MIAN FASIH-UL-MULK, J.---Predecessor of the parties was Mian Mussarrat Shah, a landlord of the area, who besides other landed properties had also purchased Plots Nos.58, 65 and 66 in khasra No.468 from the Municipal Committee in the years 1942 and 1943. Plot No.58 was converted into a residential house and transferred in the name of his wife Mst. Sabz Pari, as dower vide dower deed dated 1-1-1954, from whom the same was purchased by petitioners for a sale consideration of Rs.Two lacs with delivery of possession. On the remaining plots i.e. 65 and 66, five houses with two garages were constructed and as per Will deed dated 13-11-1972 of Mian Musarrat Shah, the same were divided amongst all his legal heirs. After the death of Mian Musarrat Shah, when his succession was opened, the suit plots/houses were also treated as part of his legacy and devolved upon his legal heirs according to their sharai shares as per inheritance mutations No.5946 dated 6-12-1992 and No.6056 dated 3-12-1992, which annoyed the petitioners, who filed instant suit against the legal heirs of Mian Musarrat Shah for declaring the said mutations as illegal, ineffective upon their rights and liable to cancellation on the ground that the suit plot was given in dower by Mian Musarrat Shah to his wife whereas in the other houses they were also given shares along with other legal heirs as per- Will deed; hence the same were required to have been excluded from the legacy of Mian Musarrat Shah.
2. The suit was contested by defendants wherein the genuineness and propriety of the Dower Deed and Will Deed were questioned.
3. Issues in the case were framed but on 7-5-1997 both the parties submitted applications in Court under section 21 of the Arbitration Act, 1940 for referring their dispute to the arbitrators for settlement and submission of award. Along with the applications, they also submitted a document titled "'gramma Baraa-e-amadg ee razi name" (consent for settlement and abiding by the award of arbitrators) whereupon the trial Court with express consent of the parties and on their recommendation/nomination appointed Mian Hidayatur Rehman and Mian Inayatur Rehman as Arbitrators with Taimoor Shah, advocate, as their senior member and referred the matter to them for submission of award.
4. It was in this background, when the Arbitrators submitted their award in Court on 27-11-1997, over which the respondents i.e. Defendants Nos.7 to 14 filed objection after about 77 days, mainly on the ground that only some of the defendants had agreed for settling the dispute through arbitration and not all the defendants. Another application was also moved by Mian Raza Shah, defendant No.6 (respondent No.2 herein) for rejecting the award of arbitrators as the parties had agreed on four arbitrators in the agreement deed but the said deed was tampered with and the name of one of the arbitrators .Was struck as a result of fraud and collusion.
4-A. The trial Court however dismissed all the applications and made the Award of Arbitrators as Rule of the Court vide judgment dated 10-9-2005. The defendants went in appeal before the District Judge, who accepted the appeal and set aside the order of trial Court. The plaintiff/petitioners preferred revision petition before this Court, which was accepted on 17-4-2003 and the matter was remanded to the trial Court for framing issues on the objection applications of defendants and reply of plaintiffs and thereafter deciding the fate of the references and award.
5. The trial Court complied with the orders of this Court and after doing the needful again dismissed the objection applications. The respondents filed appeal before the Additional District Judge-XI, Peshawar, who vide judgment dated 11-12-2006 accepted the appeal, set aside the impugned order of trial Court and remanded the case to the trial Court for decision of the case on merits after recording evidence of the parties.
6. Petitioners, feeling aggrieved of the appellate Court's decision, have now filed instant revision petition with a prayer to set aside the impugned judgment.
7. Learned counsel for petitioners argued that not only the objection applications filed by respondents were time barred under Article 158 of the Limitation Act but all the legal heirs of Mian Wilayat Shah, Mst. Chaman Ara etc. Had given a registered General Power of Attorney to Mian Raza Shah son of Wilayat Shah (respondent No.2), which power of attorney was also signed by all the legal heirs of Musarrat Shah, who duly signed the Arbitration Agreement submitted before the Court and also appointed an Advocate,; hence findings of the appellate Court are based on misreading, non-reading and incorrect appraisal of the record. That the application of Mian Raza Shah regarding appointment of four arbitrators is totally misleading as the parties as well as the Court had decided that four persons could not finally decide the matter, as such only three persons were nominated by the parties and accepted by the Court. There was no objection against the said appointment, the parties including Mian Raza Shah appeared before the Arbitrators; hence the objection was merely an afterthought on account of the decision of the Arbitrators being against them. The learned counsel also argued that minor Shah Taj, respondent No.9, was duly represented by his mother Mst. Shakila Begum, who was appointed as guardian in the proceedings and even otherwise the arbitrators have made no discrimination in the award between the rights of the minor and other respondents. The learned counsel in support of his contentions placed reliance on certain judgments of the superior Courts.
8. Learned counsel for respondents defended the impugned judgment of the appellate Court and stated that the appellate Court has rightly come to the conclusion that no specific powers of referring the dispute to the arbitrators were given to Mian Raza Shah in the Power of Attorney, so Mian Raza Shah could not have given consent for referring the dispute to arbitrators by the respondents. The learned counsel in support of his contention also referred to some rulings of the superior Courts on the point.
9. I have heard learned counsel for the parties and have also perused the record.
10. So far as the questions of submission of applications by both the parties under section 21 of the Arbitration Act, 1940 and agreement deed therein expressing their intention to refer the matter to arbitration and to abide by the award are concerned, there is no denial from either side. As per record, there was an agreement to refer the dispute to arbitration, there was a proper reference to arbitration, and there was an adjudication/decision of arbitrators after hearing both the parties for a valid arbitration.
11. The objections of respondents are however that all the legal heirs of Musarrat Shah had not signed the agreement, as no power was bestowed on the Attorney Mian Raza Shah to refer the dispute for arbitration. The Attorney given to Mian Raza Shah is available on file, which reveals that the same being a General Power of Attorney had empowered Mian Raza Shah by the female heirs of Mian Wilayat Shah as well as Mst. Shakila, widow of Mian Yousaf Shah, to do all acts with regard to their landed properties including compromise on their behalf. The power of attorney under which the agent acted authorized him to attest mutations on their behalf, give possession, evict tenants, receive rents, execute rent deeds, represent them in Courts, file suits, written statements, written replies, submit list of witnesses, move application for restoration of suits, make affidavits, attest the same, file appeals, objections, review, move application for execution, compromise etc. Etc. The expression "general power of attorney" has not been defined either in the Civil Procedure Code or in any other statute but according to the well established principle, a general agent is one who has authority arising out of and in the ordinary course of his business or profession to do some act or acts on behalf of his principal in relation thereto or one who is authorized to act on behalf of the principal generally in transactions of a particular kind or incident to a particular business. In the case of Concentrate Manufacturing Company of Ireland and 3 others v. Seven-Up Bottling Company (Private) Limited and 3 others (2002 CLD 77) it has been held that:- "Agent is the connecting link between the principal and third person; a sort of conduit pipe or an intermediary who has the powers to create legal relationship between the principal and third party. Agent has competence to make the principal responsible to the third person and is an imperative bridge by crossing which, the third person can reach the principal to enforce his legal right or vice versa. Principal is liable to the third person for all the acts and deeds performed, within the authority or agency, by his agent, as to those were personally performed by him."
In the case of Muhammad Rafique v. Messrs Bawany Sugar Mills Ltd. (1999 MLD 3273) it is held with regard to a Power of Attorney that the same authorizes the person to act for the principal in all matters relating to settlement, adjustment and compromise of suit. Several acts which attorney is expected to do for achieving object constitutes 'one' transaction but power that is conferred on him is general in so far as contemplated transaction is concerned. In such an eventuality, the Reference of a matter for arbitration on behalf of his principal would be within his competence.
12. The General Attorney of respondents had appointed Mr. Shahzad Akbar Khan, advocate as their counsel and the `vakalat-nama' was signed by Mian Raza Shah besides respondents Nos.11 and 14 namely Mian Firasat Shah and Mian Qinyayat Shah, sons of Mian Musarrat Shah. As per contents of vakalat-nama, all the powers granted to General Power of Attorney by the respondents were conferred on the counsel. The Apex Court in the case of Muhammad Hussain and others v. Ghulam Rasool and others (1983 SCMR 231) has laid down that:-- "Counsel representing parties had agreed to the reference of the dispute to arbitration. Their statement was recorded by the Court and given effect to. It has not been shown that the learned .Counsel representing the parties particularly the petitioners were in any way incompetent in the ,natter of making such a statement . Or referring the matter to arbitration. The requirements of law were substantially satisfied."
In view of the above dictum, I would support the view taken by the trial Court that counsel for respondents was competent to make statement on behalf of respondents for referring the matter to arbitration. The objection of respondents that neither their consent for arbitration was obtained nor all the respondents had signed the agreement for referring the matter to arbitration is not of vital importance in view of the acts done by Mian Raza Shah on their behalf as their duly nominated General Power of Attorney. The learned appellate Court has thus wrongly reversed the findings of the trial Court in this regard.
11. When the matter was referred by the Court on the request of both the parties to arbitrators and when the respondents duly participated in the proceedings before the arbitrators and when the arbitrators as per directions of the Court submitted the award and when it was in the agreement/consent for settlement of dispute through arbitration that decision of arbitrators would be made as rule of the Court, and when the objection so raised by respondents after submission of Award was not taken before the arbitrators, then the respondents cannot competently take objection that the award was invalid for the reasons stated therein.
12. As per order sheets of the trial Court, when the award was filed in Court, the parties were present in Court but the respondents waited for a compromise and when the matter of compromise could not reach to its logic, then they filed objection applications beyond the prescribed period of 30 days. The respondents were in the knowledge of the decision made by arbitrators and they were required to have filed the E objection applications within time. The question that no notice under section 14(2) of Arbitration Act was served on them is merely a technical ground, having no force in the circumstances of instant case. As per ruling of the august Supreme Court of Pakistan in the case of Ashfaq All Qureshi v. Municipal Corporation, Multan (1985 SCMR 597), the provision of the law is meant to enable the parties to know that the award has been filed in Court so that they may file their objections, if any, within the time prescribed, a formal compliance in strict conformity with the relevant provision of law is not to be insisted upon when substantial compliance has been made of it. Similar view has been taken by the Karachi High Court in the case of Messrs Shafi Corporation Ltd. v. Government of Pakistan (PLD 1994 Karachi 127). As stated above, the respondents were in the knowledge of filing of Award in Court but they did not file objections to award within prescribed period. It is held in the case of Dr. Abdul Waris v. Javed Hanif and others (1983 SCMR 716) that:- "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 objection is prescribed by law and, therefore, it had to be done within the period so prescribed."
The above ruling was re-enunciated by the apex Court in so many pronouncements such as PLD 1996 Supreme Court 797. In this case too, respondents after filing of award sought time for a compromise and did not file objection within time; hence the trial Court has rightly termed their applications as barred by time. The learned appellate Court again has fallen into error to reverse the findings of the trial Court on the ground that no notice was given to the parties about filing of award. As F stated above, when both the parties were present at the time of filing of the award, then there was no need of issuing a notice to the respondents.
13. No doubt, Mst. Shah Taj, respondent was a minor but she was duly represented by her mother Mst. Shakila Begum and on this count too the award was not liable to be set aside merely for the reason that the Court did not properly appointed a guardian-at-litem for her. The apex Court in the case of Mst. Naziran Bibi and others v. Muhammad Ashraf and others (2003 SCMR 1831) has held that:-- "Reference of dispute to arbitration on joint application of parties to the suit-Contention of defendant was that mother of minor plaintiffs had no authority to make such reference without leave of the Court---Validity-Minors were living with mother, who was their natural as well as lawful guardian and had no interest adverse to that of minors-Mother would never contract against interests of her real children---Contention, held, was, neither sound nor tenable at law."
Even this Court in the cases of Murad Khan and another v. Dildar Khan and others (PLD 1966 (W.P.)
Peshawar 173 and Kameen Khan and 15 others v. Ghazi Madan and 9 others (1990 MLD 1865) has held that if no guardian-at-litem is appointed for a minor defendant, it is duty of plaintiffs to have applied for the appointment of his guardian-atlitem but when from the record it appears that counsel representing minor's mother and brothers had been representing the minor and the mother being party to litigation seriously defending the rights acquired by their predecessor in suit property, then such omission has to be regarded as only inconsequential when there is nothing to suggest that interest of minor was not duly represented.
14. Although the parties in their agreement had suggested for appointment of four Arbitrators but it has been clarified by all the arbitrators including the excluded one i.e. Mian Mujeebur Rehman that his name was deleted on orders of the Court and findings of the trial Court find support from the fact that in the very order of reference dated 7-5-1997, the Court itself had appointed three persons as Arbitrators and not four, which would clearly suggest that there was no deletion of the name of fourth Arbitrator through illegal means as objected to by Mian Raza Shah, respondent No.2.
15. In nutshell, all the objections raised by respondents are of technical nature without pin-pointing any substantial injustice having been done to the parties during arbitration proceedings that being the position, the trial Court was perfectly right in making the Award of Arbitrators as rule of the Court and rejecting the objection applications of respondents. The findings of appellate Court are therefore not tenable and liable to be set aside.
16 . Accordingly, this revision petition is accepted, the impugned judgment/decree of the appellate Court is set aside and that of the trial Court is restored with no order as to costs.