' ATIR MAHMOOD, J. --- Through this civil revision, the petitioner Naimat Ali, who died during the pendency of this petition and his legal heirs were brought on record through C.M. No. 2728/2011 on 11.06.2011 and amended memo. Of parties was also filed) has challenged the judgment dated 13.03.2010 passed by the learned Additional District Judge, Khanpur whereby the appeal filed by the respondents/plaintiffs (hereinafter referred as respondents) was accepted which was filed against the order dated 06.07.2009 passed by the learned Civil Judge, Khanpur whereby the award was set aside under the objection of the petitioner/defendant (hereinafter referred as petitioner).
2. The brief facts of the case are that the respondents filed a suit for specific performance of agreement to sell the property fully described in the head-note of the plaint. It was alleged in the plaint that the petitioner/defendant agreed to sell his land for a sale price of Rs. 17,05,000/- vide agreement dated 12.10.1994 and on 30.08.1994 Rs. 5,00,000/- were given to the petitioner in advance whereas the remaining amount of Rs. 2,05,000/-was to be paid after mortgage of the property with Agriculture Bank was released and redeemed but the petitioner failed to complete the sale intentionally and has also refused to transfer the suit property in favour of the plaintiffs.
Before filing the written statement, the parties filed an application to the learned Trial Court to refer the dispute to sole Arbitrator namely Sheikh Fayyaz-ud-Din. The learned Trial Court recorded the statements of the parties, their counsels and referred the matter to the sole Arbitrator. The Arbitrator was given extensions of time and finally on 22.3.1997 Arbitrator filed an award dated 21.3.1997 in the Trial Court in which he mentioned that parties had consented to a new arrangement that the petitioner would pay Rs. 12 lacs to the plaintiffs by 5.4.1997 whereupon suit should stand withdrawn and on failure to make payment by that date suit of the plaintiffs shall stand decreed.
The award was filed without notice to the petitioner and on getting knowledge, the petitioner filed objections to the award. The respondents did not file any objections. On the basis of objections and written reply filed by the respondents following issues were framed by the learned Trial Court:- "Whether the award dated 15.09.1996 is liable to be set aside. OPP
(ii) If issue No. 1 is not proved, whether the award should be made rule of the Court. OPR.
(iii) Relief.
' The parties adduced their respective evidence. Thereafter, the learned Trial Court after recording the evidence of the parties vide order dated 06.07.2007 found issue No. 1 as positive and set aside the award on the grounds of misconduct etc. On issue No. 2 the Trial Court refused to make the award as rule of the Court. Resultantly, the Trial Court decided to proceed with the case and passed orders to parties to either nominate new arbitrator with mutual consent or to let the case be proceeded in accordance with law and procedure. The respondents feel dissatisfied with the said order preferred an appeal against the order dated 06.07.2009 before the learned Additional District Judge. The learned Appellate Court vide order dated 13.3.2010 accepted the appeal, order of the Trial Court was set aside and award was made rule of the court. Hence this civil revision.
3. Learned counsel for the petitioner has contended that the judgment and decree of the learned Appellate Court is illegal, unjust and arbitrary; that the impugned judgment and decree is result of mis-reading and non-reading of evidence; that the learned Appellate Court decided the appeal without considering the well reasoned verdict of the Trial Court and without giving reasons to differ with it; that the arbitrator (as per his own statement) never heard the parties, never recorded their statements, never looked into the alleged agreement to sell and receipt and did not bother to use a piece of paper or pen and did not give any opinion or decision on merits of claim of either party which was his duty; that the alleged compromise was never recorded by the arbitrator nor he got signatures of the parties on such a consenting arrangement and copy of the award was never given to the parties. Lastly he prayed for acceptance of this civil revision. He has relied upon the cases reported as Kh. Muhammad Yousaf v. Khawaja Abdur Rashid and others (PLD 1967 Karachi 568), Mrs. Keays Byrne v. M. Obaidullah Khan (PLD 1959 (W.P.) Lahore 146), Messrs Ibrahim Fibers Limited through Managing Director v. Hameed Masood (Pvt.) Limited through Director and 2 others (2006 YLR 1523) and Messrs Tribal Friends Co. v. Province of Balochistan (2002 SCMR 1903).
4. On the other hand, learned counsel for th respondents has submitted that the impugned judgment an decree passed by the learned appellate is well reasoned an the learned Appellate Court has committed no illegality whil passing the same. He has relied upon the cases reported a Chaudhry Qaiser Mehmood v. Province of Punjab throug Secretary, Government Communication and Works ani another (2012 SCMR 1606), Saeeda Bano and others Mian Muhammad Amin (1995 MLD 187), Ashfaq Ali Qures v. Municipal Corporation, Multan and another (1984 SCM 597), Maj. (Retd.) Humayun Akhtar v. Pakistan Defence Officers Housing Authority (PLD 2002 Karachi 427), Mia Asmat Shah and another v. Mian Faiq Shah and others (PL 2012 Peshawar 181), Haji Ghulam Mohy- ud-Din Federation of Pakistan (PLD 1967 Lahore 204) and Messrs Aer Rianta International Pakistan (Pvt.) Ltd. v. Civil Aviation Authority (PLD 2006 Karachi 216).
5. Arguments heard. Record perused.
6. There are two points which need determinatiol by this Court, firstly as to whether the objection petition filed by the petitioner for setting-aside the award was within time and secondly as to whether Arbitrator committed any misconduct by making the award and the learned Appellate Court wrongly made the said award as the rule of the Court.
7. In order to decide the first point, perusal of the proceedings of the Trial Court is essential. The order dated 14.05.1997 passed by the learned Trial Court reads as under:--- {{URDU TEXT}} ' Subsequent to this order, the petitioner filed further objections on 12.06.1997. Bare perusal of the above-referred order makes it clear that the objections were filed within time and objection can be raised within the time stipulated under the law as well as fixed by the learned Trial Court. Since there was a consent of the respondents for filing the objections, therefore, this objection cannot be raised at this point of time.
8. As far as the other point which is pivotal in nature as to whether the Arbitrator committed any misconduct while making the award, rendering the same as a nullity in the eye of law, the pleadings of the parties are very relevant. While filing the objection petition on 09.05.1997 before the Trial Court, the petitioner alleged that he was not summoned by the Arbitrator to settle the dispute but despite that fact he used to contact the Arbitrator. He also asserted that on the day when the award was submitted before the Court no notice in this regard was served upon the petitioner and that the award was not written by the Arbitrator himself. He nowhere asserted that he never consented before the Arbitrator to return the amount of Rs. 12 lacs to the respondents. Subsequent to the order dated 14.05.1997 the petitioner filed another petition raising additional objections on 12.06.1997 but even in the said objections there was no mention of the fact that he never consented before the Arbitrator to pay the above-referred amount of Rs. 12 lacs to the respondents. While appearing in the witness box, the petitioner altogether changed his stance while appearing as DW-1 and deposed that there was a dispute with the plaintiff with regard to a tractor and the case was registered against the plaintiff by the order of the Court and at the police station it was settled that the matter would be resolved by appointment of Arbitrator. His deposition suggests that Sheikh Fayyaz was one of the Arbitrator who never summoned him nor he was called on the day when the award was announced. It also suggests that said Sheikh Fayyaz was never appointed as an Arbitrator by the Trial Court which stance is entirely different from the pleadings/written objections filed by the petitioner. It is well-settled principle of jurisprudence that a person cannot take a different stand then from his pleadings and any statement recorded during the course of arguments which is contradictory to the pleadings cannot be taken into consideration by the court. The petitioner did not utter even a single word during his examination- in-chief that he never gave any consent to make the payment of Rs. 12 lacs. During cross- examination, he stated that he did not make a statement before the Court regarding appointment of Arbitrator. He showed his ignorance as to whether his counsel made any statement for appointment of the Arbitrator. As above discussed, there is not even a single sentence in the objection petition filed by the petitioner in this regard. This stance of the petitioner is also reflective of the fact that the petitioner did not come to the Court with clean hands and tried to deceive the court. A person who does not come to the Court with clean hands is not entitled for any relief.
9. Furthermore, the evidence led by the petitioner could not establish that the Arbitrator committed any misconduct. It is a settled proposition of law that the Arbitrator is not required to record the statement of the parties or to record any evidence. He can adopt his own procedure. In the present case, the petitioner during the course of cross-examination, admitted that he had confidence upon the Arbitrator at the time of his appointment as Arbitrator but stated that he did not give the right decision. The relevant portion of the cross-examination is reproduced as under:--- ' The statement of DW-2, Rasheed Ahmad, produced by the petitioner could not better the position of the present petitioner as he also deposed with reference to a criminal case registered against the respondents for the theft of a tractor and he also referred to an arbitration in that regard.
10. On the other hand, the respondents produced RW-1 Sheikh Fayyaz-ud-Din, Arbitrator, in support of his contentions, who deposed that he was appointed as Arbitrator and both the parties appeared before him 2/3 times; that Shams and Nisar, the plaintiffs asserted that they want to get land as they have paid Rs. 17 lacs whereas the other party stated that he would not give the land and that he was ready to return Rs. 12 lacs. He further deposed that in order to settle the dispute he decided that Nisar etc. Will take back Rs. 12 lacs and the matter would be closed. The said amount of Rs. 12 lacs was conditional and in case of its nonpayment the suit would be decreed. He deposed that he obtained the consent of both the parties in this regard and then he made an award. He produced the award as Exh. R2. During cross-examination, he stated that he was appointed as an Arbitrator by the Court on 15.09.1996 when the statements of the parties and their counsel were record; that his statement was recorded on 02.10.1996 that he was ready to get settle the dispute of the parties. He stated that he did not remember as to how many times the parties appeared before him. He admitted that he did not conduct any proceedings in writing and the entire proceedings were through verbal contentions of the parties. He stated that since both the parties agreed upon the terms, therefore, there was no need to hear any witness or to record any statement. He stated that he did not write any statement of Nehmat All that he was ready to pay Rs. 12 lacs. Not even a single suggestion was put to him that the petitioner never consented before him to return the amount of Rs. 12 lacs which is sufficient to establish that the petitioners consented before the Arbitrator to return the amount of Rs. 12,00,000/-to the respondents.
11. In a case reported as Province of Punjab through Secretary, C&W Department, P.W.D. Secretariat, Lahore and others v. Messrs Sufi Construction Company (2005 SCMR 1724) the august Supreme Court has held as under:--- "We have heard the learned counsel for the petitioners at length and have also gone through the available record. We find that the petitioners did not move any application for appearance of the Arbitrators in the Court in support of the allegations of misconduct against them. Even the particulars and other necessary details of any misconduct were not given by the petitioners in their reply or the objections. Against the Arbitrator (underline is mine) The allegations of the petitioners were vague and nebulous". (Underline is mine)
12. In view of the above discussion, I am not in an agreement with the contention raised by the learned counsel for the petitioner that the Arbitrator committed any misconduct. As far as the objection of the learned counsel for the petitioner regarding writing of the award by someone else other than the Arbitrator is concerned, it has categorically been asserted by RW-1 that he got it written by his Manager and then he signed the same. In this view of the matter, there is no illegality in making the award.
13. I am of the considered opinion that mere dis-agreement with the decision of the Arbitrator is not sufficient to set aside the award made by the Arbitrator as the award can only be set aside in view of the conditions laid down in Section 30 of the Arbitration Act which reads as under:-
30. 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 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.
(a) that an award has been improperly procured or is otherwise invalid. (Emphasis provided)
' The petitioner could not establish any of the above-mentioned grounds, therefore, the judgment of the learned Appellate Court is in consonance with law and did not require any interference by this court. Resultantly, this civil revision being devoid of any force is hereby dismissed.
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