' AAMER FAROOQ, J.--- Through the instant appeal under section 39 of the Arbitration Act, 1940 (hereinafter called the Act) the appellant has assailed order dated 03.01.2015 whereby the objections filed by the appellant to the Award, passed by respondent No,2, were dismissed.
2. The facts, in brief, are that the appellant awarded contract to Highway Rehabilitation Project (Hyderabad-Hala Section) to respondent No,1 on 07.07.2004. In this behalf formal contract was concluded between the parties on 13.08.2004. Dispute arose between the parties regarding construction and inclusion of work relating to 'Matiari Bypass'. Respondent No,1 alleged that since this was not part of original contract, therefore, it should be compensated for the same. In this behalf to resolve the dispute, as provided under the contract, the matter was forwarded to the Engineer on 02.09.2005. The Engineer provided clarification that award of Matiari Bypass was deleted from the contract. It was also provided under clause 53.1 of the Conditions of Contract.
Respondent No,1 was required to issue notice of intention to claim additional demands within 28 days of the event giving rise to the claim. Respondent No,1 on 06.06.2006 invoked the Arbitration Clause. The appellant on 29.06.2006 advised respondent No,1 to act in accordance with contract.
The claim submitted by respondent No,1 to the Engineer was rejected vide letter dated 24.11.2006.
On 29.03.2007 the dispute was referred to Dispute Resolution Expert and was disallowed on 24.05.2007. On 26.05.2007 respondent No,1 expressed its intention to refer the matter to the arbitration and with the consent of parties respondent No,2 was appointed as Sole Arbitrator. The learned Arbitrator on 28.04.2010 passed the award for the sum of Rs,55959319/- in favour of respondent No,
1. The award was filed in the Civil Court, Islamabad for making it rule of the Court wherein the appellant filed an application, under section 30 read with section 33 of the Act, objecting the award. The referred application was dismissed by the learned Trial Court vide impugned order dated 03.01.2015.
3. The learned counsel for the appellant, inter alia, submitted that the award was not properly procured inasmuch as issue of limitation was raised before the learned Arbitrator on the ground that decision of Dispute Resolution Expert dated 24.05.2007 was appealable but no appeal against the same was filed, therefore, the matter has become final. It was further submitted that Civil Judge wrongly observed that respondent No,2 had adverted to the issue of maintainability of the arbitration proceedings whereas the Arbitrator did not take into consideration the referred objection, therefore, there is misconduct on his part. It was reemphasized that questions of limitation and maintainability were not addressed by the learned Arbitrator in the award. The learned counsel for the appellant submitted that the award is in violation of section 26-A of the Act, and submitted that notice of award and its copy was provided to respondent No,1 only, therefore, there was misconduct on the part of the Arbitrator in that regard as well. In support of his contention learned counsel placed reliance on cases titled "A. Qutubuddin Khan v. CHEC Millwala Dredging Co. (Pvt.) Limited" (2014 SCMR 1268), "Premier Insurance Company v. Attock Textile Mills Limited" (PLD 2006 Lahore 534) and "Abdullah Contractors v. WAPDA and Power Development Authority" (2006 YLR 589). The learned counsel also contended that the learned Arbitrator has failed to discuss or give findings on any of the ten (10) issues; the findings are against provisions of contract and are not based on evidence.
4. The learned counsel for respondent No,1, inter alia, submitted that Arbitrator has expressly dealt with the issue of limitation. In this behalf it was submitted that the issue of limitation was never raised by the appellant in its reply to the claim and was only raised for the first time in the supplementary affidavit of one of its witnesses. The learned counsel while substantiating its arguments submitted that it is an established principle that no one can go beyond pleadings. It was further contended that the learned Arbitrator has adverted to all the questions raised before it including the issue of maintainability of the petition and the findings are based on evidence led by the parties. It was also submitted that there is no misconduct on part of the Arbitrator and all the issues have been dealt in detail. In this behalf reliance was placed on cases reported as PLD 2003 SC 301, 2002 CLC 353; AIR 1989 SC 1263 and PLD 2011 SC 506. The learned counsel also emphasized that the Court while deciding objections cannot act as Court of Appeal or can appraise evidence or examine the reasonableness of the findings by the learned Arbitrator. In this behalf reliance was placed on cases reported as PLD 1998 Lahore 132, PLD 1996 SC 108 and PLD 2006 SC 169. The learned counsel further contended that in order to set aside the award the error should be of law and not fact and that too should be floating on the face of award. In this behalf learned counsel placed reliance on cases reported as 2001 CLC 289 and PLD 1996 SC 108. It was further suggested that giving of notice to award to any one party does not constitute misconduct on part of the Arbitrator.
In this behalf reliance was placed on case reported as PLD 2002 Karachi 427. It was also emphasized that in arbitration proceedings the technicalities should not be adhered to with strictness. The learned counsel in the last argued that Arbitrator is a forum chosen by the parties, therefore, they should adhere to the same and the decision rendered should not be questioned on technicalities.
5. The Civil Court hearing objections to the award under sections 30 and 33 of the Act, is not a Court of appeal and also does not reappraise the entire case but has to confine itself to the grounds mentioned in sections 30 and 33 of the referred Act. The main thrust of arguments by the learned counsel for the appellant in assailing the award A was that question of limitation was not decided by the Arbitrator, therefore, there is misconduct on his part and the award is liable to be set aside on that score alone. The learned counsel for appellant placed reliance on case "Kashmir Corporation Limited v. Pakistan International Airlines" (PLD 1995 Karachi 301).
6. The contention of learned counsel for the appellant that no finding was given on the question of limitation by the learned Arbitrator is not factually correct as in the award it has been stated that in para-20 of the respondent's reply to statement of claim it has clearly been admitted that both the parties and they agreed to resolve the dispute through arbitration and by mutual consent appointed him as a Sole Arbitrator, therefore, all previous discussions/meetings have come to an end. It was also observed by the learned Arbitrator that the question of limitation was not raised in reply by the appellant and was only raised for the first time in the supplementary affidavit in evidence whereby Mr. Tahir Jameel has raised the issue that the claim of respondent No,1 is barred by limitation. The plain reading of the reply filed by the appellant before the Arbitrator shows that no objection regarding claim being barred by time was raised before it rather matter was contested on merits. In so far as issue of maintainability of arbitration is concerned that also was not raised, contested or taken in the reply to claim. Even otherwise the case of appellant is that proceedings before Arbitrator were not maintainable as no appeal was filed against the decision of Dispute Resolution Committee. The referred argument has no substance as both the parties submitted to the jurisdiction/authority of Arbitrator and contested the matter on merits. The technicalities cannot defeat chosen forum of parties. The object of the Act is that when parties to a contract decide to get their dispute settled by an Arbitrator, the decision of the Arbitrator should be considered to be final. In this behalf in case titled "Union of India v. M/s Sohan Singh & Co." (AIR 1989 J&K 14) it was held that where a party participates in arbitration proceedings without protest cannot question the jurisdiction of the Arbitrator when award has been passed against him.
Similarly, in case titled "Andison Co-operative Industries Ltd. v. Ch. Nazir Ahmad Cheema and two others" (1970 SCMR 531) it was observed by the Apex Court that the question of limitation, even if it was not properly appreciated by the Court or the authority which passes an order does not render the decree or an award, a nullity. It was further observed that if the claim was barred by time, the said objection should have been taken before the Arbitrator in clear terms. Moreover, even if the claim is barred by time any award based on it cannot be considered to be a nullity in the eye of law. In "Gujrat W.S.& S.B. Vs. Unique Erectors (Guirat) (P) Ltd." (AIR 1989 SC 973) it was held that an Arbitrator is not obliged to give reasons for his decision and even if giving of reasons is held to be obligatory it is not obligatory for the Arbitrator to give detailed judgment. Similarly, in "Executive Engineer, Puri R. & B. Divn. v. G.C. Kanugo" (AIR 1990 Orissa 211) it was held that reasons given by the Arbitrator not perverse and not suffering from error apparent on the face of record, the Court should not interfere. In "Delhi Development Authority, New Delhi v. M/s Alkaram, New Delhi" (AIR 1982 Delhi 365) it was held that the Arbitrator is a final Judge of fact and the Court is bound by the Arbitrator's findings of fact and cannot review these unless these are unsupported by evidence and it appears from the award that there is no evidence to support the award.
7. Under sections 30 and 33 of the Act, one of the grounds for setting aide award is whether the Arbitrator has misconducted himself. In this behalf in "Pakistan Steel Mills Corporation, Karachi v.
M/s Mustafa Sons (Pvt.) Limited, Karachi" (PLD 2003 SC 301) it was held that the word 'misconduct' with reference to arbitration proceedings is interpreted in the sense in which it is not akin to fraud but it means neglect of duties and responsibility of the Arbitrator. In "Food Corporation of India v.
Joginderpal Mohinderpal" (AIR 1989 SC 1263) it was held that while it is difficult to give an exhaustive definition as to what may amount to a misconduct on part of the Arbitrator, it is not misconduct on part of the Arbitrator to come to an erroneous decision, whether his error is one of fact or law, and whether or not his findings of fact are supported by evidence. Similar view was taken in "Superintending Engineer, Somasila Project v. R. Ramana Reddy" (AIR 1990 Andhra Pradesh 283). In "Federation of Pakistan through Secretary, M/O Food and others v. M/s Joint Venture Kocks K.G./Rist " (PLD 2011 SC 506) the Hon'ble Supreme Court held as follows: "While 'considering the objections under sections 30 and 33 of the Arbitration Act, 1940 the court is not supposed to sit as a court of appeal and fish for the latent errors in the arbitration proceedings or the award. The arbitration is a forum of the parties' own choice and is competent to resolve the issues of law and the fact between them, which opinion/decision should not be lightly interfered by the court while deciding the objection thereto, until a clear and definite case within the purview of the section noted above is made out, inasmuch as the error of law or fact in relation to the proceedings or the award is floating on the surface, which cannot be ignored and if left outstanding shall cause grave injustice or violate any express provision of law or the law laid down by the superior courts, or that the arbitrator has misconducted thereof. Obviously if there is a blatant and grave error of fact such as misreading and non-reading or clear violation of law, the interference may be justified by the courts. But for the appraisal and appreciation of the evidence; the courts should not indulge into rowing probe to dig out an error and interfere in the award on the reasoning that a different conclusion of fact could possibly be drawn."
8. Similar view was taken by the Apex Court in its earlier decision. The upshot of the above law and the legal proposition is that the Court while hearing objections does not act as a Court of appeal and cannot undertake to reappraisal of evidence recorded by the Arbitrator. The error or infirmity in the award should float on the face of it. In the instant case all legal and factual issues were duly addressed by the learned Arbitrator while passing the award and there is no error floating on the surface which shows that the award suffers from any apparent legal infirmity or that the proceedings were conducted by the Arbitrator in a manner which amount to misconduct. The proposition laid down in the case law relied upon by the appellant are valid, however, are not applicable to the facts of the instant case. In so far as objection pertaining to giving notice of award to respondent No,1 only the same does not nullify or vitiate the award. Reliance in this regard is placed on PLD 2002 Karachi 427.
9. In view of above, the instant appeal is without merit, therefore, is dismissed.