IBAD-UR-REHMAN LODHI, J.---The petitioners have called in question the vires of order dated 21.11.2011 passed by the learned Additional District Judge, Chakwal, whereby the application of the respondents herein was allowed and the statement made by the referee was ordered to be treated as an award of an arbitrator by permitting the parties to file their objections on such award.
2. The background relevant for the purposes of disposal of this civil revision petition is that in the first instance, the parties to litigation on 03.12.2010 jointly made statement that in order to resolve their dispute, Ch. Dur Muhammad, Advocate be appointed as sole arbitrator. In such joint statement, it was agreed upon in between the parties that the award of the arbitrator would not be objected to by either of the parties. By the time, the arbitrator yet not started his proceedings, there was a turn, when on 11.01.2011, the learned trial court recorded joint statement of the parties to the effect that same person Ch. Dur Muhammad, Advocate be appointed as a referee, whose statement would be valid in its letter and spirit and will be accepted in whatever manner, it is to be concluded as to which school of thought either Deobandi or Brailvi, the mosque under litigation would belong and no objection whatsoever would be raised by either side to the statement of the referee.
The appointed referee before furnishing his statement in shape of report conducted somewhat factual inquiry and probed into the administrative and financial affairs of the mosque and in such process, recorded some statements of relevant persons and then concluded his proceedings, which resulted in filing of his report/statement before the learned trial court on 14.02.2011. The respondents herein prayed for giving them a chance to file objections over such statement of the referee with the contention that since the referee proceeded to inquire into the matter by associating other persons in such process, therefore, he lost his status of a referee and in fact his statement/report is an award furnished by an arbitrator and parties to the litigation have a right to file objections as against arbitration award and by means of impugned order, their such request has been acceded to in the manner as referred to hereinabove.
3. Learned counsel for the petitioners has submitted that irrespective of the position that the appointed referee associated other persons in the probe carried out by him in reaching a conclusion to be rendered as his statement before the Court, his status could have been treated as having been changed from that of referee to an arbitrator.
Contrary thereto, learned counsel for the respondents has supported the impugned order with the contention that in view of Article 33 of The Qanun-e-Shahadat Order, 1984, it is only the statement of a referee, which would be relevant and the moment, the appointed referee involved in some detailed inquiry on the issue referred to him, he ceases to be termed as a referee and the parties to litigation would have every right to raise objections upon his award furnished in his capacity of an arbitrator. In support of his contention, learned counsel for the respondents has placed reliance on cases titled "Ghulam Farid Khan v. Muhammad Hanif Khan and others" (1990 SCM R 763), "Muhammad Saeed v. Mst. Shamim Akhtar and others" (2010 YLR 2987) and "Mst. Zanib Bibi through L.Rs, and others v. Province of Punjab through District Collector Lodhran and others" (2011 CLC 1933).
4. Article 33 of The Qanun-e-Shahadat Order, 1984 provides that statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.
Such Statutory provision itself does not provide a bar upon such person to whom the matter has been referred before making a statement before the Court to collect further information in order to reach a just conclusion, which finally would be rendered before the Court as a statement.
Such question was before the Hon'ble Supreme Court of Pakistan in case titled "Mst. Lalan v. Noor Muhammad and 12 others" (1994 SCM R 1771), wherein the findings arrived at by the courts below including High Court were maintained and the report of the referee was refused to be treated as an award by an arbitrator on the objection of one side of the litigation with the plea that since referee before making a statement before the Court had taken evidence for settling dispute between the parties which was necessary in resolving the dispute in question. When the referee was appointed by the parties themselves for resolving dispute between them and such referee entered into the process of taking evidence for settling dispute between the parties, it was held as a necessary step even for such referee in order to resolve the dispute in question.
At this stage, it is relevant to mention that the points settled in Mst. Lalan's case has been attempted to be differentiated by learned counsel for the respondents by maintaining that the view taken in Mst. Lalan's case was of three Hon'ble Judges of Supreme Court of Pakistan, whereas the earlier view was taken by five Hon'ble Judges in case titled "Ghulam Farid Khan v. Muhammad Hanif Khan and others" (1990 SCM R 763) and according to learned counsel for the respondents, the view taken by a Larger Bench consisting of five Hon'ble Judges must prevail.
The perusal of Ghulam Farid Khan's case reveals that in fact in reported matter, the person appointed to resolve the issue in between the parties in fact rendered a "faisla" and the same was placed before the Court, which was not treated as a statement furnishing information within the meaning of Article 33 of The Qariun-eShahadat Order, 1984, but an award within the meaning of Section 14 of The Arbitration Act, 1940 and thus, it was held that even if originally referee was appointed, but he quite clearly understood his role as that of arbitrator and proceeded accordingly even though while recording the statements made by the parties, he still described himself as a referee.
In the case in hand, the position is altogether different. The referce, who was appointed with mutual consent of both the parties, has never furnished to the Court his faisla', but a statement in shape of report was placed before the Court. Therefore, the findings arrived at in Mst. Lalan's case cannot be discarded merely on the plea that said view was taken by three Hon'ble Judges of Supreme Court of Pakistan.
This Court in case titled "Barkat Masih v. Barkat Bibi and others" 1999 YLR 1215 has proceeded a step further, when the report of a local commissioner, whose report was undertaken not to be challenged by the parties, was treated as a report of a referee by holding that as the parties had voluntarily agreed to be bound by the report of local commissioner, such commission was, in reality, a referee and not a local commissioner, as contemplated by Order XXVI of the Code of Civil Procedure.
To some extent, the same view has been taken by this Court in case of "Mushtaq-Ur-Rehman and 4 others v. Muhammad Akbar and 5 others" (PLD 1974 SC 139), wherein it has been settled that when parties undertook to be bound by the verdict of even local commission appointed at their request, then there will be no valid exception but to dispose off suit on the basis of report of such Local Commissioner.
Similarly, this Court in case titled "Haji Anwar Ali and others v. Bashir Ahmad" (2002 CLC 421). While interpreting Article 33 of The Qanun-eShahadat Order, 1984 has held that referee, who was appointed by the parties themselves, was competent to acquire further information. Although a referee had to decide according to his own personal knowledge yet his act of acquiring further information does not vitiate his statement. It was further held that in gathering of information by a referee through other sources is not violative to Article 33 of Qanun-e-Shahadat Order, 1984 and although a referee must have previous knowledge of dispute referred to him, yet there is nothing wrong if referee in order to supplement or augment his knowledge, chooses to affirm or re-affirm the same through other sources and as such, inquiry conducted by such referee, which is supplement to and in addition to his personal knowledge, is not violative to the provisions of Article 33 of The Qanun-eShahadat Order, 1984.
So far as the reliance on the cases of "Muhammad Saeed v. Mst. Shamim Akhtar and others" (2010 YLR 2987) and "Mst. Zanib Bibi through L.Rs, and others v. Province of Punjab through District Collector Lodhran and others" (2011 CLC 1933) placed by learned counsel for the respondents, the same are not directly applicable to the question involved in the present petition, as in Muhammad Saeed's case, this Court was of the view that the trial court, while appointing a person to resolve the dispute of the parties had used two distinct terms of referee and local commission at the same time and thus, such order was found by this Court as having been suffered from some irregularities, whereas in case of Mst. Zanib Bibi, the statement of referee was discarded for the simple reason that such referee had no personal knowledge about the matter, rather he got his statement recorded on the basis of hearsay evidence.
In the case in hand, the referee has not only made the basis of his statement the information collected from other sources, but he has also expressed his personal knowledge about the dispute referred to him for its resolution.
5. In view of what has been discussed above, it is, thus, clear that the referee appointed with the consent of both the parties, has committed no wrong, if he associated some other persons in the process of search of truth and statement made by such referee in shape of his report would not be termed as an award of arbitration and such statement was not open to objection by either side, as originally at the time of appointment of such referee, the parties consented not only such appointment, but also bound themselves not to raise any objection on final report/ statement of such appointed referee. The report/statement placed/ made by the referee is not open to any objection.
6. The learned Additional District Judge, while passing the impugned order has, thus, committed an illegality by treating the statement/report of referee as award of the arbitrator permitting the parties to raise their objections on such award. The impugned order is bad in law and is not sustainable, which is set aside.
7. Resultantly, by allowing this civil revision petition, the application moved by the respondents is dismissed.