ALI AKBRAR QURESHI, J. --- This civil revision is directed against an order dated 6.10.2006 passed by the learned Trial Court whereby the application under Section 12(2), CPC, Order 9, Rule 13, CPC and Section 17 of the Arbitration Act was dismissed.
2. The respondent in the instant petition filed an application under Section 20 of the Arbitration Act, 1940 on the basis of an agreement wherein it was agreed between the parties that in case of any dispute, the matter shall be referred to two Arbitrators appointed by both the parties. The said application was contested by the petitioner by filing the reply. As per the clause of the agreement, the learned Trial Court on 14.10.2000 directed both the parties to furnish the name of their Arbitrators. The respondent provided the name of his Arbitrator but the petitioner failed to furnish the name of his Arbitrator. The petitioner because of non-appearance was proceeded ex parte on 22.12.2001. The learned Trial Court consequently appointed sole Arbitrator to resolve the controversy on 24.7.2002. The said Arbitrator announced the award and finally filed in the Court on 21.4.2003.
The learned Trial Court thereafter adjourned the case for filing the objection by the parties but no one objected the award announced by the Arbitrator, resultantly the learned Trial Court made the award Rule of the Court on 15.9.2003. The petitioner has claimed in the application under Section 12(2), CPC that the fact of making the award Rule of the Court came into his knowledge on 21.9.2004, when the Bailiff appointed by the Court came to the office of the petitioner to execute the decree and the petitioner without delay filed an application under Section 12(2), CPC.
3. The petitioner has questioned the validity of order dated 15.9.2003 whereby the learned Court while exercising the jurisdiction under Section 17 of the Arbitration Act made the same Rule of the Court, mainly on the ground that the petitioner was proceeded ex parte and could not get the knowledge of the said order because of the death of his learned counsel and no notice by the Arbitrators nor from the Court at the time of making the award Rule of the Court was issued. The respondent vehemently contested the application and controverted the contents by filing a detailed reply. The learned Trial Court out of the pleadings of the parties framed as many as 11 issues, recorded the evidence of the parties and finally after hearing the arguments, dismissed the application, hence this civil revision.
4. The main thrust of the argument of the learned counsel for the petitioner is that the petitioner was proceeded ex parte because of the death of -the learned counsel during the proceedings; that no notice by the Arbitrator or by the Court at the time of filing the award in the Court or making the same Rule of the Court was issued; the proceedings recorded by the learned Trial Court are self-contradictory as the presence of the learned counsel for the petitioner had continuously been marking by the learned Trial Court, although, the learned counsel of the petitioner had died on 6.8.2001 the Arbitrator has not announced the award in accordance with law and has also travelled beyond his jurisdiction and the same has been procured by the respondent by playing fraud and mis-representation. The learned counsel specifically drew my attention to the proceedings recorded by learned Trial Court dated 22.11.2001 when the presence of the learned counsel for the parties was marked whereas the learned counsel for the petitioner had died much prior the said date i.e. 6.1.2008 and the proceedings dated 22.12.2001 when the petitioner was proceeded ex parte and lastly the proceedings dated 24.7.2002, when the sole Arbitrator was appointed wherein the learned Trial Court has itself recorded that the petitioner has been proceeded ex parte on 22.12.2001; and submitted that all the proceedings recorded by the learned Trial Court while marking the presence of the learned counsel for the petitioner is wholly without jurisdiction, without lawful authority and contrary to the factual aspect of the case. Lastly contended that the respondent has obtained the ex parte judgment and decree by playing fraud and misrepresentation. Reliance is placed on Abdul Khaleq v. Province of East Pakistan and another (PLD 1964 Dacca 166), Meer Muhammad Sharif v. Mirza Muhammad Ashraf and 4 others (1980 CLC 1984), Syed Naeem Naqi v. Syed Zameer Haider and 2 others (2000 YLR 386), Muhammad lqbal v.
P.I.D.C. (2000 CLC 876), Sh. Din Muhammad v. Jan Muhammad and another (PLD 1971 Quetta 30), Punjab Province through Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and another v. Messrs Chauhan & Company through Managing Partner (PLD 2000 Lahore 314) and Mrs. Anis Haider and 3 others v.
Additional District Judge, Lahore and 6 others (2003 CLC 462).
5. Conversely, the leaned counsel for respondent submitted that the petitioner was very much aware about the proceedings recorded by the learned Trial Court as the petitioner filed the reply of the application under Section 12(2), CPC; that the petitioner participated subsequent proceedings and even this fact has been admitted by the witnesses appeared on behalf of the petitioner and even otherwise the petitioner has failed to make out a case under Section 12(2), CPC, and the judgment passed by the learned Trial Court is well-worded and has been passed after adverting all the aspect of the case. Reliance is placed on Baqir v. Mst. Shamim Bibi and others (2001 SCMR 946), Machin Khan v. Sher Muhammad Khan (2003 YLR 742), Chiragh Bibi and another v. Mst.
Rashida Begum and others (PLD 1958 SC (Pak.) 209, Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others (2003 SCMR 1050) and Monazah Parveen v. Bashir Ahmad and 6 others (2003 SCMR 1300).
6. I have heard the learned counsel for the parties . And perused the record.
7. It is necessary to examine the proceedings recorded by the learned Trial Court to decide the fate of the case as the petitioner has mainly questioned the validity of the proceedings recorded by the learned Trial Court particularly to the effect that the petitioner was proceeded ex parte and the presence of his counsel had been marking despite the fact the learned counsel died during the proceedings and thereafter no notice was served either by the Arbitrators or by the Court. The record maintained by the learned Trial Court indicates, that the petitioner duly replied the application under Section 20 of Arbitration Act, and fully participated in the proceedings when the leaned Trial Court allowed the application on 14.10.2000 under Section 41 of the Arbitration Act and the parties were directed to provide the name of their proposed Arbitrators. The respondent provided the name of his Arbitrator whereas the petitioner obtained adjournment and thereafter filed an appeal record shows had been against the order dated 14.10.2000. The petitioner as record shows had been appearing in the case before the learned Trial Court during the pendency of the appeal and even on 22.11.2001 the petitioner was present when the order passed by the learned Appellate Court was conveyed to the learned Trial Court and on the said order, the learned Trial Court again directed the parties to provide the name of the Arbitrators. On the next date i.e. 22.12.2001 no one appeared on behalf of the petitioner and the ex parte proceedings were ordered.
On 24.7.2002 when no one appeared on behalf of the petitioner neither any application for setting aside the ex parte proceedings were filed, the learned Trial Court appointed sole Arbitrator to resolve the controversy. The record which starts from 12.10.2002 shows that the petitioner again started appearing and even the petitioner was present through his counsel on 17.3.2003 when the award was filed in the Court. The learned Trial Court on 21.4.2003 provided an opportunity to both the parties to file the objection and till 15.9.2003 no body including the petitioner filed the objection, therefore, the learned Trial Court having no option in law made the award Rule of the Court but while making the award Rule of the Court, the learned Trial Court also observed that the petitioner has already been proceeded ex parte.
8. It is also necessary to discuss the evidence produced by the parties. AW-1 who is Manager Finance of the petitioner while appearing in the witness-box stated in examination-in-chief as under:- "I have been maintaining the record of the cases pending in the Court regarding Daewoo Corporation. I am responsible for maintaining the record."
According to order dated 14.10.2000, the stay order was confirmed in respect of non-cancellation of licenece of the petitioner. The petitioner filed an appeal against the said order dated 14.10.2000 and the same was accepted."
AW-2 who was driver and clerk of the learned counsel namely Mahmood Ahmad, deceased, only stated that the counsel of the petitioner's company died during the proceedings of the learned Trial Court but could not succeed to support the contentions of the petitioner. AW-3 who was Account Officer of the respondent-Company stated in examination-in-chief regarding receiving of the notice, which is very much important, keeping in view the facts of the case so the same is reproduced as under:- "AW-3: The notice received by me in September 2000, was in respect of the stay order.
The important witness AW-4 who stated regarding fraud committed by the respondent in the following lines:--- "AW-4 The respondents got the decree on the basis of dishonesty and misrepresentation a fraud and with connivance of Court functionaries."
The said witness also stated as under:--- "I joined the petitioner's company on 1.6.1006. Yes my knowledge about the present case is not my personal knowledge and it is based on company record.
"It is correct that after remand of the case, the Daewoo Company was represented in the original case as per the record of the case."
9. During the course of argument, when the learned counsel for the petitioner was asked to explain the conduct and non-appearance of the petitioner from 22.12.2001 when the ex parte proceedings were ordered till 22.9.2004, the date of filing the application under Section 12(2), CPC; the learned counsel could not advance any plausible explanation . But to submit that the petitioner remained unaware about the proceedings of the learned Trial Court because of the death of his learned counsel. Again, it was pointed to the learned counsel that the learned counsel of the Company was died on 6.3.2001 and thereafter for a long time why the petitioner did not inquire about the proceedings of the case, the learned counsel again reiterated his argument and failed to give any sufficient explanation to meet with this query. The witnesses AW-1 who is Manager Finance of the Daewoo stated that he has been maintaining the record of the case pending in the Court, therefore, if is sufficient to understand that the proceedings of the cases of the company .Pending in the different Courts had been maintaining by a person holding the post of Manager Finance and death of the learned counsel and the proceedings were much in the knowledge of the said AW-1.
Even otherwise, it is unbelievable that an Advocate who is Legal Advisor of a well established company, if dies during the pendency of the case and its official dealing with the legal cases remained unaware about the death of the learned counsel nor for a month but about four years. It is also notable that apparently it was an important case wherein the respondent has claimed a considerable amount from the company so the stance taken by the petitioner about the knowledge of the death of the learned counsel not in time, is hardly believable. The statement of AW-1 is sufficient to disbelieve the .Contentions of petitioner. The petitioner has challenged the validity of the order dated 15.9.2003 whereby the award was made. Rule of the Court mainly on the ground that the award and thereafter the decree on the basis of said award was procured and obtained by playing fraud and misrepresentation and that is the reason, the petitioner elected to challenge the said judgment and decree under Section 12(2), CPC. The ground taken by the petitioner in his application under Section 12(2), CPC are as under:-
(a) No notice of appointment of arbitrator was ever served upon the petitioner Company.
(b) The arbitrator did not issue any notice of arbitration to the petitioner before announcing the alleged award. The petitioner wag condemned unheard.
(c) After submission of the award in the Court the predecessor of this learned Court did not invite any objections. No notice of submission of award was ever issued and served upon the petitioner.
All the proceedings are coram non judice. Those are nullity in the eyes of law.
(d) The predecessor of this learned Court had absolutely no jurisdiction to make the awarded as Rule of the Court: without inviting objections from the petitioner.
(e) The alleged arbitrator travelled beyond his jurisdiction. He had no jurisdiction to grant the amount in dispute to the respondent. There was no basis to grant amount of alleged damages.
(f) , The respondent obtained the award and. The judgment and decree thereon by playing fraud. It is result of mis-representation. The petitioner is not bound by said award.
(g) The petitioner company came to know about passing the judgment and decree dated 15.9.2003 yesterday i.e. 21.9.2004 when the bailiff of the Court visited another company having no concern with the present petitioner.
Hence this application is being filed without any delay.
(h) Even otherwise the alleged. Award is liable to be set aside being without jurisdiction.
10. In support of the contentions/grounds taken in the application under Section 12(2), CPC, the petitioner also produced his witnesses who did not say anything specifically about the fraud, nor the ingredients of the fraud were narrated but AW-4, a witness of the petitioner has simply stated in examination-in-chief; that the respondent has procured the said judgment and decree on the basis of dishonesty and misrepresentation and fraud and with connivance of Court functionaries.
The said witness had again not pointed out a single stance or ingredient of fraud and misrepresentation but simply stated that it all was done with connivance of the Court functionaries but failed to explain the connivance with the Court functionaries, who was included in the Court functionaries and how the respondent succeeded to get the judgment and decree with the connivance of the Court functionaries. The allegations levelled by the aforesaid witness is totally contrary to the record and allegations mentioned in the application under Section 12(2), CPC therein the petitioner has not referred even a single stance of connivance of the respondent with the Court functionaries. The language used by the lawmaker while inserting Section 12(2), CPC is as under:--- Section 12(2), CPC: Where a person challenges the validity, of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.
11. The legislature has provided a remedy to a person to challenge the judgment and decree by way of this application instead of filing an independent suit and has used very significant three words on the basis of which the judgment and decree can be questioned. Any person who is aggrieved of any judgment and decree or order can file an application on the grounds, (i) fraud (ii) mis-representation and want of jurisdiction. The petitioner has sought the invalidation of the judgment and decree dated 15.9.2003 on the ground of fraud and misrepresentation and has not disputed the jurisdiction of the Court. The words fraud and mis-representation have defined in the different dictionaries. Meaning of the word fraud and misrepresentation are as under:- Fraud: criminal deception; the use of false representations to gain an unjust advantage. 2. a dishonest 3. a person or thing not fulfilling what is claimed or expected of him, her, or it.
4. The crime of obtaining money by deceiving people; someone or something that deceives people by claiming to be someone or something that they are not: Mis-representation: represent wrongly; give a false or misleading account of idea of.
2. To describe falsely an idea, opinion or situation or the options of someone, often in order to obtain an advantage.
12. The next question, which requires consideration, as to whether the petitioner has given the ingredients of fraud as required by law. The law-makers have already taken care while inserting Order 6, Rule 4, CPC which is reproduced as under:--- Order 6, Rule 4, CPC Particulars to give where necessary "In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in the form of aforesaid particulars (which dates and items if necessary shall be stated in. The plaint."
3. The law-maker were very much conscious while inserting this provision in the Code of Civil Procedure that if a party questions the validity of any order on the basis of fraud and misrepresentation, the particulars of fraud alongwith dates and items should be mentioned in the pleadings so that the other party could meet with or rebut the same in his own way. Even otherwise the law requires that if the fraud, and misrepresentation is alleged, that has to be proved by the person who is alleging the same whereas in this case, the petitioner has miserably failed to point out or to, mention any ingredients or particulars of fraud in his pleadings and also failed to prove in evidence, therefore, the petitioner has miserably failed to meet with the requirement of Section 12(2), CPC. It is also notable that the petitioner on the one hand has questioned the validity of the judgment and decree under Section 12(2), CPC but on the other hand has also asked for setting aside the said judgment and decree on the strength of the provisions of Order 9, Rule 13, CPC which to my mind have no nexus with each other. The requirement of both the provisions of law are different. The petitioner has also mentioned Section 17 of the Arbitration Act wherein the award if filed in the Court is to be made Rule of the Court and that order shall follow a decree. The petitioner has also failed to point any misconduct committed by the Arbitrator or with the proceedings of the arbitration.
14. Learned counsel for the petitioner has otherwise failed to point out any jurisdictional defect, legal infirmity, material irregularity, mis-reading and non-reading of evidence with the judgment, impugned herein. The judgments referred, by the learned counsel for the petitioner has no relevance with the legal proposition involved in this case. Even otherwise, the facts of the instant case is altogether different. It is also settled principle of law that each case has to be decided on its own merits, therefore, there is hardly any reason to interfere with the findings recorded by the learned Court below while exercising the revisional jurisdiction under Section 115, CPC.
15. Resultantly, this civil revision has no force and is dismissed with no force and is dismissed with no order as to costs.
Civil revision .