1. NAIMUDDIN, J.-This is an appeal under section 3 of the Law Reforms Ordinance, 1972 (XII of 1972) as amended by section 15 of Ordinance called the Civil Procedure (Amendment) Ordinance, 1980. By this appeal Mst. Mumtaz Begum and S. Ali Hussain the appellant who are respectively defendants Nos. 1 and 2 in Suit No. 124/80 have questioned the order dated 8th April, 1980, passed by a learned Single Judge of this Court on original side dismissing the appellant's applications under Order VII, rule 11, C. P. C. And confirming the ad interim order of injunction.
2. The facts giving rise to this appeal so far relevant to the decision of this appeal are that Hafiz Abdul Muqtadir and Muhammad Yousuf respondents Nos. 1 and 2 brought a suit -being Suit No. 124/80 against appellants Nos. 1 and 2 and others for the following material reliefs.
(a) For declaration that; the judgment and decree dated 7-7-1979 passed in Suit No. 2566/79 are illegal without jurisdiction null and void and not binding on the plaintiffs as the same have been obtained by fraud, misrepresentation and forgery.
(b) For permanent injunction, restraining tile defendants, their servants and agents or any person claiming through or under them, from interfering or disturbing with the peaceful . Possession of the plaintiffs of Shops Nos. 1 and 2, House/Plot No. R-979/14, Federal 'J3' Area, Karachi.
(c) Restoration of Articles/Goods of the plaintiffs in good and marketable condition, which were taken from their shops on 3-94979 or its value Rs. 85,959.
3. The appellants filed an application under Order VII, rule 11, C. P: C. For rejection of the plaint. The learned Sind Judge by the order Impugned in this appeal dismissed the application and also confirmed the ad Interim injunction passed earlier on another application holding that the suit was not wholly barred by the statement made in the plaint. It was contended before him that the arbitration agreement and the award which have been challenged in the suit could be challenged under the provisions of sections 30 and 33 of the Arbitration Act, 1940 only and the suit to challenge the same was barred under section 32 of the Act. The learned Single judge however, reasoned that from the last paragraph of the plaint quoted him in the order it was evident that one of the reliefs prayed for namely, restoration of articles/goods of the plaintiffs in marketable conditions which were taken from the shops of respondents Nos. 1 and .2 on 2-3-1975 having alleged value of Rs.
4. 85,959 was an independent relief which did not involve the determination or existence of any arbitration agreement or the award or their effect and therefore, prima facie the same was ,not barred by section 32 of the Arbitration Act, 1940.
5. Learned counsel for the appellants has raised before us the same arguments and has cited the case of Messrs Badri Narain v. Pale. Jute Balers (PLD 1970 SC 43), which was also cited before the learned Single Judge. We may here state that respondents Nos. 1 and 2 hereto have in their suit not only challenged the agreement containing arbitration clause or the award but have also sought declaration that the judgment and decree dated 7-7-1979, passed in Suit No. 2566/77 are illegal, without jurisdiction null and void and not binding on them as the same have been obtained by fraud, misrepresenta--tion and forgery. This relief too in our opinion is prima facie not hit by the provisions of section 32 of the Arbitration Act for one of the allegations in the plaint is that appellants Nos. 1 and 2 along with Israrun Nabi respon--dent No. 3 engaged an Advocate on behalf of respondents Nos. 1 and 2 and Respondent No. 3 signed the Vakalatnamas as their attorney falsely claim--ing and had filed a consent application dated 3-7-1979 for making the award rule of the Court. They have further alleged that they had no knowledge of the filing of the award and had not received the notice from the Court and had not appointed any Advocate in that matter and had not signed any Vakalatnama. From these averments made in the plaint it is clear that respondents Nos. 1 and -2 have not only challenged the arbitration agreement and the award filed in Court but also the judgment and decree passed by the IV Civil Judge, Karachi in Suit No. 2566/1979.
6. It is settled that a plaint could not be rejected in part only and therefore on the averments made in the plaint the same could not have been rejected on the basis of the provisions of section 32 of the Arbitration Act. Further, there is an ample authority for the proposition that fraud vitiates any proceedings and if proved, will render the decree passed in such proceedings null and void. A decree passed as a result of proceeding under the Arbitration Act is also not immune from being challenged in civil Court if challenged on the ground of fraud. If any authority I needed reference may be had to Umer Hayat TIwana v. Malkani Sahibzad Tiwana (PLD 1978 Lah. 1253). We here quote the relevant observations of Muhammad Zullah, J. (now a Judge of the Supreme Court) which appear in para. 6 of the Judgment: "I do not accept the general proposition that even if a decree is challenged on ground of fraud, the suit would be barred simply because the decree has been passed as a result of proceeding under the Arbitration Act. Fraud vitiates all proceedings and if proved, the decree would be rendered to nullity and thus, void. A civil suit in the Court of general jurisdiction would be competent. The mere fact that the decree purports to follow the award would not attract the provisions of section 32 so as to bar the suit with regard to the decree as well."
7. We may also refer here to a Supreme Court decision in Abdul Karim v. Mirza Bashir Ahmed ( PLD 1974SC61 wherein Anwar-ul-Haq, J. (as he then was) who delivered the opinion of the Court after referring to the provisions of section 32 of the Arbitration Act at page 64 of the report observed as follows :-- "It will be seen that the scheme of the Arbitration Act is to prevent the parties to an arbitration agitation questions relating to arbitration in any manner other than that provided by the Act. It is for this reason that the section bars a suit concerning the existence, effect or validity of an arbitration agreement or award. It also prohibits a suit for setting aside, amending, modifying or, in any way, affecting an arbitra--tion agreement or award otherwise than permitted by the Act. That this is the true scope of this section is borne out by the large number of foreign judgments referred to by the High Court, and we are in agreement with this interpretation." lie further observed that the section does not bar a. Suit which proceeds on the basis of certain acts done by the parties after accepting the award. For these observations reliance was placed on Kirishnathsa v. Narisinghsa (AIR 1961 SC 1077), Muhammad Yousuf v. Muhammad Hussain (AIR 1966 Mad. 1) and Ch. Muhammad Saleem v. Muhammad Akram and others (PLD 1971 SC 516 Therefore, the decree though passed on award could still be challenged on the ground of fraud.
8. Such a claim could not be hit by the provisions of section 32 of the Arbitration Act.
9. We inquired from Mr. Diwan Bashir, whether the appeal is directed only against the order rejecting the application under Order VII, rule 11 or is also directed against the confirmation of the ad interim injunction. He submitted that it was directed against both. He however firstly, made no submission or argument whatsoever with regard to the order. Of confirma--tion of injunction. Secondly, the memorandum of appeal in the opening paragraph states that "the appellant being aggrieved by the order dated 8-4-1980 passed by the Single Judge of the original side of the High Court, Karachi, certified copy whereof is filed and marked annexure I in Suit No. 11240/80 dismissing the application under Order V11, rule 11, C. P. C. Prefer this appeal inter alia on the following grounds." It is, therefore, clear that the order passed on injunction application has not been challenged in any manner.
10. We, therefore, find no substance in this appeal and accordingly ,dismiss with costs.