' Briefly stated the facts giving rise to this petition under section 115, C. P. C. Are that the respondent submitted an application under section 14 of the Arbitration Act to the civil Court for making the award rule of the Court on the assertions that on a dispute having arisen within the meaning of the contract, which provided for settlement of dispute through arbitration, the parties with the intervention of the Martial Law Authorities, and without the intervention of the Court, appointed arbitrators and they gave their award on 28th March, 1979. The original award alongwith the forwarding letter of Martial Law Headquarters was forwarded by one of the arbitrators to the respondent who filed the same in Court alongwith the aforesaid application.
' The petitioner filed objections to the award wherein it was asserted, inter alia, that one of the arbitrators, namely, Mushtaq Husain Butt, was not named or agreed as one of the arbitrators ; that the arbitrators have not given any unanimous award as they have given their decision separately and have seriously differed with each other ; that the award has been given by only one arbitrator, namely, Lt.-Col. Sulaiman Khan as is apparent from paras. Nos. 15, 16 and 17 wherein the words used are, "I award", and that Lt.-Col. Sulaiman Khan was consin-brother of Group Capt. Salahud Din, respondent, and the arbitrator having not disclosed his this relationship and interest, has misconducted himself and the proceedings.
2. The learned trial Court after holding proceedings made award rule of the Court. The liability of the petitioner thus adjudged amounted to Rs, 45,830. It may be noted at this stage that the evidence of the petitioner was closed by the trial Court vide order dated 6th November, 1979. In this order, the petitioner was conceded the right to appear as his own witness but in the proceedings later held? His statement was not recorded and the learned trial Court proceeded to make the award rule of the Court without allowing an opportunity to the petitioner to appear as his own witness.
' The petitioner then filed an appeal in the Court of District Judge, Lahore, and the same was ultimately dismissed by the learned Additional District Judge Lahore, vide judgment dated 11th April, 1981. The three issues framed by the learned trial Court read as under :-
(1) Whether there was no provision in the agreement in respect of Arbitration ? O. P. R.
(2) If issue No, 1 is proved then is the award illegal, mala fide ? O.P.R.
(3) Whether Arbitrators have misconducted themselves and their proceedings, if so, its effect ? O. P.
R.
(4) Relief.
' These issues were held against the petitioner by both the Courts obviously for the reason that there was no evidence on the record to substantiate the averments and the allegations contained in the objection petition.
3. Learned counsel for the petitioner in support of the revision petition argued that a bare reading of the award would show that all the proceedings were conducted by Lt.-Col. Sulaiman Khan alone and the award is also that of the single arbitrator ; that the other two arbitrators did not join in the so-called proceedings held and, in any case, had not given their verdict or decision in respect of the entire dispute ; that neither the reference nor the record of the arbitration proceedings was submitted to the civil Court nor any contract wherein the parties had agreed to appoint the three arbitrators, was produced on record ; that in the arbitration clause contained in the agreement, the named arbitrators were Lt.-Col. Sulaiman Khan and Agha Mukammal Shah and, as such, the award given by including Mushtaq Husain Butt. Stands vitiated and is thus illegal and void ; that the learned trial Court, acting illegal, not only closed the evidence of the petitioner but also did not examine the petitioner though it was said in the order dated 6th November, 1979 that the petitioner can appear as his own witness. It was further urged that though a date was fixed for the said purpose but again the proceedings were adjourned and without recording even the statement of the petitioner, the award was made rule of the Court.
4. In reply, learned counsel for the respondent argued that the award was made by all the three arbitrators who were duly appointed through a writing submitted to the Martial Law Authorities ; that the award is perfectly valid and legal ; misconduct cannot be spelt out from record as no evidence was produced ; that the learned trial Court had rightly closed the evidence of the petitioner as he had failed to file tie list of witnesses in accordance with law and that, in any case, the revision petition is liable to be rejected as the appeal filed before the learned District Judge was incompetent. According to him, in the application under section 14 of the Arbitration Act filed by the respondent, the jurisdictional value of the Court was fixed at Rs, two lacs and, as such, the appeal against the order making the award rule of the Court was to be filed in the High Court and not with the learned District Judge. He argued that the petitioner is not entitled to invoke revisional jurisdiction of this Court as he should have filed an appeal against the corder making the award rule of the Court directly to this Court instead of filing it in the Court of District Judge. In support of this plea reference was invited to the definition of the term 'Court' given in section 2(c) of the Arbitration Act. According to this clause 'Court' means "a civil Court having jurisdiction to decide the question forming the subject-matter of the reference if the same had been the subject-matter of a suit...". Learned counsel referred to para. 8 of the award for the purposes of indicating the subject- matter of the reference. According to this para. Petitioner (contractor) claimed a sum of Rs, 1,99,790 whereas the respondent (owner of the house) claimed Rs, 1,28,680. The amount held payable, by the petitioner to the respondent, in the award was Rs, 45,830. According to the learned counsel as the subject-matter of reference, as indicated in the award, was more than Rs, 50,000, the appeal against the order making the award rule of the Court would lie to the High Court and the same was beyond the pecuniary jurisdiction of the District Judge. Learned counsel also sought support from rule 6 framed under section 9 of the Suits Valuation Act. This rule reads as under :- ' R.
6.-"Suits in which the plaintiff in the plaint seeks to set aside an award, and applications registered as suits under the provisions of sections 20 and 31 of the Arbitration Act, X of 1940 (to file an agreement to refer to arbitration or to file an award), when or so far as the award or the agreement relates to property :- ' Value (a) For the purposes of the Court Fees Act, 1970, as determined by the Act.
(b) For the purposes of the Suits Valuation Act, 1887, and the Punjab Courts Act, 1918 (as amended), the market value of the property in dispute, subject to the provisions of Part I of the Suits Valuation Act, 1887, and of the rules in force under the said Part, so far as those provisions are applicable."
5. In reply, learned counsel for the petitioner argued that clause (b) of the aforesaid rule 6, refers to the rules framed under Part I of the Suits Valuation Act and the rules framed by the Provincial Government under section 3 of Part I as such become relevant. He. Therefore, relied heavily on the following part of the Schedule attached to the Rules framed under section 3 of the Suits Valuation Act, 1887 :- {{TABLE}} Court FeesNature ofValue forSuits Valua- Valuation for Act suit Court-feetion Actpurposes of Purposesand rulesjurisdiction 12 345 "Section 7In suits for spe- According to Section 3 andAs regards land, Paragraphcific perfor- the amount rules under as valued by the (x)mance :of value of S. 3.rules under sec--
(d) of an award the propertytion 3, vide rule in dispute.5. In regard to other pro-- perty, presum-- ably the market value but this is left to judicial decision as sec-- tion 8 does not apply.--- {{TABLE}} ' Learned counsel for the petitioner relying on column 5 of the Schedule argued that the matter of valuation for purposes of jurisdiction is left to judicial decision on the subject. As regards judicial decisions, I have noticed in the commentaries on the Suits Valuation Act a judgment of the Calcutta High Court in Mohesh Chandra Kundu v. Amar Chand Kandu wherein it was observed that value depends on the thing awarded rather than on the matter originally in dispute in case of an award without intervention of the Court. This decision was given with reference to the provisions relating to arbitration contained in the Second Schedule of the Civil Procedure Code, 1908. The aforenoted decision of the Calcutta High Court as well as provisions of the Schedule quoted above and the Rules framed under the Suits Valuation Act no longer hold the field after the enforcement of the Arbitration Act, 1940. It will be seen that Arbitration Act, 1940, provides a complete Code in itself for all these matters. After the commencement of the Act, the suit for specific performance of an award being no longer competent, the provisions contained in section 7(xXd) of the Court Fees1 Act, 1870, A and of the Schedule to the Rules framed under section 3 of the Suits Valuation Act no longer apply. Similarly, rule 6 framed under section 9 of the Suits Valuation Act is of no assistance as the test laid down in section 2(c of the Act is the subject-matter of the reference and not the market value of the property in dispute and that too subject to the provision of Part 1 of the Suits Valuation Act. Thus, the value of the subject-matter of the referenced will determine the jurisdiction of the Court and, therefore, to hold otherwise is to fly in the face of the statute. Reference may at this stage be made to the case of Lahore-Ferozepur Transport Society v. Malik Muhammad Sadiq wherein in view of the Arbitration Act it was held that "Rule 10 of the Rules framed by the High Court under section 9 of the Suits Valuation Act is not applicable to application made under section 33, Arbitration Act, 1940, and that the rule applies only to suits. It was further held that the valuation for the purposes of jurisdiction of the application under section 33, Arbitration Act, 1940, must be determined in accordance with the provisions of the Arbitration Act, 1940, and not by a direct reference to the Suits Valuation Act, 1887".
6. It is also pertinent to note that before the commencement of the Arbitration Act, 1940, a valid award could be enforced in two ways-
(i) it might be made rule of the Court on a rectification made by a party to the award under the Court of Civil Procedure or under the Arbitration Act, 1899, as the case may be.
(ii) a party to the award might alternatively treat the award as an independent source of title and enforce the same by a suit.
In either case the opposite party was at liberty to challenge the validity of award. After commencement of the Arbitration Act, 1940, the procedure for enforcement of an award by a suit is taken away by section 32 of the Act. The Act insists that an application must be made within the period of limitation in a Court for filing of the award. Similarly, section 31 of the Act deals with the jurisdiction of the Court. It provides that all matters relating to the reference should be made before the same Court in which the first application in connection with the arbitration matter was made and that it will be the said Court which alone be competent to decide all questions in relation to that particular arbitration. It also provides for the Court where an award is to be filed. By reading section 31 with the definition of the term 'Court' given in section 2(c) of the Act, it is plain that the award is to be filed in that Court which will have jurisdiction to decide the question torming the reference if the same had been the subject matter of the suit. Thus, to determine the question whether the Court before which the applications under the provisions of Arbitration Act, 1940, for instance under sections 31, 32 and 44, are filed, has jurisdiction to enter- tain them or not, one should first of all ascertain what the questions are which form the subject-matter of the reference to arbitration. Then one is to ask. Supposing these questions had arisen in a suit which is the Court which would have jurisdiction to entertain the suit ? That would be the Court having jurisdiction under the Arbitration Act also. In support of the aforesaid view, reference again may be made to the case of Lahore-Ferozepur Transport Co-operative Society Ltd. v. Malik Muhammad Sadiq wherein it was held that "on an application under section 33 of the Arbitration Act, the Court which would have the jurisdiction to decide a suit in respect of the subject-matter of the reference which led to the making of the award, would have the jurisdiction to determine the validity of the award".
The same view was expressed in the case of Bithal Das v. Shri Nath Das. It was observed in this case that having regard to the definition of the word 'Court' as defined in clause (c) of section 2 and the terms of section 31, the jurisdiction of a Court for passing a decree in terms of the award depends upon the questions which form the subject-matter of reference to the arbitration and not on the terms of award. It may be added that no distinction can be made for the purposes of determining the Court which will have the jurisdiction to pass a decree in terms of award, whether the award was made through the intervention of the Court or without the intervention of the Court.
As regards the award made through the intervention of Court is concerned, the matter is beyond2 3 4 controversy as the application to file the agreement under section 20 will be filed in the Court which has jurisdiction to entertain the subject-matter of the reference if the same had been the subject-matter of a suit. Again no difficulty will arise in the case where any application is made under section 5, 8 or 9 of Act as these applications will be made in the Court which has the jurisdiction to decide the question forming the subject-matter of the reference is the same had been subject-matter of a suit. Would then different principle apply where award was made within intervention of the Court, or due to the fact that in the award the liability having been determined, is known and fixed. To my mind the answer to be returned should be in the negative. Even in such a case the subject-matter of the reference will determine the Court which will be having the jurisdiction as otherwise what will happen in a case where award was filed in a Court having jurisdiction with reference to the amount awarded but the award was remitted to rectify the mistake in the face of the award or to decide the matter left undetermined and on remand the Arbitrator gives an award for an amount which exceeds the pecuniary jurisdiction of the Court which had remitted the award and in which was filed earlier taking the amount then awarded as controlling the pecuniary jurisdiction. This difficulty would not arise if in the case of an award made with-1 out intervention of the Court, the same principle as is given in section 2(c)K of the Act is also followed. Moreover, in view of the provisions of section 14 read with section 31 of the Arbitration Act, it is reasonable to construe that the award is to be filed in that Court which will have the jurisdiction to decide the question forming the subject-matter of the referent if the same had been the subject-matter of a suit.
7. The question of forum of appeal may now be taken up. The provision relevant for determining the value of appeal for purposes of jurisdiction is contained in section 18 of the West Pakistan Civil Courts Ordinance, 1962 (II of 1962), which reads as under :- "S. 18.-(1) Save as aforesaid, an appeal from a decree or order of a Civil Judge shall lie :-
(a) to the High Court if the value of the original suit in which the decree or order was made exceeds twenty-five thousand rupees ; and
(b) to the District Judge in any other case."
Now the value of the suit in arbitration matter being the value of the) subject-matter 61 the reference, the same will determine the forum of appeal. As such, it will be seen that the objection of the learned counsel for the respondent that the appeal filed by the petitioner before the District Judge was incompetent, has much force, as the value of the appeal exceeded the pecuniary jurisdiction of the learned District Judge.
8. The matter, however, does not end here. It is to be noted that the objection relating to pecuniary jurisdiction was not raised before the learned District Judge. The appeal was, however, dismissed on other grounds. The question that arises in these circumstances is whether this revision petition can be treated as an appeal. Learned counsel for the petitioner submits that the revision may be treated as an appeal as, firstly, the question of jurisdiction was neither raised by the Appellate Court itself nor by the respondent ; that the petitioner approached the learned District Judge with the bona fide belief that the appeal lay in the said Court. He further sub mitted that the counsel for the petitioner was misled by the amount awarded by the arbitrator which amount was within the pecuniary jurisdiction of the learned District Judge and as there was no decided case on the question of forum of appeal, the revision be treated as appeal and the time spent in the lower Court in pursuing the appeal in a bona fide manner may be condoned on the basis of the provision contained in section 14 of the Limitation Act. He further submitted that considering the justness of the case and to do justice to the parties, this case is fit for exercise of revisional jurisdiction so mow.
I am inclined to agree with the submissions of the learned counsel for the petitioner. Firstly, the respondent cannot now be allowed to raise objection as to the pecuniary jurisdiction of the learned Additional District Judge for the first time in this Court and, secondly, the question o jurisdiction and the forum of appeal was not free from doubt. Both the learned counsel were not able to cite any judgment in support of their respective pleas.
9. Even otherwise, the revision can be treated as an appeal and the time bona fide and in good faith spent in pursuing the remedy before the Additional District Judge can be condoned by invoking the provisions of section 14 of the Limitation Act. Moreover, in the circumstances of the present case, there is ample justification for seeking interference of this Court in exercise of suo motu revisional jurisdiction. Reference may be made this connection to the view taken in Gunendralal ,Das Chowdhury v. Nitandralal Das Chowdhury.
10. Coming to the merits of the case, the first thing to be noted is that neither the reference nor the proceedings held by the arbitrators nor the document appointing the three arbitrators allegedly submitted to the Martial Law Authorities is available on record. Moreover, the petitioner himself could not produce his evidence as his evidence was closed by the trial Court vide order dated 6th November, 1979. The learned trial Court was legally not justified in closing the evidence of the petitioner. The issues in the case were framed on 27th October, 1979 and parties were directed to submit the list of witnesses within seven days. The case was adjourned to 6th November, 1979 for verification of service etc. Of the witnesses, and on neither this date the evidence of the petitioner was closed as neither the list of witnesses had been filed not any explanation was given for the said failure. The list of witnesses later filed was, however, rejected vide order dated 10th June, 1980 and then vide order dated 21st June, 1980 the matter was adjourned to 24th July, 1980 for recording the statement of the petitioner. On this date, the respondent submitted an application of which notice was given to the petitioner and the matter adjourned to 1st September, 1980. Thereafter, proceedings were taken on certain dates and ultimately without recording the statement of the petitioner, the award was made rule of the Court. It is apparent from above that the evidence of the petitioner was closed on account of mere non-submission of list of witnesses within the prescribed period. Even the statement of the petitioner was not recorded though once the matter was fixed for the said purpose. The law on the point has been settled by the Full Bench decision in the case of Ghulam Murtaza v. Muhammad Ilyas and others (1) wherein it was held that, "The list is, therefore, imperative for summoning of the witnesses by the parties, and in the exercise of discretion vested in them for condoning the delay for good cause under this rule the Courts should exercise the power benevolently. But there is hardly anything which has taken away the right of the parties to produce witnesses in Court of their own and refusal of the Court to record the statements of witnesses in attendance. The irresistible conclusion, therefore, would be that the parties will have to comply with the amended rule 1 of Order XVI if they desire to produce their witnesses under the authority of the Court, but they cannot be stopped from producing evidence in Court on the day fixed for evidence". Thus, the learned trial Court acted illegally in closing the evidence on account of non-submission of the list. By non-submission of the list, the petitioner at best had lost his right to have the witnesses summoned under the authority of the Court but he could not be stopped from producing evidence in Court on a date which was yet to be fixed for recording evidence. This aspect of the matter was also not gone into by the appellate Court. This alone is sufficient for setting aside the judgments of both the learned Courts below :-
10. The objection that the award submitted can at best be treated as award of one arbitrator, namely, Lt.-Col. Sulaiman Khan alone and, as such, is of no legal validity, was not gone into. Again, no determination of the question whether in fact the parties had named two persons as arbitrators or three, was made despite the fact that there was neither arbitration clause in the contract indicating the appointment of three arbitrators nor there was any document of reference. Even the statement of respondent was not recorded which might have indicated as to how the reference was made to three arbitrators. In case the three arbitrators were nominated freely and duly by the5 parties, then the question whether the award as made is bad in law, would naturally arise. At this stage, attention may be invited to the provisions of section 19(2) of the Arbitration Act, which provides that whey an arbitration agreement provides that a reference shall be to three arbitrators to be appointed otherwise than as mentioned in subsection (1), the award of the majority shall, unless the arbitration agreement otherwise provides, prevail. In this case, Mukammal Shah did not join the other arbitrators in making the award while Mushtaq Butt, the other arbitrator, has not expressed his agreement with all the findings given by the third arbitrator, namely, Lt.-Col. Sulaiman Khan. Mushtaq Butt in the note that he appended on the award, wrote as under :- "(1) I agree apparently with the details of work done.
(2) The contract should be terminated immediately because contractor has practically produced no progress after the amendment to R original contract dated 16th January, 1978 as modified by revised contract dated 25th September, 1979 only work worth mentioning was P. C. C. Topping upon the R. B. C. Slab and front verendah shade."
' It is apparent from the above that he did not give any finding as to the amount payable as was done by the other arbitrator. It is rather distressing that both the learned Courts below failed to take note of all these matters despite objections taken. Even the issues properly arising out of the pleadings were not framed. It is, therefore, apparent that both the learned Courts below acted illegally and with material irregularity in making the award rule of the Court. The above-noted objections can best be resolved by framing proper issues and by allowing the parties to lead evidence as presently even the document under which the parties allegedly appointed the three arbitrators as well as the document making the reference, what to say of the record of proceedings of the arbitration arc not available on the record.
12. The net result of the above discussion is that this petition succeeds, the impugned order dated 13th November, 1980 making the award rule of the Court and the judgment dated 11th April, 1981 passed in appeal are, hereby set aside. The matter shall stand remitted to the trial Court for decision in accordance with law after providing sufficient opportunity to the parties to lead evidence. The respondent shall also bear the costs of this petition. 18 C W N 867 PLD 1958 Lah. 44 AIR 1949 All. 360 1969 D L C 49 PLD 1980 Lah. 495