1. Haider All Khan, J.--Impugned herein is the judgment and decree dated 03.10.2007 of the learned Senior Civil Judge/Ala Illaqa Qazi , Shangla, whereby suit of the Respondents No. 1 to 4/plaintiffs has been decreed to the extent of Rs. 20,26,991.50 in light of the arbitration award dated 24.7.2007.
2. Precise and relevant facts of the case are that the Respondents No. 1 to 4/plaintiffs including DFM, Alpurai filed a suit against the appellant and rest of the respondents for recovery of Rs. 30,478,310/- with 20 % per annum as compensation. They averred in their plaint that the appellant/contractor was given contract of cutting. conversion and scantling of forest compartments No. 12 to 16, Lenonai East, F.D.C. Lot No. 172/M vide agreement deed dated 13.6.1986. According to clause 16(c) of the agreement, the appellant/contractor was bound to complete the task regarding carriage of timber to roadside depot upto 31.8.1990 but the appellant sought further time through differed letters. Completion of the last portion of the work assigned was due on 30.6.1999 but the appellant/contractor failed to accomplish it within the stipulated period and due to extension of time he had to pay extension fee of Rs. 2,19,992.14/- which amount is still outstanding against him.
2. The respondents/plaintiffs further averred that the appellant/contractor in violation of clause 22(a) of the contract harvested 159 trees of Kail and fir in Compartments No. 12 13 & 15 having a standing volume of 37097 feet for which the appellant/ contractor was ,burdened with fine of Rs. 28,27,367/- after he failed to give a satisfactory reply of the notices issued to him in this regard. The appellant/contractor was asked several times to pay the outstanding amount in respect of extension fee and fine coupled with 20% compensation but he is reluctant, therefore the respondents/plaintiffs filed the suit against him.
3. The suit was contested by the appellant/contractor by submitting his written reply where by he denied the claim of the respondents/defendants by raising various legal and factual objections whereas rest of the defendants filed their cognovits. The trial Court framed necessary issues and invited evidence of the parties. The respondents/plaintiffs produced Fida Hussain Senior Clerk as PW-1. During his cross-examination various objections were raised by learned counsel for the appellant/contractor including the objection to the effect that the controversy should have been resolved through an arbitrator, In the r meanwhi 'e the appellant/contractor also filed an application under c1ause 26 of the Agreement for resolving the case through arbitrator. The respondents/plaintiffs did not raise any objection in this regard, therefore, the trial Court accepted the application and as per prayer of the appellant/contractor MD of Forest Development Corporation was appointed as arbitrator for resolving the dispute. Later on the respondents/plaintiffs filed an application for review of the order as according to Clause 26 of the agreement, M.D, F.D.0 was not competent to act as arbitrator in the case and in that respect General Manager F.D.0 was a competent person. The appellant/contractor raised various objections to the application for review and again insisted on appointment of M.D, F.D.0 as arbitrator. Application of the respondents/plaintiffs for review was dismissed by the learned trial Court and revision petition thereagainst was also dismissed. Thereafter the parties were directed by the learned trial Court to appear before M.D. F.D.0 (the arbitrator) for settlement of the issue After hearing both the parties the arbitrator issued his reward on 22.8.2007 which was communicated to learned counsel for the appellant on 22.9.2007. The learned trial Court after receiving the award, directed both the parties to submit their objections to the award on 29.9.2007 failing which the Court will presume that the parties have no objections to the award. On 29.9.2007 the case was adjourned due to strike of the lawyers, however, the patties were again directed to positively submit their objections on 03.10.2007 if they so desired but on the same date counsel for the appellant submitted application for adjournment and did not comply with the directions of the trial Court circumstances, the learned trial Court made the award as Rule of Court and in the light thereof decreed the suit to the extent of Rs. 20,26,991.49 against the appellant vide judgment and decree dated 03.10.2007. Hence, the instant appeal.
4. 3.Arguments heard the requisitioned record perused.
5. 4.The appellant/contractor has challenged the legality of the impugned judgment mainly on the grounds firstly; that the pleadings of the parties were divergent on the basis whereof legal and factual issues were framed besides controversy of unauthorised cutting of trees and outstanding amount was involved in the case, therefore, it was incumbent upon the trial Court to have recorded pro and contra evidence for decision of the case. Secondly; award of the arbitrator is suffering from serious flaws and the appellant was granted no opportunity for filing objections, besides the award was not made rule of the Court, therefore, the decree awarded on the basis thereof is not legally sustainable. Thirdly; the impugned judgment is not only suffering from material irregularities and illegalities but is also the result of misreading and non-reading of evidence, therefore, the same is liable to be set aside.
6. 5.Perusal of the record would reveal that the appellant/contractor had moved application to the trial Court for sending the matter to arbitrator for its decision and in the light of that application the case was referred to the arbitrator under clause 26 of the agreement (Ex.PW-1/1). It has been mentioned in the said clause that the decision of the arbitrator shall be final and binding upon the parties. Therefore, in case of decision of the controversy through an arbitrator, there remains no question for recording any evidence in the case by the trial Court. Record also shows that the respondents/ plaintiffs have produced and examined PW-1 meaning thereby that evidence of the parties was going to be recorded for disposal of the case but in the meanwhile the case was sent to the arbitrator with the consent of the parties. It means that the ,parties opted for decision of the case through arbitrator instead of recording any pro and contra evidence, therefore there is no force in the contention of the appellant/contractor that evidence of the parties should have been recorded by the trial Court, hence he is bound by the decision of the arbitrator.
7. 6.Learned counsel for the appellant/contractor also contended that the award is suffering from serious flaws therefore, the same is not legally correct. Record shows that the appellant has actively participated in the arbitration proceedings wherein he was given full opportunity of his defence. The award reveals that the arbitrator has given a full account of the matter in dispute by highlighting the root causes of unwarranted damage caused during the continuation of contract due to negligence of the contractor/appellant for which he was rightly held responsible. The respondents/plaintiffs have claimed that the appellant/contractor cut down 159 trees in violation of clause 22(a) of the contract. In reply to the said stance of the respondents plaintiffs, the appellant averred in his written statement that neither he has harvested those trees nor the F.D.0 is empowered to impose fine on him but contrary to his above stance, the appellant/contractor stated before the arbitrator that the trees were harvested by the locals due to royalty disputes among them. The stance of the respondents/plaintiffs with regard to unauthorized cutting of 159 trees gets further support from the observations of the arbitrator to the effect that the appellant/contractor was royalty purchaser in the forests as he had managed to purchase 60% locals share accruing from the timber sale proceeds in advance and thereby he became owner of 60% share of timer being harvested from the given lot. No doubt, the appellant/contractor failed to fulfil his obligations within the stipulated period and the harvesting operations were delayed by almost ten years which resulted into imposition of fine on him by the F.D.C and due to the acts of the appellant/contractor the F.D.0 itself was burdened with fine by the Forest Department. Thus the appellant/contractor was actively involved in the mismanagement of the lot on the large scale.
8. Record also shows that the appellant/contractor was issued show-cause notices regarding the unauthorized harvesting of trees and the loss so caused thereby has been admitted by the appellant/contractor. So far as his contention is concerned that the damages have been caused by the locals, this bald statement by the appellant/contractor carries no weight especially when he himself was responsible for any damage to the lot during persistence of the contract according to clause 22(a) of the agreement besides, he was purchaser of 60% royalty as well, therefore, mala fide on his part for wrongful gain cannot be ruled out. Hence, by no way the appellant/contractor is entitled to be exonerated from his respective liability. The above facts have been highlighted by the arbitrator in his award in explicit terms and he has left no important aspect of the case unattended. Therefore, there is no illegality or irregularity in the award and contention of the learned counsel for the appellant in this respect carries no weight.
9. 7.In addition to the above, the learned arbitrator has properly assessed the damage caused to the lot and the respective fine imposed on the appellant/contractor being responsible for the said damage under the agreement, hence, no injustice has been caused to him neither by the arbitrator nor by the trial Court. So far as his contention regarding non-affording of opportunity of filing the objections to the award is concerned. record shows that the appellant/contractor wilfully did not comply with the directions of the trial Court as he had sufficient time for consultation with his counsel but he did not do so and his counsel made a lame excuse on the date fixed for submission of the objections. This Court is unable to ) understand that what precluded the appellant/contractor and his counsel to file the objections within 11/12 days and above all ' application for adjournment was submitted at the eleventh hour without any reasonable ground.
10. Therefore, it is held that the appellant was not interested in filing objections to the award for which the learned trial Court in no way can be held responsible as the Court did what he legally ought to do in the circumstances.
11. 8.In view of the above discussion, the learned trial Court was bound to decide the case in light of the arbitration award wherein the issue has properly been handled on the basis whereof the learned trial Court decreed the suit after making the same as rule or the Court.
12. There is no illegality or irregularity neither in the award nor in the impugned judgment, therefore, the same are maintained and the instant appeal, being devoid of merits, is hereby dismissed.