MUHAMMAD DAUD KHAN, J. Through this revision petition, the petitioner challenged the judgment/order dated 13.11.2009 passed by learned Additional District Judge-II, Bannu vide which the learned Appellate Court accepted the appeal of respondent and set aside the order/decree dated 04.06.2009 passed by the learned Civil. Judge-III, Bannu and remanded the case to the trial court to proceed according to law.
2. Succinct but necessary facts giving raise the instant revision. Are that respondents Nos.1 to 11/applicants filed an application under Sections 14/17 of The Arbitration Act, 1940 (herein after called as Arbitration Act) for making award dated 01.07.2008 Rule of the Court in the Court of learned Civil Judge-II, Bannu. Along with said application, application for condonation of delay was also filed.
3. Both the applications were hotly contested by the petitioner submitting replications, raising therein factual and legal objections.
4. After hearing arguments of both the learned counsel for the parties, the learned trial court refused to condone the delay, resultantly dismissed the applications of the respondents.
5. Aggrieved by the said judgment/order, the respondents preferred an appeal before the Appellate Court, who after hearing the arguments of learned counsel for the parties, accepted the appeal and remanded the case to decide the same according to law vide its judgment dated 13.11.2009, impugned herein.
6. Mr. Nisar Khan Sokarri, learned counsel for the petitioner contended that the Award which was filed in the trial court on 08.10.2008 should have been filed within ninety days provided in Article 178 of the Limitation Act, 1908 (herein after called The Limitation Act). The filing of said application after lapse of ninety days without any plausible explanation, the learned trial court rightly dismissed the same being time barred. The learned counsel for petitioner further submitted that the learned Appellate Court wrongly excluded the month of August in calculating the time of limitation and by holding the application within time committed gross illegality and misconceived the relevant law.
7. On the other hand Syed Fakhur-ud-Din Shah and Mr. Ali Gohar, learned counsel for the respondents defended the impugned judgment of the Appellate Court.
8. Arguments of learned counsel for the parties heard and with their valuable assistance record perused.
9. I have gone through the judgment and order of learned trial court vide which it has been held that the respondent's application is barred by time considering the period of 90 days for filing application under Article 178 of Limitation Act, while in judgment and order of the Appellate Court dated 13.11.2009, wherein the judgment and order of the trial court was set aside and considering the application within time by excluding the month of August in computing the period of limitation.
10. Without touching the merit of the impugned application under Sections 14/17 of The Arbitration Act, made by the respondent lest it may prejudice the case of either side, I incline myself only to the question of limitation for making Award Rule of the Court.
11. The perusal of the alleged Award apparently shows that the signatures of the parties were not available on the alleged Award, which required further probe, whether the parties were in notice to the Award. A As the filing of application to make Award Rule of Court, the time of application is provided in the Article 178 of the Limitation Act, which is reproduce as under:-- ARTICLE 178 of the Limitation Act, 1908:-- Under the Arbitration Act, 1940 for the filing in court of an AwardNinety Days The date of service of the notice of the making of the Award Bare reading of the Article 178 of the Limitation Act, it clearly reveals that the time for filing an Award would start from the date of service of the notice to the parties.
12. The procedure for Award by the Arbitrator is provided in Section 14 of The Arbitration Act, which is reproduce as under:-- Article-14:- Award to be signed and filed---
(1) When the Arbitrators or umpire have made their Award, they shall sign and shall give a notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the Arbitration and Award.
(2) ........................................
(3) ........................................
The above provision of law provides, inter alia, that Arbitrators shall give notice in writing to the parties of the Arbitration and making and signing of the Award. The Article 178 of the Arbitration Act has to be read in the context of the provision of section 14(1) of the Arbitration Act.
13. The combined study of the Article 178 and Section 14(1) of the Arbitration Act, require sending of a separate notice in writing by the Arbitrators, notwithstanding the fact the parties had knowledge of the arbitration of Award. In the case Messrs Waseem Construction Co. v. Province of Sindh and others 1991 CLC 1081" it has been held: "No doubt, Article 178 of the Limitation Act provides for period of 90 days for filing in court of an award given under the Arbitration Act and the period of limitation, according to the said Article, would commence from the date of service of the notice of the making of the award."
' In other judgment given by the Lahore High court in case "Mushtaq Ahmad alias Mastay Khan and another v. Ahmad Yar and 9 others 2000 CLC 1518", His lordship Mr. Justice Jawwad S. Khawaja (as then he was) has observed as under:- "3. The starting point of limitation taken by the lower Appellate-Court is not based on law. It is clear from the provisions of Article 178 that the period of limitation has to start from "the date of service of the notice of of the making of the award". This provision has to be read with reference to and in the context of the provisions section 14(1) of the Arbitration Act which h provides inter alia that the arbitrator "shall give notice in writing to the parties, of the making and signing" of the award. The words contained in Article 178 of the Limitation Act and section 14 of the Arbitration Act have a technical meaning and can only be con .Trued as requiring a separate notice in writing by the arbitrator notwithstanding the fact that the parties had knowledge of the arbitration award. Date on which the parties had knowledge of the award but is to commence from the date on which a written notice of the making of the award is given to the parties pursuant to section 14(1) of the Arbitration Act. Support for this legal proposition can he derived from the case titled Muhammad Shafi others v. Muhammad Sabir and others PLD 1960 Lah.
591. "
In the instant case the said. Award though allegedly was announced on 01.07.2008 but no signature is available on the Award and no explanation whatsoever, has been mentioned or to the effect that when the parties were informed, mandatory provision of law, as observed above.
The question of Limitation is not only a question of law but also a mixed question of law and facts.
The factum of notice and knowledge of the Award is in controversy between the parties, which requires pro and contra evidence of the parties to resolve it. When both the parties are in serious issues on the legal and factual questions, the learned trial court should have decide the matter after providing the opportunity to the parties to produce their evidence in this regard. The learned trial court without giving such opportunity straightaway dismissed the application, which was not legally correct and amounts to not only miscarriage of justice, but also mis-appreciation of the law.
Though the view taken by the learned Appellate Court considering the appeal of the respondent/applicant, being within time on assumption of extending time of one month by excluding the month of August, when the civil courts usually closed, is misconception of facts as well as law. Though the observation of this Court does not affect the merit of the matter in hand, but it is necessary to be corrected in this revision as guidance for learned appellate Court in future.
As stated above, mistaken view by the learned Appellate Court to condone the delay on the basis of exclusion of one month period i,e, August being summer vacation, is misconceived and utterly failed to understand the application of Section 4 of The Limitation Act, as said section is only applicable and provides the condonation of the days when period of limitation to file the suit/appeal or application expires on a day when the court is closed, the suit, or appeal or application may be instituted, preferred or made on the day that the courts reopens. According to this section the only courts holiday which are to be allowed in addition to the prescribed period of limitation for filing suit, appeal, or application are those which falls on the day of the expiry of that period or immediately following it. The plaintiff or the appellant cannot claim the exclusion of such holidays.
Moreover, the learned Appellate Court is also slipped from the section 9 of the Limitation Act which clearly envisaged as once a H time has begun to run, no subsequent disability or inability to sue stops it.
In the above observation, I find that the remand order by the Appellate Court is legally correct to the extent that it provides to both the parties opportunity to prove their case in all respect over controversy between them but the findings and view taken for condonation of delay by excluding month of August is not correct according to sections 4 and 9 of the Limitation Act.
For what has been discussed above, the order of the learned trial court being illegal and result of mis-appreciation of law cannot be sustained, while the judgment and order of the learned Appellate Court is maintained to the extent of remand.
18. As observed above, in addition to direction given by the Appellate Court, it is hereby further directed that the learned trial court after framing the issues on divergent pleadings (application and replication) of the parties provide opportunity to adduce pro and contra evidence as they wish and decide the case according to law.
19. Resultantly, this revision petition is dismissed, as no order as to cost.