Through this Regular Second Appeal the appellant has ' challenged the judgment and decree dated 16.10.1998 passed by the Additional District Judge, Rahimyarkhan whereby appeal filed by the appellant was dismissed against the judgment and decree dated 28.2.1993 passed by the Civil Judge, Sadiqabad whereby suit of Respondent No, 1 was decreed.
2. Brief facts of the case are that Respondent No, 1 Mst. Kaneez Fatima filed a suit for rendition of accounts on 15.9.1988. During the pendency of the suit on 2.9.1990 the learned counsel for Defendants No, 1 and 3 made a statement that for appointment of Manager he has no objection and his decision will be final. On the same date the learned Trial Court ordered as under-- {{URDU TEXT}} The order sheet further reveals that on 13.4.1991 the learned Trial Court ordered that the report of the Referee is ambiguous and further directed the parties to produce complete accounts before the Referee and the Referee was directed to make a report after complete scrutiny of the said accounts. Therefore, it was sent to him to make a complete report. On 22.4.1992 the learned Trial Court noted that the report of Referee has been received and learned counsel for the plaintiff made the following statement: That the plaintiff wants to withdraw the suit to the extent of Defendants No, 2 to 4 and suit be decreed against Defendant No, 1 on the basis of reporter Referee."
3. The learned Trial Court ordered that in accordance with the report of Referee Rs, 1,00.000/- is outstanding against Defendant No, 1, therefore, ordered the plaintiff to deposit the Court-fee on the amount of Rs, 1,00,000/- till 25.6.1992, otherwise suit will be deemed to have been dismissed. The order sheet further reveals that on 25.6.1992 the application was made for extension for depositing of Court fee on the ground that the other party has challenged the order for appointment of Referee through an application under Section 12(2), CPC. Finally on 28.2.1993 the suit was decreed on the basis of alleged report of the Referee subject to payment of Court-fee. The defendant/petitioner filed an appeal against the judgment and decree dated 28.2.1993 before the learned first Appellate Court which was dismissed, hence this RSA.
4, Learned counsel for the appellant argues that by no stretch of imagination the proceedings and the report can be considered as a statement of the Referee under Article 33 of the Qanun-e- Shahadat Order, 1984 but at the most it can be termed as an award given by the arbitrator.
5. On the other hand, learned counsel for the respondents states that the matter was referred to Referee and if he has given a repot after scrutiny of the accounts of the parties that makes no difference and his report will be presumed to be of a statement of Referee.
6. I have heard the arguments advanced by the learned counsel for the parties and have examined the material available on record.
7. It is noted that actually the statement of the counsel for the defendants was that a Manager be appointed and the language and procedure adopted by the Trial Court also show that the Trial Court has not appointed Referee in terms of Article 33 of Qanun-e-Shahadat Order, 1984 but it seems that the Trial Court was referring a matter to a Referee to scrutinize the accounts of the parties and give an award on the basis or accounts of the parties. However, I am clear in my mind that when a matter is referred to a Referee, the statement of the Referee is presumed on the basis of his Knowledge already he has having before the reference of a matter. If any report is made by the alleged Referee after scrutinizing the record and after considering the evidence, of the parties, that cannot be termed as a statement of a Referee but that can be presumed as an award rendered by the arbitrator. In this view of the matter, I am clear in my mind that this was not a statement of a Referee but it can be termed as an arbitration award. If it is an arbitration award, it is necessary for the Trial Court to invite the parties to submit their objections on the award given by the arbitrator which is missing in this case. The learned Trial Court has straightway decreed the suit without providing an opportunity of raising objections on the alleged report of the Referee.
In view of the above discussion, I set-aside the judgments and decrees of both the Courts below and remand the matter to the Trial Court with the direction to presume the report of the Referee as an award submitted by the Referee and invite the parties to submit their objections and decide the case in accordance with law after hearing both the parties.