' SAEEDUZZAMAN SIDDIQUI, J.-This appeal under section 3 of Law Reforms Ordinance, 1972, has been filed against the order of a learned Single Judge of this Court dated 22-9-80, whereby the application under section 20 of the Arbitration Act filed by the respondent was allowed and the suit was decreed. Mr. Abdul Sattar Shaikh, the learned Additional, Advocate-General appearing for the appellant, has raised the following contentions before us :--
(1) That this Court had no territorial jurisdiction in the matter as the subject-matter of the arbitration was construction of Sind House, which is situated in Islamabad.
(2) That the arbitration clause contained in clause 28 of the Contract was not signed by the parties and therefore it was not enforceable.
(3) That the application under section 20 of the Arbitration Act filed by the respondent was misconceived in law, as no specific dispute was raised which could be referred to arbitrator.
(4) That no notice as required under clause 28 of the Contract, was served upon the appellant and as such the application under section 20 of the Arbitration Act filed by the respondent was not maintainable.
2. We will deal with the contentions of the learned counsel for the ' appellant in the same order in which they are raised before us. It is contended by Mr. Abdul Sattar Shaikh, that the subject-matter of the application under section 20 of the Arbitration Act, being the construction of Sind House at Islamabad, the learned Single Judge, had no jurisdiction to entertain the suit which should have been filed before the Court in whose local limits and jurisdiction the property namely, the Sind House was situated. Reliance in this connection is specifically placed by the learned counsel on section 16 of the Code of Civil Procedure. It is however not disputed by the learned counsel that contract under which the construction of Sind House-was awarded to the respondent was executed at Karachi and it is also conceded before us that the objection as to the jurisdiction of this Court to entertain application under section 20 of the Arbitration Act was not raised in the suit before the learned Single Judge. Section 21 of the Code of Civil Procedure enjoins on a defendant to raise the objection as to the place of suing before the Court of First instance at the earliest possible opportunity and in all cases before the Settlement of issues or at the time of its settlement. This provision further debars the appellate Court from allowing the party to raise this objection in appeal if he omitted to raise the same before the Court of 1st instance. Mr. Sattar Shaikh very vehemently urged that the . Question of jurisdiction is always allowed to be raised even for the first time before an appellate Court but we are unable to agree with the learned counsel in view of the clear language of section 21, C. P. C. Which provides that the objection as to the place of suing cannot be allowed to be raised for the first time in appeal. As the appellant had omitted to raise this objection before the learned single Judge the same cannot be allowed to be raised now in view of section 21 of the Code of Civil Procedure. Even otherwise section 120 of the Code of Civil Procedure provides that the provisions contained in sections 16, 17 and 20 are not applicable to High Court in exercise of its original civil jurisdiction. We, therefore, reject the contention of the learned counsel that the learned single Judge had no jurisdiction in the matter.
3. It is next contended by Mr. Abdul Sattar Shaikh that the arbitration clause was ineffective as it was not signed by the parties. The contention has no force. The requirement of law is that an agreement to refer the present or a future dispute to arbitrator should be in writing. The learned Single Judge found that the contract under which the work was awarded to respondent and which contained the disputed arbitration clause was fully acted upon by the parties and even the provision contained in the arbitration clause of referring the dispute to consultants as a pre- condition to refer the dispute to arbitrators was also resorted to by the appellant. We, therefore, find no substance in the contention of the learned counsel that the arbitration clause was not effective as it was not signed by the parties.
4. The next contention of the learned counsel for the appellant is that no specific dispute was raised by the respondent and as such there was no question of grant of application of respondent under section 20 of the Arbitration Act by the learned single Judge. In order to dispose of this contention of the learned counsel it will be necessary to state here the fact which led to the filing of application under section 20 of the Arbitration Act by the respondent. The respondents were awarded a contract in April, 1974 for construction of the Sind House at Islamabad. It is alleged that in February, 1975, the appellant substantially changed the design and specification of the project, which resulted in execution of an additional agreement between the parties in order to remove the inconsistency as to the rate of tender document. This subsequent agreement was executed on 8- 8-1977, and it appears, that after execution of the second agreement certain dispute arose between the parties and the matter was referred to the consultants in accordance with clause 28 of the general conditions of tender, under which the work was originally awarded to respondent.
The consultants it appears, gave their decision in the dispute which was in favour of the respondent, on 30-8-1978. It further appears that instead of accepting this decision of consultants, the appellant invited fresh tenders for awarding the unfinished work of Sind House on 4-9-1978. The respondent in these circumstances filed J. M. No, 34 of 1978 against the appellant seeking to restrain them from awarding the work to any other person in view of the decision of consultants. In J. M. 34 of 1978 the appellant for the first time denied the existence of arbitration clause to refer the dispute between the parties to arbitration. The respondent, therefore, instituted Suit No, 1044 of 1978 praying that the appellant be directed to file the arbitration agreement in Court and the dispute be referred to the arbitrator in accordance thereto. The above facts clearly show that the appellant were not prepared to accept the decision of the consultants who had decided the dispute in accordance with clause 28 of the General Conditions of Tender document and on the contrary had cancelled the work awarded to respondents and took steps to award the same to some other person. In our view, the existence of these differences between the parties was sufficient to attract the application of arbitration clause and the learned Single Judge in these circumstances was fully justified in directing the appellant to file the arbitration agreement in Court and referring the dispute to arbitrators in accordance with the arbitration clause. We accordingly reject this contention of the learned counsel.
6. It is lastly contended by Mr. Sattar Sheikh on behalf of appellant that clause 28 of the arbitration agreement required service of notice on appellant within 28 days of receiving intimation of the decision of consultants, if it was not acceptable to the party and as no such notice was served upon the appellant the proceedings instituted by the respondent were not competent. The contention of the learned counsel has no farce. The decision of the consultants was not disputed by the respondents and on the contrary they were seeking to endorce that decision against the appellant and for that purpose they filed J. M. 34 of 1978. It was the appellant who disputed the decision of consultants and described it as a farce. In these circumstances the requirement of service of 28 days notice on the appellant through the consultant did not arise. In any case the non-compliance of this provision of the arbitration agreement, in these circumstances, did not affect the validity of proceedings under section 20 of the Arbitration Act, as the object of giving the above notice was simply to give opportunity to the party concerned to make a reference of the dispute under clause 28 of the contract to the arbitrator, if it was so desired. The service of notice of J. M. 34 of 1978 and summons in Suit No, 1044 of 1978 on the appelant in the circumstances of the case could be treated as a notice of intention of the party to take the dispute to arbitration. It is not disputed that order of learned single Judge directing the appellant to file the arbitration agreement in Court and thereafter, reference of the dispute to arbitration was made long after passing of 28 days from the service of notice in J. M. 34 of 1978, and summons in Suit No, 1044 of 1978. We accordingly reject the contention of the learned counsel. The learned counsel for the appellant while attacking the validity of arbitration clause on the ground of non-signing of the same by the parties had also urged that the arbitration agreement stood superseded as a result of execution of the second agreement between the parties which made no provision for reference of the dispute to arbitration in the event of a dispute. The learned single Judge has considered this point in detail in the impugned judgment and we find no reason to differ with the conclusion reached by the learned Single Judge on this score. No other point was urged. In the result we dismiss the appeal but will make no order as to costs.