This writ petition calls in question the validity of the judgment dated 18th October, 1978 of the learned Additional District Judge, Faisalabad, whereby, the revision petition filed by the petitioner was dismissed and the judgment of the trial Court dismissing the application of the petitioner for the amendment of the written reply to the application under section 8 of the Arbitration Act, 1940, was upheld.
2. The facts relevant for the disposal of the writ petition may be briefly stated. Respondents Nos. 1 to 6 filed an application under section 8 of the Arbitration Act for the appointment of an arbitrator or arbitrators in respect of a dispute between the parties arising out of partnership deed dated 8th November, 1973 (Annexure A). Para. 14 of the partnership deed stipulates that, if any dispute arises between the parties, the matter shall be settled by the partners mutually between themselves and in case the same, are not settled, they shall be referred to arbitration for decision in accordance with Arbitration Act of 1940 with amendment made therein from time to time. Respondents Nos. 1 to 6 resisted the application vide their reply dated 19th July, 1975 wherein a preliminary objection was taken to the effect that the application was premature, in that, the entire disputed amount was still not paid by the District Council, Faisalabad, and, therefore, the petition was not maintainable. The parties adduced their evidence on the preliminary objections which concluded on 17 June, 1976. Thereafter,, the learned trial Judge, in view of the evidence before him and after perusing the record and hearing the parties, over-- ruled the preliminary objection and directed that in terms of para 14 of the partnership deed, referred to above, the matter should be referred to the arbitrators and they should resolve the basic dispute between the parties. Accordingly the parties were directed toth submit the names of the arbitrators on or before 8th February, 1977 to the trial Court, by an order dated 27th January, 1977 of the learned Civil Judge, Faisalabad (Annexure D). Subsequently, on 19th o--- May, 1977, the petitioners filed an application for amendment of their written reply. The amendment was prayed for to add an additional ground that the- trial Court had no jurisdiction to entertain the petition and that the petition was also bad and void. The application was dismissed by the learned Civil Judge, vide his order dated 16th July, 1977 (Annexuce I) on the ground that amendment, if allowed, would entirely change the stand already taken by the petitioners and would also involve the parties into frivolous litigation. The revision petition filed by the petitioners was also dismissed by the learned Additional District Judge, Faisalabad, vide his order dated 18 October, 1978, on the ground that the application for amendment was filed at a belated stage and the trial Court was justified in rejecting the same. The judgment of the learned Additional District Judge, dated 18th December, 1978 is at Annexure K which has been impugned in this writ petition.
3. The learned counsel for the petitioners contends that the right to move the Court by an application under subsection (2) of section 8 of Arbitration Act, would have been available to respondents Nos. 1 to 6 only if a notice contemplated by subsection (1) of that section had been given and the statutory period of 15 days had expired. In the instant case, it is submitted that no such notice as required was served by the respondents and, therefore, the petition was not maintainable. The learned counsel for the petitioners further submits that the question whether the allegations made in support of amendment are true or false could not have been decided summarily at the time of considering the application for amendment and that, in any case, the provisions relating to amendment ought to have been liberally exercised by the trial Court and the same ought not to have been refused unless and until it has had the effect of setting up an altogether different cause of action. In the instant case, an objection was taken to the jurisdiction of the Court and maintainability of the petition which could not have the effect of setting' up a different cause of action. It is submitted that the impugned order of the Courts below is in patent violation of the raw declared by the superior Courts on - the scope of amendment of pleadings as envisaged by Order V1, rule 17 of the Code of Civil Procedure. Reliance is placed on Syed Ahlas Hussain and others v. Water and Power Development Authority (IW7 SC M 8.284), where it was held that all rules of Court' are nothing but provisions intended to secure the proper administration of justice, and it is, therefore, essential that they should be made to serve and be' subordi--nate to that purpose so that full powers of amendment must be enjoyed and should always be liberally .Exercised, but nonetheless no power has been given to enable one distinct cause of action to be substituted for another, nor to change, by amendment, the subject-matter of the suit.
4. The learned counsel for the respondents submits that the filing of an application itself for appointment of an arbitrator before the expiry of period of 15 days as required by subsection (1) of section 8 is directory and not mandatory and that in any case, after filing of the application in the Court, sufficient notice was deemed to have been given to the petitioners. It is further submitted that it is a settled haw that any error in the procedure does not have the effect of vitiating the proceedings and at best it may amount to an irregularity. Ch. Abdus Salim, the learned counsel for the respondent further submits that the question of grant of amendment is discretionary with the Court and merely because the discretion has been exercised by that Courts below illegally would not ipso facto render the impugned order as without lawful authority so as to warrant interference in the exercise of writ jurisdiction. The lower Court was competent to decide the question of amendment and therefore, the exercise of discretion by the trial Court as well as by the revisional court is not open to challenge in the discretionary constitutional jurisdiction of this Court. Reliance was placed on Mohammad Hussain Munir etc. v. Sikandar and others (PLD 1974 SC 139). The learned counsel for the petitioners in rebuttal submits that service of notice as required by subsection (1) of Section 8 of the Arbitration Act was a condition precedent for vesting jurisdictionth in the trial Court to entertain a petition for the appointment of arbitrator. In the instant case, since this condition precedent has not been fulfilled, the impugned order is void and liable to be struck down in the exercise of writ jurisdiction. Reliance is placed on E. A. Evans v. Muhammad Ashraf (PLD 1964 SC 536).
5. Be that as it may, the learned counsel for the parties have agreed that the case be remanded to the learned trial Court for deciding in the first instance the preliminary objection as to the maintainability of the petition and thereafter, taking further proceedings for the disposal of the application under section 8 of the Arbitration At in accordant with law. Order accordingly. The writ petition is accepted to this extent only.
6. The parties are directed to appear on 3rd April, 1982, before the learned District Judge, Faisalabad, who will entrust the case to some Civil Judge of competent jurisdiction.
7. There shall be no order as to costs.