The instant Constitutional petition impugns order dated 28.5.201 1 of learned Civil Judge, Jhang whereby an application under section 12(2), C.P.C. was allowed, order and decree dated 14.3.1990 was set aside, and also the order dated 02.7.2016 of the learned Addl. District Judge, whereby the civil revision petition filed by the petitioner against order dated 28.5.201 1 was dismissed.
2. The relevant facts for disposal of petitio n precisely are that an application under section 14 of the Arbitration Act, 1940 was filed by (late) Ajaeb Khan predecessor of the petitioners, praying therein that a dispute between the parties was referred to the arbitrator who made and pronounced his award on 23.12.1989 and that the award be made rule of the court and decree be passed in terms thereof. A conceding written reply was filed after which the learned Civil Judge allowed the application vide order dated 14.3.1990 and ordered that the award be made rule of the court and a decree in terms thereof be passed.
3. For the annulment of the decree, Mehr Muhammad Murad and others, predecessors of respondents, filed an application under section 12(2), C.P.C., claiming that the decree was obtained by fraud, collusion and misrepresentation and that the same was liable to be set aside. The application was resisted, issues were framed, evidence recorded, after which the learned Civil Judge vide order dated 28.5.201 1 allowed the application and set aside the order as also the decree dated 14.3.1990. Feeling aggrieved by the same the petitioners filed a revision petition which too was dismissed by the learned Addl. District Judge, Jhang vide order dated 02.7.2016, in result the proceedings in the application for making the award a rule of the court, were revived.
4. Learned counsel for the petitioners submits that the orders passed by the courts below are unsustainable, the respondent Nos.1 to 10 have asserted their right on the basis of an agreement to sell, while the agreement was assigned to Karim Bakhsh, the ascendan t of the petitioner , and that the agreement did not give any right to sue; rather compensatory clause was included and, therefore, neither suit for specific performance could be filed nor the respondents had any locus standi to move application under section 12(2), C.P.C. Further submits that no allegations of fraud and misrepresentation against the petitioners or against the allottee were made nor any jurisdictional objection was pointed out while the petitioners had specifically claimed that they were bona fide purchasers and in these circumstances the impugned orders are unwarranted in law .
5. The arguments have been considered in the light of copies of record annexe d with this petition, the perusal whereof reveals that (late) Ajaeb Khan, the predecessor-in-interest of the petitione rs, moved an application under section 14 of the Arbitration Act, 1940 stating therein that the award dated 23.12.1989 of the arbitrator be made a rule of the court against Muhammad Aksar and Muhammad Hussain. The award was in respect of land measuring 100 kanals in Square No 96, Killa No. 1 to 12 and 13/1 in Chak No. 6/3-L, Tehsil Ahmad Pur Sial, District Jhang.
6. The application was not opposed, rather a conceding reply was filed, after which the learned Civil Judge seized of the matter made the award rule of the court vide order dated 14.3.1990. Mehr Muhammad Murad, the predecessor of respondent Nos. 1 to 15, and Gohar-ur-Rahman, respondent No.6 herein, filed an application under section 12(2), C.P.C. to set aside the decree on the grounds of fraud and misrepr esentation, claiming therein that
(late) Ajaeb Khan was well-aware of the fact that the original owner had entere d into an agreement of sale on 25.1.1982, received major portion of consideration, the allottee had executed a general power of attorney in favour of Habib Bakhsh on 25.1.1982 and a suit for specific performance was filed on 22.5.1990 wherein the original allottees were proceeded ex parte . Malik Ehsan-ul-Haq Bhutta, Advocate was the counsel of (late) Ajaeb Khan, who filed the application for making the award a rule of the court and the same counsel had earlier moved an application on behalf of Raja Muhammad Ayyaz for his impleadment as a party in the suit for specific performance and that the counsel was also representing Mst. Jaifalan, etc. and in view thereof the collusion, misrepresentation and fraud in obtaining the decree in the arbitration matter was obvious. The application was resisted, issues were framed, evidence was produced and finally the learned Civil Judge vide order dated 02.7.2016 allowed the application under section 12(2), C.P.C., by taking into consideration the entire evidence and number of factors which reflected that the decree was obtained by fraud. It was taken note of by the learned Civil Judge that in the Special Power of Attorney , on the basis of which an arbitration agreement was statedly entered into, there was no clause empowering the attorney to refer any dispute to arbitration or to execute any arbitration agreement or to agree for any settlement through arbitration and therefore, the very agreement of reference to arbitration was void.
It was also observed that Muhammad Aksar did not have any authority to enter into any agreement of arbitration on behalf of original allottee. It was further observed that the special power of attorney , Ex.P.20, was in the name of Raja Abdul Rauf, who was not the allottee while the allottees were Mst. Jaifalan, Abdur Rauf, and Mehr un Nisa as established from Ex.P.11, i.e. the allotment order dated 17.9.1988. The learned Civil Judge took note of the fact that the application for making the award a rule of the court was filed by Mr. Ehsan ul Haq Bhutta, Advocate on behalf of
(late) Ajaeb Khan and he was the same advocate, who moved an application on behalf of Raja Muhammad Ayyaz for impleadment as a party in the suit and all this proved collusiveness between (late) Ajaeb Khan and the original allottee. In brief, taking note of multiple factors, findings of fact were recorded by the learned Civil Judge whereby the decree was found to be a result of misrepresentation and fraud, and was accordingly set aside.
5. The learned Addl. District Judge in revision petition filed by the petitioner , re-examined the entire evidence and re confirmed all those factors which were taken note of by the learned trial court to conclude that through misrepresentation, fraud and collusion, the alleged award was made a rule of the court. It was observed that the evidence produced by the petitioner was contradictory , the alleged agreemen t was claimed to be made on 21.12.1989 at Islamabad but strange enough on the same day it was claimed that differences arose for the resolution whereof appointment of arbitrator vide agreement, Ex.A.14, was made on 21.12.1989. The learned Addl.
District Judge, observed that there was mala fide on part of (late) Ajaeb Khan and that as a result of collusiveness, a conceding written reply was filed, the proceedings were concluded in haste, the rights of the person in whose favour the agreement had been made by the original allottees was completely ignored, and that there were number of claimants of the property raising different claims and that the decree being a result of fraud could not sustain.
The revision petition was accordingly dismissed.
8. Learned counsel for the petitioner was unable to point out any misreading or nonreading of any evidence on record. As observed hereinabove, the alleged agreement of sale on the face of it appears to be suspect insofar as the very fact that it was claimed that on 21.12.1989 the agreement to sell took place, on the same day the dispute arose, then on the very same date an alleged agreement was prepared in Islamabad on a stamp paper which was purchased from Jhang on the same day. It is also obvious that the alleged agreement for arbitration was executed by Muhammad Aksar as alleged special power of attorney holder of Raja Abdur Rauf, Raja Ayyaz Ahmad, Mst.
Mehr un Nisa and Mst. Jaifalan. The examination of power of attorney , Ex.P.20, shows that it did not provide for power to enter into arbitration agreement and therefore the alleged attorney did not have any authority either to execute the arbitration agreement or to make a reference of any alleged dispute to arbitration.
9. In "Mst. Muhammdi v. Fazlur Rehman and others (PLD 1954 Pesh. 61) it was observed to the effect that a person generally authorized to do all acts in the proceedings of a suit will not be entitled by reason of that fact to refer the matter in difference to arbitration, which power if he has to exercise must be specifically conferred upon him. In the absence of any specific power to make a reference to arbitration he will have no competence or authority to refer any dispute to the Arbitration . In "Rashida Begum v. Ch. Muhammad Anwar and others" (PLD 2003 Lah. 522) observation was recorded to the effect that if in the power of attorney , general powers were conferred upon the attorney to conduct the cases before the court and also to alienate the property but there is no specific power given to him to enter into any arbitration agreement, for a reference of matter to the arbitrator , the general powers cannot in any manner be construed as intention to authorize the agent to seek resolution of dispute through arbitration. If the intention were to confer such power , nothing preven ts to specifically empower the attorney in this behalf and that the conspi cuous omission of the authority in power of attorney clearly indicates that the alleged attorney was never authorize d to enter into arbitration agreement or to agree for the appointment of anyone as arbitrator and such agreemen t could not bind the principal. In the instant case the special power of attorney , Ex.A.20, did not contain any clause authorizing the alleged attorney to execute the arbitration agreement or to refer any matter to arbitration. Being so, the alleged arbitration agreement and the subsequent proceedings on the basis thereof will not be legal or operative in law let alone to make such award a rule of the court. In this view of the matter the order of the court making the award a rule of the court was otherwise without jurisdiction and a result of fraud on the face of the evidence on record which was rightly annulled . An additional factor which has been noted from the file is that the disputed award, which is allegedly made and announced on 23.12.1989 by Muhammad Hussain alleged arbitrator , Ex. A.15, shows that there was some dispute of the property and that the alleged arbitrator finally announced that the dispute regarding payment had been settled, nothing was due and that by the said award, (late) Ajaeb Khan was declared to be the owner of the land in Square No. 96, Killa No. 1 to 12, 13/1, measuring 100 kanals, situated at Chak No. 6/1, Tehsil Ahmadpur Sial, District Jhang. It is a settled rule that where the award declares or assigns rights in the immovable property , it could not have any legal effect unless it was registered. The property worth more than Rs. 100/- could not be conveyed nor any declaration of title could be given in respect of immovable property through an award which was unregistered. Reference can also be made to "Mst. Farida Malik and others and others v. Dr. Khalida Malik and others" (1998 SCMR 816) wherein it was observed by the honourable Supreme Court to the effect that if an award is made without intervention of court it was compulsorily registerable. An unregistered award though in view of amendment in section 49 of the Registration Act, 1908 by Ordinance XLV of 1962 is receivable in evidence but by itself it will not operate to create, declare, assign, limit or extinguish rights to or in the immovable property and there fore, an unregistered award will be ineffective to convey the rights in the properties in favour of respective parties . Reference can also be made to the observations of the honourable Supre me Court in "Haji Nawab Din v. Sh. Ghulam Haider and another" (1988 SCMR 1623 ) where the August Court observed to the effect that an unregistered award will not operate to create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent to or in any immovable property. In the instant case, the petitioner did not claim that the award was ever registered, notwithstanding the fact that it purported to create an alleged interest in the immovable property. As a result thereof it could not create any interest in the absence of registration and no decree could be passed on the basis thereof unless proper registration had been made. It appears that by concealment of facts and misrepresentation, an invalid award was made a rule of the court. The order making the award a rule of the court being a result of fraud and otherwise without lawful authority, was liable to be annulled on this ground as well.
10. As noted supra, concurrent findings of fact have been recorded by two courts below which could not be pointed out to be suffering from any misreading of evidence or error of law. On re-examination of the record, it is observed that the findings of the courts below are based on correct analysis of evidence and otherwise do not suffer from any error of law or jurisdiction.
11. For the reasons hereinabove this writ petition is meritless which is dismissed .