1. ' ZAFAR AHMED KHAN SHERWANI, J.---Mr. Justice(R) Syed Haider Ali Prizada, Umpire has filed this application under Rule 282 of the Sindh Chief Court Rules which has been registered as suit accordingly and submitted the award, dated 29-3-2008 stating therein that under section 14(2) of the Arbitration Act read with above mentioned rule having been referred the matter as Umpire by the Arbitration namely Mr. S. Samiuddin Sami and Mr. S. Muhammad Mazharul Haq as a result of difference of opinion. Notices were issued A to both the parties.
2. ' The defendant filed its objections in the form of an application under sections 15 and 30 of the Arbitration Act praying therein to set aside the award and to pass a judgment according to law in both the suits bearing No,252/99 and 1184/99 between the parties on merits. It was inter alia contended that the present is the dispute between the above mentioned two private parties wherein the huge public exchequer is involved which could only be disbursed by the defendant to the plaintiff, after verifying the claim from all the corners. An affidavit in support of the application was also filed. In reply of this affidavit one Mr. Bashir Uddin, one of the Directors of the plaintiff company has filed his counter affidavit in which it has been stated that the decision of the Umpire is based on proper appreciation of the evidence produced by both the parties against which nothing has been pointed out in the objections to the effect, that the award pronounced by the Umpire suffers from any error which cannot be modified. It is also stated that neither any misconduct nor any illegality has been alleged by the defendant in these objections, therefore, the application has no merit and liable to be dismissed. However, it has been prayed that the markup, which was not allowed by the Umpire from the date of award, may be granted.
3. ' I have heard the learned counsel for the parties and perused the record.
4. ' Learned counsel for the defendant contended that the evidence brought on record by the defendant during the arbitration proceeding has not been appreciated by the Umpire, therefore, the award is liable to be set aside.
5. ' On the other hand the learned counsel for the plaintiff submitted that the Umpire has properly appreciated the evidence produced by the parties and this Court cannot examine the award as an appellate Court, therefore, the award is to be made rule of Court. He further contended neither any illegality has been alleged nor any mala fide or misconduct of the Umpire, as provided in sections 15 and 30 of the Arbitration Act, has been alleged, therefore, no other objection can be agitated by the defendant. He has referred the following cases:--
(1) Messrs Khan Brothers and Associates v. Director General Food, Government of Pakistan (1998 CLC 1671)
(2) Messrs Quality Builder Ltd. v. Karachi Metropolitan Corporation (1999 CLC 1777).
(3) Messrs Joint Venture Kd/Rist through D.P. Giesler G.M., Bongard Straese 3, 4400, Dusseldort 30, Federal Republic of Germany, C/o 15-Shah Charagh Chambers, Lahore and 2 others v. Federation of Pakistan, through Secretary Food, Agricultural and Coop; and another (PLD 1996 SC 108).
6. ' I have carefully considered the above arguments in the light of the record. To appreciate the arguments of the parties it is advantageous to reproduce section 15 and section 30 of the Arbitration Act as under:-- Section 15. Power of Court to modify award:-- The Court may by order modify or correct an award:- -
(a) Where it appeared that a part of the award is upon a matter not referred to arbitration and such part can be separated from the other part and does not affect the decision on the matter referred; or
(b) Where the award is imperfect in form, or contains any obvious error which can be amended without affecting such decision; or
(c) Where the award contains a clerical mistake or an error arising from an accidental slip or omission.
7. Section 30 Grounds for setting aside award:-- An award shall not be set aside except on one or more of the following grounds, namely:--
(a) that an arbitrator or umpire has misconducted himself or the proceedings;
(b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35; and
(c) that an award has been improperly procured or is otherwise invalid.
8. ' From bear reading of the application/objections it is manifest that the defendant has not alleged any infirmity/irregularity or any defect in terms of section 15 or any illegality or misconduct in terms of section 30 of the Arbitration on the basis of which either the award be modified or set-aside as prayed in the application.
9. ' The principle laid down in Messrs Joint Venture Kd/R is in the PLD 1996 SC 109 for the Courts examining the validity of any award is that such Court does not act as a Court of appeal. Therefore, a Court hearing the objection to the award cannot undertake- reappraisal of evidence recorded by arbitrator in order to discover the error or infirmity in the award. The error or infirmity in the award, which rendered the award invalid, must appear on the face of the award and should be discoverable by reading the award itself. Where reasons recorded by the arbitrator are challenged as perverse, the perversity in the reasoning has to be established with reference to the material considered by the arbitrator in the award.
10. ' Keeping in view of the above principle the award passed by Umpire in this case cannot be interfered because no perversity in the reasoning with reference as the material considered by the Umpire has been established by the defendants. The only objection of the defendant with regard to non-appreciation of evidence produced before the Umpire is out of scope of this Court as provided in sections 15 and 30 of the Arbitration Act.
11. ' In view of the above reasons the award is made rule of Court. The office is directed to prepare decree accordingly.
12. ' The above are the detailed reasons for the short order passed on 18-2-2009.