In this Revision Application the applicant seeks to set aside the judgment of the learned Civil Judge, Quetta dated 3rd November 1967 by which the learned Civil Judge had decreed an award in the sum of Rs, 2,197.87 against the applicant. According to the said judgment, on 25th August 1965, the applicant and the second respondent had entered into a written agreement to settle their disputes by arbitration and the first respondent and one Abdul Karim Khan deceased were the arbitrators. In due course, the arbitrators gave their award against the applicant and in favour of the second respondent, as stated, and on 15th December 1965, the first respondent filed the usual application under section 14 of the Arbitration Act, 1940 to make the award the rule of the Court. The Court then sent summons of the proceedings to the applicant and to the second respondent, but the summons was on the usual form of a suit. Thereafter, both the applicant and the second respondent filed what they both described as their written statements, and whilst the second respondent supported the award, the applicant challenged it on several grounds. For the purpose of this application it is material to state that the applicant submitted in his written statement that the award was understamped and could not therefore be decreed. He further denied having signed the reference to arbitration dated 25th August 1965, and also submitted that the signature of Abdul Karim Khan on the so-called award had been forged. The second respondent filed a rejoinder to this application in which he submitted that the applicant's objections were time- barred. Then, treating the case before him as if it was a suit, the learned Civil Judge framed an issue as to whether the applicant's objections were time-barred, and he decided the case on the basis of this issue. In his judgment, the learned Civil Judge did not even refer to the applicant's objection that the award was understamped, although it was patently understamped. He merely held that notice of the award had been served on the applicant on 10th February 1966, therefore, he should have put in a reply within 30 days thereafter, but as he did so nearly three months later, the learned Civil Judge decided the issue of limitation against him. The learned Civil Judge further observed that the Court could not even look into the objections filed by the applicant because, instead of filing an application under section 33 of the Arbitra- tion Act, he had filed a written statement. Finally the learned Civil Judge criticised the applicant for not producing evidence in support of his contentions and decreed the award. The applicant thereupon filed a Revision Application which came up for hearing before me on 17th July 1970.
However, as the award was patently understamped, I impounded it and had it forwarded to the Collector for determination of the penalty under section 35 of the Stamp Act. The Collector has determined the penalty which has been paid by the respondent No, 2, and as arguments have been concluded, 1 shall now consider them.
2. Mr. Basharatullah submitted a preliminary legal objection, that the Revision Application was not maintainable because the applicant could have filed an appeal against the order of the learned Civil Judge under section 39 of the Arbitration Act. Appeals under the Arbitration Act lie only in the manner prescribed in this section, and, as according to sub- section (6) an order "setting aside or refusing to set aside an Patel, I award" is appealable, the question is of the meaning of this subsection. In order to appreciate the submissions of learned counsel on this point, it is necessary to refer briefly to the provisions of sections 30 and 33 of the Arbitration Act. Section 30 reads as follows :- "30. An award shall not be set aside except on one or more of the following grounds, namely :- (a)that an arbitrator or umpire has misconducted himself or the proceedings ; (b)that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35 ; (c)that an award has been improperly procured or is otherwise invalid."
On the other hand, section 33 prescribes that a person "desiring to challenge the existence or validity of an arbitration agreement or an award shall apply to the Court " As in the instant case, the applicant challenges the agreement to arbitration on the ground that he had never signed it, Mr. Mirza submitted that his application fell under section 33, and that it was not an application to set aside an award, therefore, the impugned order could not be treated as an order refusing to set aside an award within the meaning of section 39(vi). On the other hand, Mr. Basharatullah submitted that even though the applicant challenged the existence of the arbitration agree-ment, he was nonetheless seeking an order under section 30 to set aside the award, therefore, his case fell under section 39(vi). This very point was considered by the Supreme Court in Messrs Badri Narayan Agarsvala v. Messrs Pak Jute Balers Ltd. and in holding that an application to reset an award; on the ground that the applicant had not signed the reference to arbitration fell under subsection (c) of section 30. Sattar, J., who delivered the judgment of the Court observed at page 50: "In setting aside the agreement, after an award has been made on its basis, the Court sets aside the award also and such a power is referable to section 30 (of the Arbitration Act), in view of the express provision "otherwise invalid" contained in clause (c) of section 30."
Mr. Basharatullah's submission that the impugned order was appealable is therefore correct.
3. Mr. Mirza then submitted that even if the impugned order was appealable, as an appeal could only have been filed in the District Court, the applicant was entitled to file a revision in this Court, and in support of this argument learned counsel referred me to a judgment reported in Arts Council of Pakistan v. Riazuddin Pirzada , in which it was held that a revision is barred under section 115, C. P. C. only when the applicant has a right of appeal against the impugned order in the High Court. Applying this principle to the instant case, as the applicant could not have filed an1 2 appeal in this Court, he was clearly entitled to file a revision, and the only question is whether he has made out any grounds for the exercise of this Court's revisional jurisdiction.
6. Mr. Mirza therefore submitted that the trial Court erred in holding that the applicant's objections fell under Article 158 of the Limitation Act and, according to learned counsel, by doing so, it had illegally usurped jurisdiction. But the applicant could challenge the award only by tiling an application to set aside and, as the learned Civil Judge has also observed that there was no application before him because the applicant has filed only a written statement, learned counsel criticised these observations, and it will be convenient to dispose them of first. The view that an application to set aside an award cannot be entertained because it is erroneously described as a , written statement is contrary to reason and to the settled law, and the question is always of the substance of the document before the Court (See Bangarayya v. Rambhadriraju . Further, after the arbitrator had filed the award in the trial Court, the Court should have sent notices to the parties under section 14 of the Arbitration Act. Instead of doing so, it had sent them a summons in Form No, 2 of Appendix B of the Civil Procedure Code, a form of summons in pursuance of which the parties are expected to file written statements. As the Court had thus itself invited the applicant to file a written statement, it could not penalise him for complying with its own order. But it is not necessary to consider this aspect of the case further because, after his unnecessary criticism of the applicant's conduct, the learned Civil Judge has himself treated the written statement as if it were an application under section 33 of the Arbitration Act, therefore the only point for consideration is whether, as contended by Mr. Mirza, the learned Judge erred in holding that the application was time-barred.
7. According to the learned Civil Judge, the application was time-barred because it fell under Article 158 of the Limitation Act, whilst, according to learned counsel, the application filed under Article 181. Article 158 prescribes a period of limitation of 30 days and applies to all applications "to set aside an award", whilst Article 181, which is a residual Article, provides a period of limitation of three years. As the applicant has challenged the validity of the reference to arbitration, according to Mr. Mirza, this objection did not amount to an application to set aside an award, therefore it fell under Article 181 and not under Article 158. If this view is correct, it would mean that there are two very different periods, namely, 30 days and three years, for challenging an award filed in Court. The anomalies of such a view have been criticised by Chagla, C. J. in Amritlal Kalidas and others a case on which Mr. Basharatullah relied. However, Mr. Mirza referred me to the judgment of a Dorab Division Bench of the West Pakistan High Court in Messrs Faqir Patel, I Spinning Mills Ltd. v.
Government of West Pakistan and another . In that case a Division Bench of the West Pakistan High Court has disapproved of the view of Chagla, C. J. in Savkur's case and held that an objection challenging the validity of a reference to arbitration does not fall under section 30 of the Arbitration Act but under section 33. This judgment supports Mr. Mirza's argument that objections under section 33 are governed by Article 181, but unfortunately for learned counsel, the view taken by the Division Bench is inconsistent with the judgment of the Supreme Court in Badri Narayan Agarwala v. Messrs Pak Jute Balers Ltd. to which I have referred in para. 2. As I have already explained, the appellant in that case had challenged an award on the same grounds as in the instant case, namely, that he had not signed the reference to arbitration, and their Lordships of the Supreme Court held that the appellant's objections amounted to an application to set aside an award under section 30 of the Arbitration Act. I respectfully follow this view, and as the words "to set aside an award" must be given the same meaning in Article 158 as in section 30, this Article covers applications both under section 30 and section 33. Mr. Mirza's argument is without merit, and on the assumption that the period of limitation had begun running against the applicant, I agree with the view of the, learned Civil Judge that the applicant could challenge the award only within the period prescribed in Article 158.3 4 5
8. Mr. Mirza then advanced an argument which was not only inconsistent with his previous argument, but its only merit was its ingenuity. As I have already observed, both the parties had filed written statements after receipt of the Court's notice of the case, and as no period of limitation is prescribed for filing written statements, Mr. Mirza submitted that, because the applicant had filed a written statement he was not affected by limitation at all. The argument is contrary to the basic principles of the Arbitration Act. According to section 32 of the Act, "no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act." The Act also expressly provides that all objections to an award or to a reference shall be made by means of applications. As applications are generally decided on affidavits and counter-affidavits, without recording evidence, the object of these provi- sions is to provide a speedy and effective method for disposing of arbitration disputes ; therefore, the Act does not envisage the elaborate procedure prescribed under the Civil Procedure Code for regular suits, and there cannot be any question of filing written statements or framing issues in applications under section 30. Further, save in cases of patent illegality, which are not relevant to the instant case, once an award has been filed in Court under section 14, it has to be decreed under section 17 if an application to set it aside has not been filed. If therefore I accept Mr. Mirza's alternative argument that the applicant had filed a written statement and not an application to set aside the award, then, in view of section 17, it would follow that the learned Civil Judge had rightly decreed the award. Far from helping the applicant, the argument is fatal to his application, but learned counsel argued that it was supported by a judgment of the Lahore High Court in Manjhoo Ram v. Finn Girdari Lal and a judgment of the Punjab High Court in Badruddin Hassan v. Amir Begum .
9. In the Lahore High Court case, a learned Single Judge of that Court has merely followed the earlier judgment of the Punjab Chief Court, therefore I need consider only that earlier judgment. In Badruddin Hassan's case, in holding that a written statement containing objections to an award was not governed by Article 158, the learned Judges of the Punjab Chief Court observed at page 523 as follows : "Before we proceed to do so, we have to notice a point which was raised in limine by the learned counsel for the appellant. He contended that the written statements filed by the defendants were in substance applications to set aside the award and argued that as they were lodged in Court more than ten days after the award was produced before the Subordinate Judge they could not be entertained as having been presented beyond the period of limitation laid down in Article 158 of the First Schedule to the Limitation Act (IX of 1908). We cannot accept this argument. In our opinion this Article cannot possibly apply to a written statement which a defendant is required to LI', in answer to an application made for the purpose of having the award made a rule of Court. It is obvious that this rule of limitation cannot be applied because under paragraph 20 (3) of the Second Schedule to the Code of Civil Procedure it is for the Court itself to fix the time within which cause is to be shown against the application."
The observations are unfortunately very brief but, as the view of the learned Judges is based entirely on para. 20 (3) of the Second Schedule (which has now been repealed). I have examined the Second Schedule. Para. 20 of the Second Schedule referred to the filing of awards in Courts and sub-para. 3 read as follows : "The Court shall direct notice to be given to the parties to the arbitration requiring them to show cause within a time specified why the award should not be filed". The words "within a time specified" are significant, and in view of the discretion thus conferred on the Court it was possible to argue that this sub-para. should prevail over Article 158 of the Limitation Act. This was the view taken by the learned Judges of the Punjab Chief Court. I do not have to examine the correctness of this view because the Second Schedule has now been6 7 repealed and section 14 cf the Arbitration Act, which corresponds to para. 20 of the Second Schedule, directs that an award shall be filed in Court, and further prescribes that, after it has been filed "the Court shall thereupon give notice to the parties of the filing of the award". The result of this change in norab the law is that, as the Court no longer has any discretion in Patel, / fixing the period for challenging an award, that period has to be determined exclusively by Article 158, therefore whatever be the position under the Second Schedule, after the coming into force of the Arbitration Act, the judgment of the Punjab Chief Court is not good law and cannot be followed.
10. Finally, Mr. Mirza argued that, although the applicant had misguidedly purported to file an application to challenge the award, limitation had not begun running against him and he was entitled, in the events that had happened, to raise this plea. As I have explained, the Court had failed to send him the statutory notice required under the Act, therefore Mr. Mirza submitted that, as a statute of limitation has to be construed strictly, the period of limitation had never begun running against the applicant. In order to appreciate this argument, I have to repeat here that when an award is filed in Court, section 14 states that "the Court shall thereupon give notice to the parties of the filing of the award". The use of the word "shall" is deliberate, and it is the Court's duty to give full effect to it. Further this provision has to be read with Article 158, according to which, as I have already pointed out, limitation runs only from "the date of service of notice of the filing of the award". As the direction for notice under section 14 is mandatory, on the plain language of the statute, it follows that limitation cannot start running against a person who wishes to object to an award unless and until he has received from the Court the notice prescribed under section 14. As the provision for notice is mandatory, it follow that limitation could not have started running against the applicant in the instant case merely because he was aware of the existence of the award against him. As observed by Thadani, J. in a judgment of the Sind Chief Court in Holaram Vernomal v. Governor-General of India-in-council :- "I do not think, however, that knowledge of the filing of an award acquired in a way other than that laid down by section 14, Arbitration Act, can be deemed to be proper service of a notice of the award. I can conceive of a case in which a party requests an Advocate to enquire if an award has been filed against him and in due course he is informed that an award has been filed against him, whereupon he asks the Advocate to apply for copies. I do not think that the statutory provisions relating to service of a notice of the filing of the award upon a party can be dispensed with because it has been established that a party had notice of the filing of the award in some way or another, although not in accordance with section 14, Arbitration Act."
I may observe here, as pointed out by Mr. Mirza, that the view was taken by the Lahore High Court in Punoo Ram v. Negh Raj and by the Calcutta High Court in Talukdar and others v. Mandal . That has also been the view of other High Courts (See C. Das v. Ganesh Ram and Rangasami v.
Muthusami . I am in respectful agreement with the view which has then been taken by the High Courts of the Sub-Continent for more than 75 years, and in view of the plain language of section 14, I do not think any other view is now possible. The applicant is therefore entitled to argue in this Court that, as he did not receive the statutory notice under the Arbitration Act, limitation has not begun running against him.
11.However, Mr. Basharatullah feebly argued that, as the applicant had received a copy of the award and filed his objections, he was estopped from contending that he had not received the statutory notice. But as an estoppel can arise only when a party alters his position to his detriment on account of the representation of another person, I pointed out to learned counsel that the elements of an estoppel were completely absent in the instant case. Learned counsel thought that the filing of the written statement amounted to a representation by the applicant. I cannot accept this argument because in filing the written statement the applicant had been misguided by the erroneous practice of the trial Court. However, even if I assume for the sake of argument that the8 9 10 11 12 applicant's conduct amounted to a representation, the second respondent did not alter his position on account of this alleged representation, therefore there cannot be any question of estoppel against the applicant.
12.Mr. Basharatullah then submitted that his case was supported by the observations of a Division Bench of the West Pakistan High Court in Mehboob Alam v. Mumtaz Rashid and in particular learned counsel relied on the following observations of the learned Judges at page 607 : "Learned counsel for the appellant urges that as long as there is no notice for filing of the award objections cannot be filed at all. We asked him to refer us to any provision to that effect in the Arbitration Act and he was unable to do so. An application for setting aside the award can no doubt be filed within thirty days of the service of notice of filing of the award, but there is no reason to suppose that even if notice has not yet been formally served, a party cannot put in an application for setting aside the award."
It is clear even from these observations that the question before the Court was a very narrow question, namely, whether the Court could accept objections to an award from a party who had not received notice of the award, and merely because the Court held that a party could thus waive notice of the award, this view does not lend any support whatever to Mr. Basharatullah's argument that the applicant should be deprived of his statutory right to notice of the award merely because he had come to know of it. Additionally, unlike the instant case, the award in the judgment cited had been given by an arbitrator who had been appointed on a reference to arbitration, during the pendency of a suit under Chapter 4 of the Arbitration Act, and on this ground also the judgment cited is distinguishable. I therefore follow with respect the view of the Sind Chief Court and of the other High Courts, to which I have referred, and I hold that, as the applicant had not been served by the Court with the notice prescribed under section 14 of the Arbitration Act, limitation had not commenced running against him, and the trial Court usurped jurisdiction by decreeing the award, therefore its judgment and decree have to be set aside.
13. The Revision is allowed, and the case is remanded to the trial Court so that it may be heard according to law. The trial Court shall send the parties notice of the filing of the award, and if any application to set aside the award is filed, it shall dispose it of according to the provisions of the Arbitration Act. PLD 1970 SC 43 PLD 1969 Kar. 349 AIR 1947 Mad. 315 AIR 1954 Rom. 293 PLD 1970 Kar. 153 AIR 1935 Lah. 951 13 I C 520 AIR 1947 Sind 145 AIR 1930 Lah. 228 AIR 1926 Cal. 1018 I L R 20 All. 474 I L R 11 Mad. 144 PLD 1960 Lab. 601 13 1 2 3 4 5 6 7 8 9 10 11 12 13