' This is a suit for declaration, injunction and for restoration of articles and goods. The plaintiffs have prayed for the following reliefs :- "(a) For Declaration that ; the Judgment and Decree dated 7-7-1979 passed in Suit No, 2576/79 are illegal, without jurisdiction, null and void and not binding on the plaintiffs as the same have been obtained by fraud, misrepresentation and forgery.
(b) for Permanent Injunction restraining the defendants, their servants and agents or any person claiming through or under them, from interfering or disturbing with the peaceful possession of the plaintiffs of Shops Nos. 1 and 2. House/Plot No, R-979/14, Federal 'B' Area, Karachi;
(c) restoration of articles/goods of the plaintiffs in good and marketable condition which were taken from their shops on 3-9-1979 or its value Rs, 85,959 ;
(d) Costs of the Suit ; and
(e) Such further relief/s as this Hon'ble may deem fit and proper in the circumstances of the case."
2. The briefs facts leading to the filing of the above suit are that plaintiff No. 1 has been a tenant of shop No. 1 in house on Plot No, R-979/14, Federal 'B' Area, Karachi at the rent of Rs, 100 per month from 1972, and whereas plaintiff No, 2 has been a tenant of shop No, 2 in the same building and that in 1974 the above rent was increased to Rs, 130 p.m. From Rs,
100. It has been averred that in June 1979 defendants Nos. 1 and 2 asked the plaintiffs to further increase the rent of shops from Rs, 130 to Rs, 500 per month, to which the plaintiffs did not agree. It has been further averred that on the basis of 2 forged tenancy agreements dated 7-1-1976 defendants Nos. 1 and 2 involved arbitration clause and obtained an uncontested award dated 14-3-1979 from defendant No, 4, which was filed on 1-7-1979 in the Court of 4th Civil Judge at Karachi, before whom an alleged attorney of the present plaintiffs lsrar Nabi Khan, defendant No, 3 appeared on behalf of the plaintiffs and consented to the award on 3-7- 1979, which was made a rule of the Court by an order dated 7th July, 1979. It has also been averred that the plaintiffs never executed any power of attorney in favour of defendant No, 3, who consented to the aforesaid award. It may be observed that the alleged sole arbitrator, defendant No, 4 through his alleged award inter alia ordered the ejectment and recovery of the amount, namely Rs, 15,000, Rs, 2,400 and Rs, 500 per month for the period from March 1979 till the handing over possession of the shops. He also purported to appoint defendant No, 5 Mian Zafar Abmad as the Commissioner for the purpose of executing the award with the power to break open the locks of the two shops with the Police aid. It may be pertinent to reproduce para. 10 of the award, which reads as follows :- "That for the purpose of affecting the Award, in terms detailed above, I hereby appoint Mian Zafar Ahmad son of Late Ibrahim, Journalist Federal 'B' Area, Karachi as Commissioner, with powers to take Police aid also. In case the two shops Nos. 1 and 2 on plot No, R-979/14, Federal 'B' Area, Karachi are found locked after the Award is made the Rule of the Court and/or the arrears of rent due and future rent is not paid and remains outstanding and/or the damages claimed is not paid by the defendants to the plaintiff, the Commissioner may break open the locks of the two shops in the presence of witnesses and in the presence of witnesses also make inventory of the goods, merchandise, furniture's etc. Of the two shops, put the same in open auction and pay out of the sale proceeds a sum of Rs, 15,000 as damages and the outstanding rent then found due, to ' the plaintiff and if after paying the aforesaid amounts, anything ( reaming in balance, the same shall be deposited by the Commissioner in Court. The Commissioner after taking possession of the two shops, will hand over possession of the same to the plaintiff."
3. After the above award was made a rule of the Court, defendants Nos. 1 and 2 filed an application under section 151, C. P. C. Dated 1-8-1979 praying therein that the Commissioner, i,e, defendant No, 5 named in the award be appointed to execute the decree, this application was allegedly consented to by the Advocate for the present plaintiffs on 6-8-1979 and the learned Civil Judge granted the same on 11-8-1979 Armed with the above order defendant No, 5 went to execute the decree with the Police raid on 3rd September 1979. The plaintiff's goods were removed from the shops and the possession of the shops was allegedly given to the attorney of defendants Nos. 1 and 2. (It has been denied by the plaintiffs that they were dispossessed). However, defendant No, 5 through his report dated -4-9-1979 reported that the Plaintiffs had taken over the possession unauthorisedly again, and that he had taken over certain articles, which according to para. 7 of his counter-affidavit filed by him in the above suit, he had sold the same for Rs, 1,375 on 13-2-1980.
4. The present plaintiffs filed an application under section 30 of the Arbitration Act before the Civil Judge, but the same was dismissed on the ground that it was time barred. The plaintiffs also filed a Suit No, 3371/1979 on 29th August, 1979, in which a stay was obtained. However, on 11th March 1980 the above suit was withdrawn after the filing of the present suit on 13-2-1980.
' Along with the present suit the plaintiffs have filed an application under Order XXXIX, rules 1 and 2 read with section 151, C. P. C. For restraining the defendants from interfering and disturbing the peaceful possession of the plaintiffs' shops. Defendants Nos. 1 and 2 have filed joint counter affidavit, whereas defendants Nos. 4 and 5 filed separate counter-affidavit. Defendant No. 1 has also filed an application under Order VII, rule 11 read with section 151, C. P. C. For rejection of plaint on the ground that the suit is barred by section 32 of the Arbitration Act.
5. (a) In support of the injunction application Mr. Abdul Majid Khan has referred to the case of Malik Umar Hayat Tiwana etc. v. Malkani Sahibzadi Tiwana Etc. (1), the case of M. Moosa v. Muhammad and others (2), the case of Khan Azizul Hassan Khan v. Haji Muhammad Ismail (3) and the case of Sanwcddas v. Dharmumal and another (4).
' In the above first case Mr. Afzal Zuilah, J. (as his Lordships then was) was pleased to hold that a suit for setting aside a decree obtained on the basis of an award obtained by fraud is competent.
Whereas in the second case it was held that a judgment obtained by frund is void. In the above third case it was held that an agreement in violation of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, is void, whereas in the above fourth case of the Supreme Court, it was held that ejectment order in violation of Urban section 13 of the West Pakistan Rent Restriction Ordinance is void.
(b) On the other hand Mr. Dewan Bashir Ahmad has referred to the case of Abdul Karim v. Mirza Bashir Ahmad (5) and the case of Messrs Badri Nap rayan Agarwala v. Messrs Pak Jute Balers Ltd.
(6). In the first case it was held by the Supreme Court that a suit for determining existence, effect or validity of an arbitration agreement or an award is barred by section 32 of the Arbitration Act, but the latter section does not bar a suit, which proceeds on the basis of certain acts done by the parties after the acceptance of the award. Whereas in the second case it was held that the existence or the validity of the award can be challenged through objections/application under section 30 read with section 33 of the said Act, but the suit is not competent. It may be observed that in the aforesaid 1970 SC case, the trial Court as well as the High Court did not consider the defendant's objection to the award relating to the existence of the arbitration agreement, but held that a separate suit should be filed. However the Supreme Court reversed the above two judgments and held that the trial Court should have considered the above objection.
(c) Mr. Abdul Majid Khan learned counsel for the plaintiff has urged {{FOOT NOTE}}
(1) PLD 1978 Lah. 1253 (2) 1975 SCMR 115
(3) PLD 1972 Lah. 142 (4) 1973 SCMR 434
(5) PLD 1974 SC 01 (6) PLD 1970 $ C 43 {{FOOT NOTE}} ' that section 32 does not bar a suit when a decree is challenged and not an award. In support of the above contention he has relied upon para. 6 of the aforesaid Lahore case of 1978, in which Afzal Zullah, J. (as his Lordship then was) has made a distinction between an award and decree in the following words relevant portion of para. 6 reads as follows :- "I do not accept the general proposition that even if a decree is challenged on ground of fraud, the suit would be barred simply because the decree has been passed as a result of proceeding under the Arbitration Act. Fraud vitiates all proceedings and if proved, the decree would be rendered into nullity and thus void. A civil suit in the Court of general jurisdiction would be competent. The mere fact that the decree purports to follow the award would not attract the provisions of section 32 so as to bar the suit with regard to the decree as well. It is not without significance that the decree and/or other orders in the nature of decree passed under the Arbitration Act have not been included in section 32. Faced with this difficulty Mr. Wasim Sajjad stressed the omission of certain grounds in the plaint to bring the decree under challenge."
From the last para. Of the plaint quoted hereinabove, it is evident that one of the reliefs prayed for, namely, relating to the restoration of articles/goods of the plaintiffs in marketable condition which were taken from their shops on 3-9-1975 allegedly valuing Rs, 35,959, is an independent relief which does not involve determination of the existence of arbitration agreement or an award or their effect, and, therefore, prima facie it is not barred by aforesaid section 32 of the Arbitration Act. The alleged act of removing of the articles/goods had taken place subsequent to the giving of the alleged award and subsequent to the making of it a rule of the Court. The above conclusion which I am inclined to take also gets support from the aforesaid case of Supreme Court 1974, in which it was held that the subsequent acts after the acceptance of the award can be the subject-matter of a suit. It has been urged by Mr. Dewan Bashir Ahmad learned counsel for the defendants that in the instant case as the plaintiffs have not accepted the award, the aforesaid 1974 Supreme Court case cannot be pressed into service. In my view the plaintiffs' case is on better footings than the case, which was the subject-matter of 1974 the Supreme Court.
' In view of the above discussion, I dismiss defendant No, l's above application under Order VII, rule 11, C. P. C.
(d) Reverting to the question, as to whether an ad interim injunction granted by me on 9-2-1980 be confirmed or be vacated, it may be observed that the aforesaid 1978 Lahore case supports plaintiffs' contention that a suit to challenge a decree obtained on the basis of fraud is competent and that there is a distinction between an award and a decree. The plaintiffs therefore, have a prima facie case, the balance of convenience is also in their favour and they shall also suffer irreparable loss if the injunction will be vacated. It may be observedthat the award in question was an unusual one, inasmuch as under para. 10 of the award defendant No, 5 was appointed as a Commissioner with the power to break open locks of the shops in question with the Police aid and to take over possession of the shops and of the goods for realising the amount awarded.
Furthermore, the above award was made a rule of the Court on the consent of the alleged attorney of the plaintiffs, namely, defendant No,
3. The above unusual facts are themselves sufficient to warrant the confirmation of the ad interim injunction dated 9-2-1980. I accordingly confirm the same.
Injunction confirmed.