Ch. Muhammad Ibrahim Zia, J.--This appeal is filed under Section 42(11)(d) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, against the judgment and decree of the High Court dated 14.11.2008.
2. The brief facts giving rise to this appeal are that the appellant filed a suit against the respondents on 25.11.2000 for recovery of amount Rs.2,99,85,874/- in the Court of District Judge Muzaffarabad. The respondents submitted their written statements, however, during the proceedings of the suit, the parties agreed for appointment of an Arbitrator. The trial Court vide its order dated 15.10.2002 appointed Ch. Muhammad Zaman, Chief Engineer P.W.D., as Arbitrator and formulated five points as terms of reference. The Arbitrator submitted his first report on 30.9.2003 in presence of counsel for the parties. On hearing the parties, the trial Court arrived at the conclusion that the report was incomplete and the Arbitrator has left fifth point of reference unattended. With the agreement of the parties the trial Court vide its order dated 8.3.2004 again referred the matter to the Arbitrator for submitting complete report. The Arbitrator submitted his report on 9.10.2004 in presence of counsel for the parties, but none of them filed objections. However on 15.12.2004 objections on behalf of plaintiff-appellant were filed with the prayer of rejection of Arbitrator's award. The learned District Judge after hearing the counsel for the parties recorded findings that neither the objections were filed within the prescribed period of thirty days nor any legal ground was brought on record for rejection of award. The Court passed judgment and decree in terms of award and dismissed the suit on 29.12.2004. However, it was also verdicted that an amount of Rs.38,34,645/- is recoverable from the plaintiff.
3. Feeling aggrieved from the judgment and decree of the trial Court, the appellant filed an appeal in the High Court on 23.2.2005. The learned High Court modified the judgment and decree of the trial Court to the extent of finding regarding overpayment to plaintiff-appellant Rs. 38,34,645/-, however, the rest of the judgment and decree was upheld.
4. Now this second appeal is filed assailing the judgments and decrees of both the Courts below on the ground that both the Courts have wrongly observed that the objections against the award of Arbitrator were time barred. The trial Court has failed to exercise powers vested in it according to law and the High Court has not properly attended and appreciated important points.
5. Kh. Attaullah Chak, the learned counsel for the appellant, reiterated the grounds incorporated in the memorandum of appeal, which need not be repeated. To substantiate his arguments he placed reliance on the following case law:--
(i) Province of Punjab and others vs. M/s. Usman & Sons and others [2002 MLD 414],
(ii) Pakistan Agriculture Storage and Service Corporation vs. Sh. M. Latif and another [1999 MLD 2773].
(iii)Muhammad Yusuf vs. Gul Zaman [2004 MLD 735].
6. Mr. M. Tabassum Aftab Alvi, the learned counsel for the respondents, while controverting the arguments of the learned counsel for the appellant, submitted that the appellant despite notice and knowledge has failed to file objections against the Arbitrator's award within the prescribed period of limitation. He submitted that according to law the objections filed after the period of limitation are not worth consideration. In this regard he placed reliance on the following authorities:-- (i)Airports Development Agency Ltd. Vs. M/s M. Y. Corporation and others [PLD 2001 Karachi 158].
(ii)M/s. Shaft Corporation Ltd. Vs. Govt. of Pakistan through D.G. Defence [PLD 1994 Karachi 127].
(iii)Dr. Abdul Waris vs. Javed Hanif and others [1983 SCMR 716].
The learned counsel further contended that this is second appeal and the appellant has failed to make out any ground for consideration of this Court in second appeal. According to him the grounds agitated on behalf of appellant cannot be considered in second appeal and the concurrent findings of fact recorded by the trial Court and the first appellate Court cannot be disturbed at this stage. In this regard he referred following case law:-- (i)Fazal Karim vs. Abdul Manaf and another [1997 SCR 26].
(ii)Adalat Khan vs. Fazal Hussain & another [1995 SCR 151] (iii)Muneer Hussain Shah and others vs. Kazim Hussain Shah and others [1998 SCR 76].
The learned counsel also argued that the appellant has not specifically taken stand before the trial Court in relation to date of knowledge of submission of report by Arbitrator, therefore, the same cannot be agitated in this Court. Moreover the Arbitrator is not bound by technicalities of law, thus his report cannot be interfered on technical grounds. In this regard the learned counsel placed reliance on a case titled Azad Govt. of the State of Jammu & Kashmir vs. Brig. Muhammad Aslam Khan [PLD 1981 AJ&K 71] wherein it was observed as under:-- ".......Coming to the question of appraisal of evidence, it may be pointed out that this is a settled law that Arbitrator is not bound by the technicalities of law; neither the principle of Evidence Act nor C.P.C. are applicable to the proceedings before the Arbitrator. This Court while adjudging the validity of an award, does not sit as a Court of appeal over the Arbitrator in the sense which is normally understood in our judicial system. If the findings of the Arbitrator are based on some evidence and are not perverse and if there is no misreading or non-reading of evidence, the findings of the Arbitrator cannot be disturbed."
He also placed reliance on another case titled Mst. Umar Bibi and others vs. Bashir Ahmed and others [PLD 1968 Lahore 629].
7. We have given due consideration to the arguments advanced at bar and perused the record.
The interim order recorded by the trial Court on 9.10.2004 makes it abundantly clear that the Arbitrator submitted his report in presence of counsel for the parties, but no objections were filed by the appellant in the prescribed period of thirty days, as stipulated under Article 158 of the Limitation Act. On this point we have considered the case law referred by both the learned counsel for the parties. The case law referred by the learned counsel for the respondents is found fully applicable to the proposition involved in this case. Reference may be made to a case reported as M/s. Shaft Corporation Ltd. Vs. Gout. of Pakistan through D.G. Defence [PLD 1994 Karachi 127] wherein it was observed that where a party had knowledge of filing of award in Court, further notice need not be issued to it by Court informing about the filing of award. It was held that objections to award should have been filed within thirty days from the starting point of limitation. Thus, the objections filed later than thirty days were held to be beyond time. Same view was adopted by Supreme Court of Pakistan in a case reported as Dr. Abdul Waris vs. Javed Hanif and others [1983 SCMR 716] wherein it was observed as under:-- " It appears from the order of the trial Court that on this date the petitioner had moved only an application for production of the agreement and had not filed any formal objections. The time for filing objections is prescribed by law and, therefore, it had to be done within the period so prescribed. The petitioner had appeared before the civil Court on three preceding dates, namely, 5th January, 1981, 18th February, 1981 and 13th March, 1981. He had, therefore, ample opportunity to have asked for the production of the agreement and, to have filed his objections within time."
8. For setting aside an award the grounds are incorporated in Section 30 of the Arbitration Act, 1940, which reads as under: "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; (c)that an award has been improperly procured or is otherwise invalid.
When the objections filed by the appellant are considered in juxtaposition with the above referred legal provision, there remains no ambiguity that none of the statutory grounds has been mentioned in the aforesaid objections.
9. We are persuaded that the Courts below have rightly held that the plaintiff-appellant failed to file objections within prescribed period of limitation, thus the trial Court has rightly made the award of Arbitrator as decision of the Court. As has been, observed in the preceding paras that admittedly this is second appeal and the scope of second appeal is confined only to the grounds stated in Saction 100 C.P.C. The appellant as filed to make out any valid ground according to statutory provisions. The factual points which are agitated on behalf of appellant have been concurrently resolved by Courts below. This Court has always declined to interfere with the concurrent findings recorded by the subordinate Courts. This principle has consistently been followed. In this regard we find support from the views enunciated in the following authorities.
In Muneer Hussain Shah and others vs. Kazim Hussain Shah and others [1998 SCR 76] it was observed as under:-- "The High Court also observed that concurrent findings of facts recorded by the Courts below cannot be interfered with, unless some gross illegality, misreading, non-reading of evidence or some substantial injustice has been pointed out. This observation made by the High Court too is in consonance with the settled principles of law which is hereby endorsed and approved."
In another case titled Adalat Khan vs. Fazal Hussain & another [1995 SCR 151] it was observed that:- - " Even if a different conclusion from the one reached by the Courts below is possible, the High Court is not legally competent to disturb the finding until and unless a case of non-reading or misreading of evidence is made out or a gross illegality is shown to have been committed while appreciating evidence of a witness."
10. In the light of what has been stated above, finding no force in this appeal it is hereby dismissed.