FAHIM AHMED SIDDIQUI, J.---Through this appeal, the Province of Sindh impugns the order and award decree dated 22.01.2013, whereby the appellants (i.e. Province of Sindh and Sindh Irrigation and Drainage Authority) are required to pay an amount of Rs.212,580,202/- to the respondent (claimant).
2. Before referring to substantive questi ons of law raised in this appeal, few facts may first be noticed. The respondent (claimant) was a pre-qualified tenderer for the project namely 'For Commissioning of Jamrao. Twin Canal', Being pre-qualified, they submitted their tender on 31-05-1999 for project having Contract No. W70, WB2(B) for a tender price of Rs.174.509 million to be completed within 21 months (630 days) with a maintenance period of 12 months. Being the lowest, the contract was awarded to the respondent (claimant). But, due to increment in scope of work, the original contract time was extended from the original date of completion i.e. 14-05- 2001 to 17-08-2001. The work was successfully completed on the said extended date and the maintenance (defect liability) period ended on 17-08-2002. After completion of work, the respondent (claimant) submitted their final accounts/bills vide letter dated 30.01-2003, showing the payable amount of Rs. 17,50,05,773/- to the Project Manager/Consultants i.e. Messrs Pakistan Drainage Consultants, Sindh, purporte dly appointed by the appellants.
Per respondent (claimant), the said Project Manager/Consultants issued a Final Certificate for payment of Rs.
1,03,17,187/- addressed to the Chief Engineer (Development), Irrigation and Power Department, Hyderabad, Sindh. Per respondent (claimant), the said Project Manager/Consultants did not seek any explanation or serve notice upon the respondent (claimant) as such violated clause 57.1 of the contract. Being aggrieved and pursuant to the arbitration clause in the contract; the respondent (claimant) filed Suit No.1121/2005 under Section 20 of the Arbitration Act, 1940 before , this Court in the original jurisdiction. Initially , by consent Mr. Muhammad Khan Memon was appointed as adjudicator but since no award could be given; therefore, Mr. Muharram G. Baloch was appointed as Sole Arbitrator , who has given the award, which was made the rule of Court through the impugned order and award decree.
3. Through C.M.A. No. 1187/2005 filed under Section 5 of the Limitation Act, the appellants are seeking condonation of delay for filing the instant appeal; therefore, as suggested, Mr. Miran Muhammad Shah, learned Addl. A.G. preferred to argue the listed application first. Mr. Shah, starts his argument by submitting that since the impugned order is a void order; therefore, no limitation is required for filing an appeal against the impugned and order . According to him, as per order dated 17,05.2010 passed by the learned Single Judge, the learned Arbitrator was required to conclude the arbitration proceedings within four months but the same was concluded on 10- 09.2012 i.e. after more than two years without seeking any extension from the court. He submits that the award filed after such a long delay without seeking any extension is not an award in the eyes of law, According to him, at the time of passing the impugned order , the learned Single Judge did not consider this fact, as such the impugned order making the same as the rule of court was a void order so also the arbitration decree. He further submits that there are discrepancies in the suit numbers in the instant matter , which also makes the order and award decree void, According to him, the order for appointment of Sole Arbitrator was passed in Suit No. 1121/2005 while the impugned order was passed in Suit No, 1214/2012 and the notice to the appellants was also given in Suit No. 1214/2012, so also the award decree was drawn in Suit No. 1214/2012, According to him, the impugned order and our degree ought to be passed in Suit No.1121/2005 i.e, in the original suit and not in the Suit No. 1214/2012. He submits that no notice was issued to the appellants in Suit No. 1121/2005. Acco rding to him, even the learned Arbitrator did not give notice before passing award as such the award as well as the impugned order was passed behind the back of the appellants, which is also sufficient to declare the same as void order . In the end, he submits that since the no limitation is required against the void order; therefore, the instant appeal is competently filed, In support of his contentions, he relies upon Mustafa Lakhani v Pakistan Defence officers Housing Authority (2008 SCMR 611), Jehan Khan v, Province of Sindh (PLD 2003 Karachi 691) and Evacuee Trust Property Board v . Mst Sakina Bibi (2007 SCMR 262 ),
4. Conversely , Mr. Radar Alam, the learned counsel for the respondent submits that the impugned order as well as award decree is proper and legal and there is nothing devoid to the law in this respect. Regarding the discrepancies, he submits that there is no such thing as pointed out by the learned Addl. A.G. According to him, the learned Addl. A.G. should be mindful regarding the provision of law in this respect. He submits that the application under Section 20 of the Arbitration Act is required to be numbered as suit and the award is required to be fled as per provisions of Chapter 19 of the Sindh Chief Court Rules (Original Side) due to which such discrepancy was observed by the learned Addl. A. G. He stresses that not only the notices were served upon the appellants but they were present at the time of passing the impugned order . By drawing attention towards the annexures of the counter affidavit, he submits that the notices and reminder were served upon the appellants. While capping his arguments, he relies upon Fonda Malik v. Khalida Malik (1998 SCMR 816), WAPDA v. Khanzada Muhammad Abdul Haque Khan Khattak and Company (PLD 1990 Supreme Court 359), Blue Star Spinning Mills Ltd v. Collector of Sales T ax (2013 SCMR 587 ) and QSD Construction v . State of Bihar (AIR 1999 Supreme Court 1576).
5. Mr. Shah, in rebuttal filed written synop sis in which he again emphasised upon his plea of non-running limitation against the void order and in support of his contentions, he also relied upon Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital and others {2019 PLC(C.S.) 928} .
6. After hearing the arguments of the respective parties, we have gone through the available record as well as synopsis filed by the learned Addl. A.G.
7. The learned Addl, A, G., in his submissions raised numerous objections upon the impugned order as well as award decree to establish the same as void, He contends that since the award was not passed and filed within the. stipulated period of four months mentioned in the order dated 17-05-2010 without seeking any extension; therefore, the impugned order is void for which no limitation is required. Although, Mr. Shah claims that the learned Arbitrator did not seek an extension in time but he could not substantiate it from the record. Nevertheless, we are of the view that such claim cannot be entertained at this stage, especially when the appellants has not raised such plea before the learned Arbitrator or the learned Single Judge of this court. Besides, the impugned order itself reflects that the notices were issued to the appellants and in absence of any objection the learned Single Judge has made the award as the rule of court. In these circumstances, we are of the view that if there was any delay then the same deemed to be condoned and solely on this account the impugned order and award decree cannot be considered as void.
8. Another objection is raised by the learn ed Addl. A.G. is in respect of discrepancie s in the suit with regard to initial proceedings and the proceedings after passing of the Award. He contends that after passing of the Award, notices were required to be issued in Suit No.1121/2005 but the same were issued in Suit No. 1214/2012, as such a misconception arises and it can be presumed that no notice was issued to the appellants after passing the award and before passing the impugned order and award decree. We are dumbfounded to hear such arguments; as the discrepancies, pointed out by the learne d Addl. A. G., are nonentity in nature and the same is actually due to procedural provisions of the Sindh Chief Court Rules (OS). According to Rule 278 of the Sindh Chief) Court Rules (OS), every application under Section 20 of the Arbitration Act, 1940 is required to be verified, numbered and registered as a suit. It was for this reason that the application filed before this Court was registered as Suit No. 1121/2005. Since, the present case was referred without the intervention of the Court i.e. as per the provision of the contract between the parties; therefore, the award is required to be filed as per Rule 283(3) of the Sindh Chief Court Rules (OS). The said rule requires that every such award is to be registered and numbered as a suit; hence the award so filed was registered and numbered as Suit No. 1214/2012. Accordingly , we are of the view that there is no discrepancy in numbering the proceedings before the learned Single Judge, as such there is no question of misconception arises in the minds of the appellants.
9. The plea of non-serving of the notices is also contrary to the facts. It reflects from the record that not only the notices were issued before passing the impugned order but also the reminder was sent to the appellant. We are, therefore, of the opinion that such plea is also not helpful for the appellants. From the entire discussion above, it is clear that the impugned order is not contr ary to any provision of law, as such the same cannot be called as a void order . Nevertheless, the learned Addl. A. G. is harping the same string by emphasising that the order and award decree are void. Mr. Shah has relied upon the case of Munir Ahmed (supra), in which it was held that the limitation does not run against a void Order . The contention raised by Mr. Shah is quite logical; and we all bow before the law laid down by the apex Court. Nevertheless, it is also a fact that the parameter of non-running of limitation against a void order is not an inflexible rule, as laid down by the Hon'ble Supreme Court in a case reported as Blue Star Spinning Mills Ltd v. Collector of Sales Tax (2013 SCMR 587), where a full bench of the Apex Court has observed as under: "The Court specifically adverted to the argument raised by petitioner's learned counsel that no limitation runs against a void order and held that this Is not an inflexible rule; that a party cannot sleep over to challenge such an order and that it is bound to do so within the stipulated/prescribed period of limita tion from the date of knowledge before the proper forum in appropriate proceedings."
In view of the above observation of the apex Court, it is evident that a party cannot take refuge for not challenging an order , under the pretext of void order . In fact, it is necessary that the party claiming that the order is void has to establish first the invalidity and hollownes s of the impugned order . The Hon'ble Supreme Court in the case of Blue Star Spinning Mills (supra) has laid down a principle that non-running of limitation against the void order is not a rigid rule. Meaning thereby that as soon as the aggrieved party came to know about such an order , it is necessary that the wheel of law should be put into motion within the prescribed period or at least within reasonable time.
However , it should not be expected that a party is allowed to slumber deep for a long time after knowledge of such an order . Beside, as explained in the preceding paras, we have already explained that the impugned order cannot be termed as a void order .
10. So far as the point of limitation is conc erned; it is worth noting that no reason was given in the listed application for condemnation of delay and supporting affidavit is given save to mention that the proceedings are contrary to law an award is void. It is the settled law that in case of delay in filing a lis, the party has to explain each and every day of delay otherwise, it cannot be entertained. Nevertheless, the impugned order was passed on 22-1-2013 and on the same date the award decree was drafted but signed on 31-01-2013. The application for a certified copy was filed on 26-04-2013, i.e. after expiry of period of limitation, while copies were supplied to the appellants on 29-04- 2013 but the present appeal was presented on 11-06-2013, i.e. after further delay of two months, while appeal is required to be filed within 20 days as per the provision of Article 151 of the Limitation Act, 1908. Meaning thereby that the present appeal is bleakly barred by time while no ground of condonation is available with the appellants regarding such huge delay in filing the instant appeal. The ultimate outcome of the entire discussion is that the instant High Court Appeal is dismissed being hopelessly time-barred along-w ith all the listed and pending application.