The petitioner and Respondent No, 1 having a joint business in the name of J.R. Engineering and Metal Works, Peshawar, were compelled to appoint arbitrators for resolution of their dispute of rendition of accounts. (It would be necessary to mention here that their business agreement had no arbitration clause.) Resultantly, an award dated 31.10.2002 was made by the arbitrators.
2. The petitioner through an application, applied for making the award referred above as rule of Court on 7.4.2004 wherein his business partner was impleaded as Respondent No, 1 and the four arbitrators were impleaded as Respondents 2 to 5. The said application was replied by the Respondent No, 1 as well as .the Respondents 2 and 3, the arbitrators. The matter was put to evidence by the trial Court. After recording of evidence, the trial Court dismissed the application of petitioner and his appeal there against met the same fate, hence the present revision petition.
3. Learned counsel for the, petitioner submitted that the findings of the two Courts below are against law as the impugned award was never objected to by the Respondent No, 1, rather the same was admitted by him and in such a situation, legally there was no impediment in the way of the Courts below to make the said award as rule of Court and requested for setting aside the findings of the two Courts below.
4. Learned counsel for the Respondent No, 1 submitted that the application of the petitioner is not in accordance with law and the arbitrators under the law were required to have filed the award in the Court for making the same as rule of Court. He further submitted that when the said award was acted upon as per its decision, then there remains nothing which could have made the petitioner to apply for making the award as rule of Court.
5. The learned counsel for the parties were heard and record of the case was perused.
6. Record of the case reveals that the petitioner and Respondent No, 1 had a joint business and because of some dispute over the rendition of accounts, the matter was referred for arbitration with their consent, in spite of the fact that there was no such clause in their business agreement that in case of any dispute regarding their business, the matter would be referred to the arbitrators.
In support of his petition, the petitioner himself appeared as his own witness and narrated the facts regarding their dispute, reference of the same to the arbitrators and making of the award by the arbitrators.
7. The facts brought on the record would reveal that parties to the lis, of their own opted for the resolution of their dispute through arbitration which was accordingly done and the award so announced by the arbitrators, as per overwhelming evidence on the record, was acted upon and fulfilled, meaning thereby that dispute between the parties was resolved and came to an end.
8. As far as the present petition is concerned, it has been moved by one of the party to the dispute.
It was neither moved by any arbitrator nor any such application was moved by a party to ask/direct the arbitrators, to file the award in Court and then it be made rule of Court. Legal aspect of case which appears is that it was an award given without the intervention of the Court and was based on the mutual consent and agreement of the parties. In addition to that; the same was then acted upon.
9. After announcement of the award, it is the arbitrator under Section 14(2) of the Arbitration Act, 1940, who has to file the award in the Court either at the request of a party or on the direction of the Court. The Court will then give notice to the parties of the filing of award and thereafter the Court has to see whether the same could be make rule of Court or not. The Court for the purpose of making the award rule of Court, is not required to act mechanically as if it has to affix its stamp of approval on the award without determining its legality, maintainability and the question of its executability. Reliance in this regard can well be placed on Government of N.W.F.P. vs. Shahin Shah and others (2009 M LD 1418). Relevant portion is reproduced as under:-- "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 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."
Now coming to the facts and circumstances of the present case, it can safely be held that a party cannot file an award in the Court to make the same rule of Court specially when the award prior to getting the authentication and sanction of the Court, is acted upon between the parties. In such a state of affairs, it becomes useless to ask for its making of rule of Court. It simply becomes a document which can be used by the parties for collateral purposes as a piece of evidence.
10.The two Courts below after proper appreciation of evidence on the record have rightly dismissed the application of the petitioner. The learned counsel for the petitioner was unable to point out any illegality or irregularity in the exercise of jurisdiction by the two Courts below. Hence, this petition being meritless is dismissed as such with no orders as to costs.