' This appeal arises out of an order made by the Senior Civil Judge Quetta, on 20h October, 1982 whereby he has restrained the appellant from raising construction over a plot of land situated at the extension of Lytton Road Quetta. The facts of the case are that the respondents had filed a suit for partition of ancestral property against the present appellant, During the pendency of the suit of parties entered into an agree-mint of refer the dispute to Arbitration. The arbitration proceedings are pending and so far reference has not been superseded. The respondents had made an application for issue of temporary injunction under Order XXXIX, rules 1 and 2 read with section 151, C.P.C. It was stated in the application that the appellant had been in possession of the plot Bering Khasra No, 1761/516 on which he had started raising construction. This plot is shown as estate of the deceased Arbab Muhammad Umar to which succession is claimed by the plaintiff/respondents.
The trial Court issued a temporary injunction in the exercise of powers vested in it under section 41, clause (b) of the Arbitration Act.
2. The contention of the counsel of the appellant is that the Court becomes functus officio after reference of the dispute to arbitration, while on the other hand contention of the counsel of the respondent was that the appeal itself is not competent. Before considering the arguments of the counsel of the appellant it would be proper to consider the competency of the appeal. To find out as to whether the appeal is competent it will be necessary to ascertain the jurisdiction of the trial Court.
3. The counsel of the appellant has filed this appeal under section 104 read with Order XLIII, rule 1, C.P.C. The trial Court has exercised its jurisdiction under section 41 of the Arbitration Act and not under order XXXIX, rule 1, C.P.C. If an injunction is issued by a civil Court under Order XXXIX, rule 1, C.P.C. An appeal would be competent under section 104, C.P.C. Read with Order LXIII, rule 1, C.P.C. As soon as A reference is made to Arbitrators in a pending suit the trial Court becomes functus officio and cannot deal with such matter in the suit except as provided under the Arbitration Act. Section 23 (2) reads : " 23(2) Where a matter is referred to arbitration, the Court shall not save in the manner and to the extent provided in this Act, deal with such matter in the suit."
The jurisdiction of the Court is taken away to deal such matters in, suit meaning thereby that the Court cannot make any order or adjudication touching the merits of the subject-matter of the suit.
This provision of law has two aspects. One is that the Court retains the power to deal B with such matter as permitted by the Act and the second aspect is that while dealing with such matter it cannot make any order which can directly or indirectly is related to the adjudication of any aspect of the suit or merits of the case. The Act provides procedure and powers of the Court with reference to Arbitration proceedings in section 41 which is reproduced below : "41. Procedure and powers of Court.-Subject to, the provisions of this Act and of rules made thereunder :
(a) the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court, and to all appeals, under this Act, and
(b) the Court shall have, for the purpose of, and in relation to, arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court : ' Provided that nothing in clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters."
' It will be seen that by section 41 (a), provisions of the Code of Civil Procedure are made applicable to all proceedings before the Court and to all appeals under the Act. Clause (a) of section 41 of the Act deals with proceedings before the Court while clause (b) deals with powers of the Court in relation to arbitration proceedings. Clause (a) deals with the applicability of the Civil Procedure Code before reference or after filing of the award and is in relation to proceedings pending before the Court. It will mean proceedings are pending before the Court before reference is made and after the award is filed by the arbitrators. It will have no application to proceedings where reference has already been made. It, therefore, follows that provisions of the Code of Civil Procedure can not be resorted to by the Court when reference has already been made. Section 23(2) and section 41 of the Act are to be read together and there will not be any difficulty in finding the true import of section 41 (a) of the Act. The Court in which the suit was pending and who has referred the disputed to arbitration can act only under the provision of the Act according to/ section 23(2) and pass those orders which are permitted by the Act.
4. When reference is made to Arbitration under the Act the Court cannot deal with the subject- matter of the suit in any manner as it jurisdiction is ousted under section 23 (2) of the Act. This ouster of jurisdiction is to the extent provided thereunder. This means that the Court retains certain powers in spite of reference to Arbitration and these powers include the powers to issue an injunction, appointment of receive as indicated in the Second Schedule. The counsel of the appellant had urged that these powers could be exercised by the Court before reference. E The arguments has no force as in that case the provisions of section 23(2) and that of section 41 (b) would have become redundant to the extent they give authority to the Court to deal with the matter in such manner as provided in the Act. The Court cannot pass any order with reference to the subject-matter of the dispute but can make order of interim nature. Schedule II shows that the Court can pass orders for the preservation, interim custody or sale of any good which are subject- matter of the reference. It reads as under :- "1. The preservation, interim custody or sale of any goods which are the subject-matter of the reference.
(2) Securing the amount in difference in the reference. #TBS (3) #TBE ' The detention, preservation or inspection of any property or thing which is the subject of the reference or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon or into any land or building in the possession of any party to the reference, or authorising any samples to be taken, or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence.
(4) Interim injunction or the appointment of a receiver.
(5) The appointment of a guardian for a minor or person of un' sound mind for the purposes of arbitration proceedings."
' The counsel of the appellant relied upon the case of Budh Sen and others v. Nanak Chand and another (I) where it was held: "Once the case has been referred by the parties to arbitration, it is removed from the jurisdiction of the Court except where Schedule 2, C.P.C. Brings that jurisdiction again into force : 33 All. 743, Rel.
On."
There is no dispute with this proposition. Moreover, this case deals with the law of arbitration before coming into force of the Act of 1940. As far as trial of the case is concerned the jurisdiction of the Court is taken away once reference is made. Court assumes jurisdiction when the Arbitration is superseded, or the award is filed. This jurisdiction relates p to the subject-matter of the suit or the reference as the case may be. In suitable cases it is the duty of the Court to pass order of interim nature for the custody, preservation or protection of the property of subject-matter of the reference. The words "subject-matter of the reference" used in paragraph (I) of Schedule II of the Act are indicative of the stage when such powers could be exercised. The term "subject-matter of reference" should mean in the context, the stage when reference to arbitration has already been made and before the award is filed. As long as reference is not made clause (a) of section 41 applies and after reference is made Court can exercise powers under section 41 (b) of the Act. If a situation arises before reference to warrant action of interim nature Court can exercise those powers under the Code of Civil Procedure. The words "subject-matter of reference" would not have been there if it was intended that these powers were to be exercised before reference. The use of these words in clause (b) means that reference has already been made and person has been made to secure that property involved is not disposed of, alienated or damaged during arbitration proceedings. According to section 41 (a) of the Act, Code of Civil Procedure, 1908 applies to all proceedings before the Court and to all appeals under this Act. It the Courts could exercise powers under Order XXXIX, C.P.C. Then clause (b) of section 41 would be redundant. Clause (a) applies to cases where reference has not been made while clause (b) covers the cases in relation to arbitration proceedings including orders in respect of and in relation to the custody or preservation of the property and to orders of interim nature as detailed in Schedule Second of the Act. A civil Court has no powers to issue interim injunction under Order XXXIX, rules 1 and 2, C.P.C. After reference of the dispute to Arbitration has been made, under section 21 of the Act. But it has ample powers to make interim or interlocutary orders in respect of the subject-matter of temporary nature under G section 41(b) of the Act, It cannot pass any order regarding the subject-matter of the suit which touches the proceedings of arbitration or has any relation to the pith of the case pending arbitration. Similar question had arisen in the case of Sha Vaktavarmal Seshmull v. Shah Nainmull Umaji & Co. (2) The view taken was that : "The second Schedule, which is incorporated into the provisions of clause (b) of section 41 contains five items. This is purely to prevent a party to the arbitration proceedings secreting the properties pending arbitration proceedings and defeat any award that may be passed therein."
(I) AIR 1932 Ouch 151 (2) AIR 1962 Med. 436 ' The counsel of the respondent referred to the case of ChetasingBagasing v. Gulibai and others (1) where it was held : "The Court is competent to appoint a Receiver in the interval between the submission of an award and the final acceptance or rejection of it and also where an arbitrator is proceeding with a reference."
Considering all the aspects of the case and the law cited I have doubt in my mind that the Court can exercise a jurisdiction in respect of the subject-matter of reference to the extent provided in the Act and pass interim orders to preserve or to protect the property involved.
5. After arriving at the conclusion that the Court has not acted under Order XXXIX, rule 1, C.P.C. Or section 151, C.P.C. And has exercised a jurisdiction vested in it under section 41 (b) of the Arbitration Act it is abundantly clear that the appeal would not be competent under section 104 read with Order LXIII, rule 1 C.P.C. Provisions of the Arbitration Act would apply to appeals where order is made under any of the provisions of the Act. Section 39 of the Act is reproduced below.: "39. Appealable orders.-(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order ' An order-
(i) superseding an arbitration ;
(ii) on an award stated in the form of a special case ;
(iii) modifying or correcting an award ;
(iv) filing or refusing to file an arbitration agreement ;
(v) staying or refusing to stay legal proceedings where there is an arbitration agreement ;
(vi) setting aside or refusing to set aside an award : ' Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court.
(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court"
This will show the extent of right of appeal given to the parties. The appeals lie against the orders specified herein and not against any other order or all orders. Since the order is not of the nature as is specified in under section 39 of the Act the appeal is not competent. Same view was taken in case of Messrs M.A. Aziz & Sons v. Lt.-Col. M. Daud Khan and others (2). The property or legality of the order can however be examined under section 115, C.P.C.
6. The respondents have filed a suit for partition and they claim their share in the property left by Arbab Muhammad Umar including the plot on which the appellant is raising the construction. The appellant is
(1) AIR 1925 Sind 102 (2) PLD 1968 Lab. 847 raising construction on the undivided property left by Arbab Muhammad Umar, in which the plaintiff/respondents have claimed a share. During the course of arguments the counsel of the appellant urged that the appellant bad acquired title by adverse possession but this case was not put up in the written statement or in the reply to the notice given telegraphically. The copy of the replies given by the appellant have been placed on record by the respondent's counsel in which the appellant has denied the claim of the respondents on the basis of Riwaj. The respondents bad put up a prima fade case which requires adjudication. Construction of shops on the joint property is likely to prejudice the respondents and create complications and possibly confuse the issues and give rise to further litigation. If the shops are not transferred by way of lease by the appellant, the object of completing the construction would be defeated and construction would be purposeless. The counsel of the appellant contended that in case the portion of the plot on which shops are being constructed falls to the lot of the respondents, the appellant would not claim any compensation in that behalf but there is no answer as to why the construction should be raised at all. Even what the counsel says be true yet he has not given any cogent reason or necessity of raising the construction. There is no answer to the question as to why he is raising the construction at all. He urged that shops which are leased to tenants' can be vacated by process of law. If he is allowed to do what he is doing there will be another chain of litigation. He has not been able to give any plausible explanation of his conduct in creating all this confusion by raising construction on a disputed portion of plot. The balance of convenience lies in favour of the respondents and the unnecessary complication and future legal proceedings can be avoided if no construction is raised. The Senior Civil Judge has rightly exercised the discretion in favour of the respondents and I do not find any reason to interfere. The appeal is, therefore, dismissed.