' IJAZ-UL-AHSAN, J.---This petition is directed against order dated 28-4-2008 passed by a learned Civil Judge, at Lahore. Through the impugned order, the learned subordinate court dismissed an application moved by the petitioner under section 17 of the Arbitration Act, 1940 for making an award the rule of the Court and pronounce judgment according to the award. The petitioner and respondent No, 2 had entered into a construction contract for construction of approach roads to flyovers Fl to F5 on the Lahore Islamabad Motorway. Disputes arose between the parties relating to certain payments that the petitioner claimed and the respondent withheld. The petitioner filed W.P.
No,16175 of 2003 before this. Court for issuance of writ of mandamus. During the pendency of the writ petition, an application was moved by both parties to refer the matter to arbitration. The application was allowed and the dispute was referred to respondent No,5 for arbitration.
2. Respondent No, 5 conducted the arbitration proceedings, and rendered the award on 24-7-2007.
It appears that on the same day, a signed copy of the award was supplied to the petitioner as well as respondent No,2. Notices of making of final award were also sent at their respective addresses in compliance with section 14(1) of the Arbitration Act, 1940. Copy of the award was received by the learned counsel representing the respondents on 24-7-2007.
3. The petitioner through an application dated 24-8-2007 under section 14(2) of the Arbitration Act, 1940, requested respondent No, 5 to file the award in the Court for making the same a rule of the Court. On 21-9-2007, the learned Arbitrator filed an application under section 14 of the Arbitration Act before the learned Senior Civil Judge, Lahore for filing the Award dated 27-7-2007. The application was duly received and the following noting was made by the Court Staff:-
4. It appears from the record that notices of filing of award in the court were duly sent to the respondents through courier service, which were delivered to respondents Nos.2 and 4 on 11-12- 2007 and on respondent No,3 on 12-12-2007. On 18-12-2007, when the matter came up for hearing before the learned trial court, respondents Nos.2, 3 and 4 were duly represented by their counsel, who also submitted a power of attorney, which was placed on the court file on the same day. The matter was thereafter mistakenly adjourned to 26-1-2007. The petitioner accordingly moved an application under section 151 C.P.0 seeking rectification of the next date of hearing. It is significant to note that in the said application, it was specifically averred that the respondent had been duly served on 11-1-2007 and 12-12-2007. Notices on the application were issued by the Court for 14-1- 2008, however, no one appeared on the said date to represent the respondents, nor was any response filed.
5. The petitioner calculated 30 days from the date of service of notice regarding filing of award and being convinced that the statuary limitation for filing objections against the award had elapsed as against respondents Nos.2 and 4, on 10-1-2008 filed an application under section 17 of the Arbitration Act with the prayer that the Court may proceed to pronounce judgment and decree in terms of award dated 24-7-2007. On 28-1-2008, the learned counsel for respondents Nos.2, 3 and 4 entered appearance in proceedings application under section 17 of the Arbitration Act. He requested the Court to unseal the award for the purpose of filing objections. On 29-1-2008, an application was filed on behalf of the respondents under section 151, C.P.0 seeking a direction to the Arbitrator to file the award in the Court. Along with the application, objections against the award were also filed, which shows that the respondents were aware of the contents of the award before its de-sealing having been Provided a copy of the award earlier by the Arbitrator.
6. The matter appears to have been transferred to some other court at the behest of the respondents. The transferee court took up the matter and various adjournments were sought on behalf of the respondents on 19-3-2008, 4-4-2008 and 11-4-2008. On 18-4-2008, a reply to the application under section 17 of the Arbitration Act moved by the petitioner, was filed on behalf of respondent No,2. The matter was taken up on 21-4-2008 and 25-5-2008, when the learned trial Court unsealed the award. The learned counsel for respondents Nos.2, 3 and 4, thereupon requested the court to adjourn the case for filing the objections to the award. On the said date, the learned trial Court after hearing the parties dismissed the application of the petitioner for making the award a rule of the court. It further proceeded to entertain the objections filed by the respondents and the case was adjourned for filing replies to the objections. The petitioner is aggrieved of the said order and has approached this Court through this revision petition.
6-A. By way of preliminary objections, the learned counsel for the respondents has raised an objection that the order impugned through this petition does not constitute a "case decided". He, therefore, submits that the present petition is not maintainable. The learned counsel for the petitioner submits that the expression "case decided" does not necessarily mean the decision of the entire suit. He points out that the expression may relate to decision of an interlocutory matter requiring the application of judicial mind. Relying upon Messrs National Security Insurance Company Limited and others v. Messrs Hoechst Pakistan Limited and others (1992 SCMR 718), he submits that where an interlocutory order was passed by a court without any material on record ex facie, it appeared to be perverse, such order could be interfered in revision. In the aforesaid judgment, the Hon'ble Supreme Court of Pakistan held that old view that interlocutory orders do not fall within the expression "case decided" has since been abandoned and is no longer good law. In expressing the aforesaid opinion the Hon'ble Supreme Court of Pakistan relied upon an earlier judgment reported as Bashir Ahmad Khan v. Qaisar Ali Khan (PLD 1973 SC 507).
7. In the case of Bashir Ahmad Khan (ibid), it was held that section 115 of C.P.0 would be attracted if a court subordinate to the High Court had given a decision in respect of any state of facts after judicially considering the same. The decision need not necessarily dispose of the whole matter or suit pending before the subordinate court. Applying this rule to the facts and circumstances of the present case, it would appear that the order passed by the learned trial Court, dismissing the application of the petitioner under section 17 of the Arbitration Act is liable to be corrected in exercise of revisional powers of this Court. The matter falls within the ambit of section 115 of C.P.0 in view of the fact that in my opinion the learned subordinate court appears to have acted in exercise of its jurisdiction illegally and/or with material irregularity. I am, therefore, inclined to hold that the present revision petition is maintainable and the preliminary objection raised by the learned counsel for the respondent is overruled.
8. In support of this petition, the learned counsel for the petitioner submits that the order passed by the learned trial Court is nullity as it is neither a speaking order nor does it fulfil the requirements of section 24-A of the General Clauses (Amendment) Act, 1997 to give reasons. Relies on 1998 SCMR 2268, 1988 SCMR 2419, 2006 MLD 996 and 2004 CLC 1090. The learned counsel submits that the learned trial Court neither had the jurisdiction nor any justification to condone the delay in filing objections beyond the statutory period of limitation. In entertaining the time barred objections filed by the respondents, the learned Court had acted illegally and with material irregularity. The learned counsel further argues that the order of the learned trial court suffers from jurisdictional defects insofar as it is in derogation of settled judicial precedents that in the presence of a specific provision, a court cannot bypass the statute on the touchstone of equity. He points out that statutory provisions have to be given effect to in letter and spirit. In support of his contentions, the learned counsel relies on Minoo Hoshang Kapadia, Karachi v. Arnaz Minoor Kapadia, Karachi (PLD 2008 Karachi 271), Muhammad Akram v. Mst. Zainab Bibi (2007 SCMR 1086) and Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through Legal Heirs (PLD 20Q5 SC 311). He further submits that in addition to the fact that section 5 of the Limitation Act was not applicable to the facts and circumstances of the present case, no such application was filed by the respondents. Even otherwise, he submits that the impugned order is in violation of section 3 of the Limitation Act, which mandates dismissal of any application filed after the period of limitation.
He points out that the learned trial Court was harbouring under the wrong impression that 30 days period of limitation for filing . Objections against the award was to commence from the date of de- sealing of the award. He points out that the said conclusion was in derogation of the mandatory provisions of law, which enunciate that the starting point for the period of limitation is the date of service of notice of filing of the award in the Court. By that token, the objections filed by the respondents were filed after expiry of the period of limitation provided by the law of Limitation. The learned counsel finally argues that on account of expiry of limitation for filing objections, a right had accrued to the petitioner to obtain relief in the form of the award being made rule of the Court.
The impugned order has deprived the petitioner of the right to grant of decree which has caused miscarriage of justice.
9. The learned counsel for the respondents, on the other hand has supported the impugned order.
He submits that the award was filed before the learned trial Court, notices on the application were directed to be issued and the matter was adjourned to 2-10-2007, 5-11-2007 and 5-12-2007. He submits that the respondents entered appearance on 18-12-2007 and the case was adjourned for filing of reply to the application under section 14 of the Arbitration Act. 'In the meantime, the respondents moved an application for de-sealing of the award in order to provide them an opportunity to file objections. He submits that at no stage did the court pass an order directing the respondents to file objections. The award was ultimately de-sealed on 25-4-2008. It was the duty of the court to open the award and ask the parties to file objections, if any of the parties was aggrieved of the award, within a period of 30 days. According to the learned counsel, it is settled law that omission on the part of the court should not prejudice anybody. He points out that respondent No,2 had already filed objections on 29-1-2008. The said objections were available on the file and no illegality was committed by the learned court in directing the petitioner to file reply to the objections. Even otherwise, according to the learned counsel, the policy of law is to decide the cases on merits rather than relying on technicalities. In support of his contentions, the learned counsel relies on Province of Punjab through Secretary to Government of the Punjab Communication and Works Department, Lahore and 2 others v. Messrs Usman and Sons. Through Managing Director and others (2002 MLD 414), Sh. Din Mohammad v. Jan Mohammad and another (PLD 1971 Quetta 30) and Col. (Retd.) Muhammad Aslam v. Haji Muhammad Shafi and another (PLD 1993 Lahore 11).
10. I have heard the learned counsel for both parties at length and have gone through the record with their assistance. The questions requiring determination by this Court are:--
(i) What is the starting point for calculating the period of limitation for the purpose of filing objections against the award in terms of Article 158 of the Limitation Act, 1908 and;
(ii) Whether a Court has the jurisdiction to extend the period of limitation prescribed under Article 158 of the Limitation Act.
11. From the perusal of the record, it transpires that the respondent No, 5 rendered the award on 24- 7-2007 and provided signed copies of the written award to the petitioner as well as counsel for the respondents, who received the same under his signatures on the same day, as is evident from a copy of notice dated 24-7-2007 which is available on the record.
12. It is also evident from the record that on the request of the petitioner, the learned Arbitrator filed an application before the Senior Civil Judge, Lahore under section 14(2) of the Arbitration Act on 21- 9-2007. Along with the application the sealed award, record of the proceedings, notices and receipts were also filed. Consequently, the learned Civil Court took cognizance of the matter and issued notices to the respondents. The record indicates that the said notices were received by respondents Nos. 2 and 4 on 11-11-2007 and by respondent No,3 on 12-12-2007. The learned counsel for the respondents, admittedly, entered appearance on their behalf on 18-12-2007, which is evident from a copy of the power of attorney filed by him, which was placed on the court record and bears the official seal of the court dated 18-12-2007. The order sheet indicates that the case was thereafter adjourned mistakenly to 26-1-2007, which necessitated filing of an application for rectification of the mistake. Although notices appear to have been served on the respondents on the said application :on 12-1-2008, no one appeared to represent them on 14-1-2008. On the said date, an application was moved on behalf of the petitioner under section 17 of the Arbitration Act praying that judgment and decree be pronounced on the basis of award dated 24-7-2007 in view of the fact that statutory period for filing the objections had expired and the respondents had not filed any objections despite notice and actual knowledge that the award had been filed in Court.
The learned trial Court issued fresh notices on the said application and adjourned the case for 22- 1-2008, whereafter the matter was adjourned to 28-1-2008. On the said date, the respondents appeared in the proceedings and requested the court to de-seal the award for filing of the objections. The award was ultimately de-sealed on 25-4-2008, whereupon the learned counsel for respondents Nos.2, 3 and 4 requested the court to allow adjournment for filing of objections. This request was opposed by the learned counsel for the petitioner on the ground that statutory limitation for filing of the objections had already expired and the application under section 17 of the Arbitration Act filed by the petitioner was liable to be accepted. After hearing the parties, the application of the petitioner was dismissed, respondents' objections filed earlier (after the expiry of period of limitation) were entertained and the petitioner was directed to file its response to the objections.
13. From a summary of events reproduced above, it is evident that the respondents were in possession of a signed copy of the award much before the award was filed in Court by the learned Arbitrator. It was delivered to the learned counsel for the respondents on 24-7-2007 by the learned Arbitrator. Further, the court had issued notices to the respondents, which were served on 11-12- 2007 and 12-12-2007. Their learned counsel entered appearance on their behalf on 18-12-2007 and also submitted his power of attorney. In my opinion, the respondents had ample notice of filing for the award in the Court and were fully aware of the contents of the award, which was already in their possession, which is evident from the fact that they filed objections on 29-1-2008 despite the fact that the award had not been de-sealed at that stage. It is significant to note that about 48 days had already elapsed since receipt of notice of filing of the award and about 40 days had elapsed since their learned counsel entered appearance and submitted his power of attorney. In these circumstances, in my opinion, the period of limitation had commenced from 11-12-2007/12- 12-2007 and had elapsed on 11-1-2008 on expiry of 30 days. Even if for the sake of argument, the date of commencement of the period of limitation was to be taken from the date on which the learned counsel for the respondents entered appearance i,e, 18-12-2007, the period of limitation had still expired much before the objections were filed on behalf of the respondents on 29-1-2008.
The findings of the learned trial Court that the period of limitation, was to commence from the date of de-sealing of the award is patently against the express word of the law. A plain reading of Article 158 of the Limitation Act shows that the application has to be filed within 30 days of the date of service of notice of filing the award. Admittedly, notices were served on 11-12-2007/12-12-2007, therefore, the statutory period of 30 days elapsed on 10-1- 2008 or in the case of respondent No, 3 on 11-1-2008. Any objections filed after the said date were clearly barred by time.
14. Now the question arises whether the learned trial Court had the jurisdiction to extend time. The answer is in the negative in view of the fact that in the first place no application for condonation of delay was filed and even if such application had been filed, the same could not have been entertained in the absence of an express power in this regard provided by the statute.
15. The learned trial Court has not offered any reason or justification for suo motu condonation of delay in filing the objections beyond the statutory period of limitation and has acted beyond its jurisdiction. It is settled law that in the absence of any specific provision, a court cannot bypass the provisions of statute on the touchstone of equity. A statutory provision has to be given effect to in its letter and spirit.
16. I have gone through the order of the learned trial Court and have not been able to find any reason or statutory provision on the basis of which the learned trial Court came to the conclusion that it was the duty of the court not only to de-seal the award but to call upon the parties to file the objections and that the period of limitation would be deemed to commence from the date of de- sealing of the award and that failure on the part of the learned trial Court to de-seal the award constituted irregularity for which none of the parties could be penalized. There is sufficient authority on the point that the objections to an award are required to be filed within 30 days of notice of filing of the award. The objections filed beyond the statutory period could not be taken into consideration by the Court. In the case of Superintending Engineer, Communication and Works, Highway Circle, Kohat v. Mian Faiz Muhammad and Co. Akora Khattak (PLD 1996 SC 797), the Hon'ble Supreme Court of Pakistan held that the object of giving notice of filing of the award is to enable the parties to file an application for setting aside of the award. Such an application has under Article 158 to be filed within 30 days of the service of notice of the award. Reference may also be made to Province of Punjab through Secretary to Government of Punjab, Communication and Works Department v. Awan Engineering Enterprises (2006 YLR 881). This Court while examining the provisions of Article 158 of the Limitation Act held that a specific time, has been prescribed for the purpose of filing of objections; the Court has no authority and jurisdiction under the law, to extend this period of limitation as enunciated by the judgment reported as Dr. Abdul Waris v. Javed Hanif and others (1983 SCMR 716).
17. This question was also examined in Airports Development Agency Ltd v. Messrs. M.Y. Corporation and others (PLD 2001 Karachi 158). The learned Court by placing reliance on Dr. Abdul Waris v.
Javed Hanif and others (1983 SCMR 716) held that "It goes without saying that it is by now settled law that objections have to be filed within 30 days and if they are filed beyond the statutory period then they cannot be taken into consideration, especially in the absence of any application for condonation of delay and possible justification as to why the objections were not filed within the time prescribed by law.
18. The facts and circumstances on the basis of which Fakir Muhammad Behlim v. Exxon Chemicals Pak. Ltd (1991 MLD 1438) was decided are quite similar to the facts and circumstances of the present case. It may be useful to reproduce a portion of the said judgment in which relying on Pakistan through General Manager Pakistan Railways v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 800, the Court held as follows:-- "Regarding the other point taken by the learned counsel for the appellant that no notice of filing of award was given to the appellant nor any opportunity was given to him to file his objections, a reference to the case diary of the trial Court would show that after filing of the award on three occasions the present appellant had moved application for adjournment while once the respondents had moved application for adjournment and on all the four occasions the matter was adjourned for filing of objections to the award. This itself amounts to sufficient notice to the parties that they were required to file the objections as required under the provisions of Arbitration Act. In the circumstances of the case it may not be necessary that a formal notice be issued, but the court is competent even to give oral notice. In the present case the advocates for parties have been appearing on the dates and taking dates for filing of the objections. Consequently the parties cannot raise the said objection at this stage. In my above conclusion I am fortified by a decision given by the Honourable Supreme Court in the case of Pakistan through General Manager Pakistan Railways v. Messrs Q.M.R. Expert Consultant PLD 1990 SC 800 wherein their Lordships have held that notice can be given even orally by the Court to the Advocates for the parties in case of arbitration"
19. In this regard reference may also usefully be made to Pakistan through General Manager Pakistan Railways v. Messrs Q.M.R. Expert Consultants (PLD 1990 SC 800), where the Hon'ble Supreme Court of Pakistan held as follows:-- "We may observe that though subsection (2) of section 14 of the Act refers to the service of the notice upon the parties, but this will include their authorized agents in terms of the above provisions of the Code. In this regard, reference may be made to the case of The Chairman, Railway Board, Lahore and 2 others v. Hafiz Abdul Qayyum PLD 1984 Pesh. 285, the case of Province of West Pakistan (Punjab) through Secretary, Irrigation and Power Department and another v. Mian Abdul Hamid and Co. 1985 CLC 1170, and the case of Nilkantha Sidramappa Ningashetti v.
Kashinath Somanna Ningasheetti and others AIR 1962 SC 666, in which it has been held that notice under section 14(2) of the Arbitration Act can be given even orally by the Court to the Advocates for the parties.
20. On the basis of aforesaid discussion, I find that notice of filing of award was duly served on the respondents, they had till 11-1-2008 to file the objections against the award. This was not done. The objections were filed on 29-1-2008, which were patently barred by time. No effort was made to explain the delay. No application for condonation of delay was filed. In these circumstances, the learned trial court had no power'or jurisdiction to extend time for filing objection. Further, the findings of the learned trial court that the period of limitation for filing of objections would start running from the date that the award was de-sealed, had no legal basis and was patently erroneous. I also find that the respondents had knowledge and notice of the award since 24-7- 2007, which is substantiated by the fact that they filed their objections on 29-1-2008, which was much before the award Was de-sealed. Consequently, I am in no manner of doubt that the objections filed by the respondents against the award were filed beyond the period of limitation prescribed by section 158 of the Limitation Act. Further the delay could not have been condoned by the learned subordinate court of its own motion and on equitable grounds.
21. For the foregoing reasons, this petition is accepted. The order dated 28-4-2008 passed by the learned Civil Judge, Lahore is set aside being unlawful and without jurisdiction. The objections filed by the respondents are rejected, having been filed beyond the period of limitation. As a result the learned trial Court is directed to proceed with making the award a rule of the Court. There shall be no order as to costs.