1. SALREM AKHTAR, J.-By a short order dated 17-2-1981 we had dismissed the appeal in limine. The following are the reasons for the order This High Curt Appeal has been filed against the order of the learned Single Judge passed in Suit No. 67/79 confirming the award made by the Sole Arbitrator.
2. Before hearing for admission we had called for the record of J. M. 80/76 and Suit No. 67/1979 which we have examined.
3. The respondent was engaged as a Contractor under an agreement which contained Arbitration Clause. As there was dispute between the parties the respondent made an application under section 8 of the Arbitration Act, 1940 with the following prayer.
4. "(a) appoint an arbitrator to enter into and upon the dispute and to adjudicate upon the claims of the plaintiff ;
(b) award costs against the defendants ;
(c) grant such other and/or further relief as may be deemed fit in the circumstances of thecase."
5. The appellants filed their counter-affidavit and submitted that the arbitra--tion clause relied upon by the respondent has been substituted by amended clause 52. A copy of the same was filed with the counter-affidavit but it did not bear the signature of the respondent. This clause seems to have materially changed the previous clause and inter alia provided that in case the amount of the claim is over Rs. 1 lac the dispute shall be referred to two arbitrators to be appointed from the Superintending Engineers of the Department other than the Superintendent Engineer incharge of the work to be nominated by the Chief Engineer of the region concerned and the other by the contractor, In the case of the said two arbitrators not agreeing the case shall be referred to t e award of an Umpire . . . . . . ." The respondent, however, produced a copy of the agreement before the learned Arbitrator in which agreement con--taining Arbitration Clause was duly signed by the Executive Engineer MM Division, Hyderabad, Divisional Accountant and the contractor which reads as follows :- "If any question difference or objection whatsoever shall arise in any way contracted with or arising out of this instrument or the meaning or objection of any part thereof, the rights, duties or liabilities of either party, then save in as far as the decision of any such matter is herein--before provided for as has been so decided, every such matter including whether its decision has been otherwise provided for on or regards the right of or obligations of the parties as the result of such termina-- tion shall be referred for arbitration to such persons as may be appointed in this behalf by Chief Engineer (Irrigation) Department with the consent of party and his decision shall be final and binding and where the matter involved a claim for or the payment recovery or deduction of money only the amount, if any awarded in such arbitra--tion shall be recoverable in respect of the matter so referred."
6. The Advocate-General who was representing the appellant consented to the following order which was passed on 18-4-1978 "Mr. Usman Ghani Rashid has no objection if the prayer contained in clause (a) of the prayer clause in the application is granted and an arbitrator is appointed.
7. The learned Advocates however, further state that they would suggest the name of the arbitrator on the next date. 1, therefore, grant the application and adjourned the hearing for naming the arbitrator to 30-4-1978."
8. Thereafter the matter came up for hearing on 30th April, 1978, when the following order was passed :- "Mr. Hussaini has suggested the names of the following five persons for appointment of one of them as sole arbitrator.
(1) Mr. Zahid Hussain, Suptd. Engineer, Quaid-i-Azam Memorial Fund.
(2) Mr. Z. H. Khan, S. E. Prov. Retired.
(3) Mr. Lt.-Col. Mohd. Anwar, CMES (Navy), Karachi,
(4) Mr. Ch. Ahsanullah, Chief Engineer/Director of Work (Navy) Retired.
(5) Mr. Anwarul Islam, Senior Engineer, Wah Cantt. (Rtd.)
9. No name has been suggested on behalf of the appellant. The Additional Advocate-General is not present. The Department's Representative also does not suggest any name.
10. Under the circumstances I' appoint Mr. Mehdi Ali Siddiqui, retired Additional District & Sessions Judge, Karachi as sole Arbitrator.
11. It is thus obvious that the appellant through the Advocate-General had consented for reference of the dispute to the sole arbitrator and had agreed to suggest the name of the arbitrator which the appellant failed to do. The respondents had suggested 5 names but the learned Single Judge did not select any one of them and named Mr. Mehdi Ali Siddiqui (Retd, Addl. District & Sessions Judge) as the sole arbitrator.
12. The matter proceeded before the sole arbitrator when the parties presented their case, led their evidence and finally award was made on 8th January, 1979, in which respondents were awarded Rs. 90,000 plus interest at 10% per annum from 1-7-1974 till payment and costs.
13. When the award was filed in Court the respondents filed objections under section 30 of the Arbitration Act which was dismissed by the impugned judg--ment and confirmed the award subject to the modification that interest would be payable at the rate of 6 % per annum after the date of decree if the decretal amount is not paid by the appellant within six months.
14. The appeal was filed on 25th August 1980. The office raised an objection that the appeal was barred by time. We have noticed that the judgment was announced on 4-3-1980. The appellants applied for certified copy on 5-3-1980. The fee was estimated on 2?-4-191:0 and copy was made ready on 23rd April 1980 and delivered the same day. After excluding the time taken for obtaining the certified copy of the judgment the appeal is hopelessly time-- barred. The appellants have not filed any application under section 5 of the Limitation Act explaining delay and praying for condonation. In these circumstances this ground is sufficient for the dismissal of this appeal.
15. We have, however, heard Mr. A. R. Akhtar, Advocate for the appellant. The main contention of the learned counsel for the appellant is that the arbitrator was not appointed in accordance with the arbitration agreement as well as the provisions of section 8 of the Arbitration Act, and secondly, the Advocate-General did not have any authority to consent to the reference o the dispute to an arbitrator to be appointed by the Court. The first point was raised before the learned Single Judge and was for very cogent reason repelled. Although the Assistant Advocate-General had argued the matter before the learned Single Judge, the second objection was not raised. At this stage such objection lacks bona fides. In any event after the order appointing the sole arbitrator was passed the appellant could have, filed appeal against it which it did not prefer to do. This objection seems to be an after--thought.
16. Now taking up the first objection of the learned counsel for the appellant, we find that there has been a difference between the parties about the arbitra--tion clause applicable to the case. The one on which the appellant is relying B referred to above, was not signed by the contractor and it cannot be said that the contractor had agreed to that arbitration agreement. It is true that an arbitration agreement should be in writing and need not be signed by both the parties but where the dispute is about the arbitration agreement one signed by the patties and the other signed by one party alone, the Court unless its authenticity is doubtful, will be inclined to accept the agreement which is duly signed by the parties. The respondents had filed photo-copy of the arbitration agreement before the arbitrator which has been placed on record of Suit No. 67/79, in which the impugned order has been passed. For conve--nience sake we have reproduced the said arbitration clause earlier. In this context it would be relevant to refer to section 8 of the Arbitration Act "8. Power of Court to appoint arbitrator or umpire.-(1) In any of the following cases
(a) where an arbitration agreement provides that the reference shall, be to one or more arbitrators to 'tie appointed by consent of the parties, and all the parties do not, after differences have arisen, concur in the appointment or appointments ; or (b) if any appointed arbitrator or umpire neglects or refuses to act, or is incapable of acting, or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied, and the parties or the arbitrators, as the case may be, do not supply the vacancy ; or
(c) where the parties or the arbitrators are required to appoint an umpire and do not appoint him ; any party may serve the other parties or the arbitrators, as the case may be, with a written notice to concur in the appointment or appointments or in supplying the vacancy.
(2) If the appointment is not made within fifteen clear days after the service of the said notice, the Court may, on the application of the party who gave the notice and after giving the other parties an oppor--tunity of being heard, appoint an arbitrator or arbitrators or umpire, as the case may be, who shall have like power to act in the reference and to make an award as if he or they had been appointed by consent of all parties."
17. It is significant to notice that this Arbitration Agreement has been signed by both the parties. This agreement clearly provides that the dispute shall be referred for arbitration to such persons as may be appointed by the Chief Engineer with the consent of the contract. It was alleged in the application under section 8 of the Arbitration Act that in spite of repeated reminders the applicant has failed to appoint an arbitrator. In these circumstances when the matter came up before the learned Single Judge for appointment of the arbitrator a consent order was passed. In our view even if no consent would have been given by the Advocate-General the learned trial Court was competent to appoint the arbitrator. The most significant aspect of the case is that the appellant did not challenge the order for appointment of sol~ arbitrator which it could have very easily done.
18. In view of the fact that no appeal was filed against this order it has become final and binding upon the' appellant. Confronted with this situation Mr. A. H. Akhtar submitted that as the order was without jurisdiction it is not binding. We do not agree with this contention.
19. After the appointment of the arbitrator the appellant submitted to his jurisdiction without any objection and presented the case till the end. On the other hand. Appellant led the evidence and waited till such time the award was made. This conduct of the appellant disentitles it from challenging the award on the grounds raised by the learned counsel for the appellant. The appellant has acquiesced to the objection, if any, and at this late stage cannot challenge the appointment of arbitrator. It is well settled as stated by Russel "if the parties to the reference either agreed before land. To the method of appointment, or afterwards acquiesced in the appointment made, with full knowledge of all the circumstances they will be precluded from objecting to such appointment as invalidating subsequent proceedings. Attending and taking part in the proceedings with full knowledge of relevant facts will amount to such acquiescence". This view has been consistently followed by a number of authorities cited in the judgment of the learned Single Judge and we see no reason to disturb it.
20. The learned Advocate for the appellant contended that the Advocate --General did not have the authority to give consent for the appointment of the arbitrator. He further stated that at that time no representative of the department was present. That may be so but when the Advocate-Gencrai was representing the Department and making the statement he shall be deemed to have made it under the authority and instructions of his client whom he represents. If the Advocate-General had consented without the consent or instructions of the appellant, then the best course open for the appellant was to object to the arbitration immediately when the arbitrator had entered upon the reference, or to have filed an appeal against that order.
21. The fact remains that the appellant did not participate in the arbitration proceedings under protest and continued with the case till it was decided against it. We find no force in the contentions of the learned counsel for the appellant.
22. No other points were raised to challenge the impugned judgment. In consequence for reasons stated above we dismiss this appeal in limine.