given for condonation of delay can hardly be termed a reason to condone the delay, what to say sufficient reason. The law is well-settled that objection to set aside an award ought to have been filed within 30 days from the date of service or the date on which information of filing of award is received by the party intend to file objection/application to set aside an award. Arbitration is a settlement of controversies by one or more persons, known as Arbitrator by parties by themselves with an object to curtail period of litigation. While considering application under section 5 of the Limitation Act, to see whether there is sufficient cause for condonation of delay, the very object for which dispute was referred for arbitration, must be kept in mind. If due to any omission or negligence on the part of anyone same is not filed in time, the delay can be condoned. Only if sufficient cause is given for not filing objection in time explaining each day.
16. ' In the case of Suba Khan v. Nazar Muhammad and another reported PLD 1981 Lah. 620 the learned Lahore High Court has held as under:--- "(9) It is correct that a mistaken advice of a counsel has been held to be a ground which may be considered as sufficient for condoning delay but to me it appears that only such mistaken advice can be considered as a sufficient ground for condoning delay in availing of a legal remedy which has been given bona fide, with due diligence and after due application of mind. The negligent advice of a counsel can obviously be not made a basis for condoning delay as it would amount to giving a premium on one's own neglect. There can be no cajole to the proposition that want of reasonable skill on the part of the counsel would stand on the same footing as negligence. It may also be observed that if it be laid as a broad principle that every mistaken advice of the counsel is a good ground for condoning delay as has been canvassed by the learned counsel for the appellant, it would amount to defeating the valuable right that has accrued to the adversary under the law by lapse of the prescribed period of dimitation."
17. ' In the case of Allay Wasay and another v. Muhammad Shakir reported in PLD 1958 (W.P.) Lah. 959, it was held that negligence of the counsel is the negligence of party, because he is the agent of the party. If the negligence of counsel was to be condoned, appeal which is not filed through counsel's negligence would never become time-barred.
18. ' For the foregoing reasons, the listed appeal has no merit and is accordingly dismissed in limine.
19. ' These are the reasons of our short order, dated 9-9-2008.