' The facts, are, that the Consortium of Progressive Consultants, respondent No, 2 herein, in early 1973, entered into an agreement, with the Provincial Government, for construction of certain multistoried flats, in Chak No, 213/R.B., Faisalabad. Clause 25-A of the agreement provided, that the disputes arising between the parties, would be decided through arbitration. The Officer on Special Duty, Government of Punjab, Housing and Physical Planning Department, was the sole arbitrator named therein. It appears that while the project, was, under construction, the respondents demanded escalation of rates, but the Government did not accede to their demand wholly and farther declined to make reference to the arbitrator. Thereupon, respondent No 2 filed an application, under section 8 of the Arbitration Act, but it was rejected, by the learned trial-Court on 25-11-1975, on the ground that the Consortium being not a legal entity, was, incompetent to sue.
This, was, followed by another similar application, brought by respondents Nos. 2 and 3 jointly.
During the course of its hearing, as is evident from Annexure 'C' to the writ petition, the parties entered into an agreement, dated 30-10-1977, whereby the respondents had to withdraw their application, which was described therein as a suit, and Mr. Saeed Hassan Zaidi, Director Housing and Physical Planning Circle, Bahawalpur, was, appointed as an arbitrator to adjudicate upon their claims, if any, against the department. Acting upon this agreement, the respondents withdrew their application. The order passed by the learned Senior Civil Judge, in this behalf is, dated 5-11-1977.
2. It is admitted by both the sides that in pursuance of the agreement aforesaid, the respondents made a reference to Mr. Saeed Hassan Zaidi, who in the first instance, refused to proceed with the reference, on account of the objection raised by the department, but later on inform'd the parties that he was unable to act as an arbitrator, due to personal reasons. It was thereafter that the respondents filed a fresh application under section 8, praying that since the named arbitrator had declined to act as arbitrator, some retired senior Engineer, of any Government Department, be appointed as arbitrator to decide the disputes subsisting between the parties.
3. This application was dismissed by the learned Senior Civil Judge by his order, dated 4-10-1981. He took the view, that the agreement (Annexure 'C') was, in the nature of a compromise deed, under which the respondents withdrew their previous application unconditionally and that in any case, only the person named in the deed, could decide their dispute; by his refusal to act as arbitrator, the agreement itself stood frustrated and, therefore, the Court bad no power to supply the vacancy.
4. The respondents then invoked the revisional jurisdiction of the learned District Judge, under section 115, C. P. C. The petitioners opposed the maintainability of the revision petition and raised the plea that the District Court, lacked pecuniary jurisdiction. This objection was founded on section 2(c) of the Arbitration Act, under which, they contended, that the value of the subject-matter of the reference, furnished the basis for determining the pecuniary jurisdiction of the Court, and as such value exceeded Rs, 50,000, the District Court, was not competent to hear the revision.
5. This argument was repelled by the learned District Judge. In his opinion, rule 6 of the Rules framed under the Suits Valuation Act, 1897, providing a mode for fixing the value of the application, under the Arbitration Act, enumerates only applications under sections 21 and 31, which alone need to be valued in accordance with the subject-matter of the property in dispute. He held that by the process of elimination, an application under section 8, could not be treated at par with the applications under sections 21 and 31 of the same Act. He also referred to the schedule to the Rules framed under the Suits Valuation Act, which lays down that the applications and petitions falling under Articles 1 and 3 of the Court Fees Act, do not require any jurisdictional value. He maintained that there was no cogent reason to exclude an application under section 8, from the purview of the miscellaneous applications for which no jurisdictional value was necessary. He, however, reversed the trial Court's findings, that the vacancy occurring, due to Mr. Saeed Zaidi's refusal to act as arbitrator, could not be filled in, and observed that an arbitrator could be appointed in his place by the Court. He, thus, accepted the revision petition and remanded the case to the lower Court with the direction to supply the vacancy of the arbitrator who would be required to proceed with the reference. The order dated 1-9-1982 passed by the learned District Judge in this behalf, has been called in question through this writ petition.
6. The question of law, falling for determination in this writ petition, is, as to whether or not, the bearing of the revision petition, was within the competence of the learned District Judge. In this connection Kh. Muhammad Akram, Advocate, the learned counsel for the petitioners strenuously argued that the value of the application, for jurisdictional purposes, would tix the Court, competent to dispose it off and also for hearing the revision. He referred to section 2(c) of the. Arbitration Act, which defiges the Court's competent to hear the matters under the Act, in the following terms :- " '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."
Thus, according to him, only that Court would have jurisdiction to bear such an application which could competently decide the suit, if the subject-matter of the reference, had been the subject- matter of the suit. He urged that in the instant case the subject-matter of the reference constituted the respondents' claim for payment, on account of escalation, which acceded much beyond Rs, 50,000. Resultantly, in the submission of the learned counsel, in such a case, a revision from an order of the trial Court, is competent before the High Court and not before the District Court. He heavily relied upon M. A. Jaleel v. Sa1ah-ud-Din (1). In that case, in the course of discussion on the issue regarding forum, before whom an appeal, from the orders passed by the trial Court, making an award rule of the Court, was competent, the learned Judge observed that the applications, under sections 5, 8 and 9 of the Arbitration Act, are maintainable before a Court, which is possessed of the jurisdiction to entertain and decide the suit with respect to the subject-matter of the reference.
7. In reply to these arguments Mr. A. K. Dogar, Advocate, who appeared on behalf of the respondents, supported the reasoning which impressed 'the learned District Judge. He submitted that section 2(c) is relevant only for ascertaining the original forum before whom the action may competently be commenced. According to him the expression 'limit of appellate jurisdiction" figuring in section 115(2), is, to be construed in the light of section of the Civil Courts Ordinance, 1962.
It ordains, when the "value" of the original suit in which the decree or order has been made, does not exceed Rs, 50,000, the appeal lies to the District Judge. For connotation of the word "value" he referred to clause (h) of section 2 of the Ordinance.
8. Under section 115, C. P. C., both the High Court and the District Court, can exercise revisional jurisdiction. There is, however, a limitation on the exercise of such jurisdiction by the latter. It can exercise revisional jurisdiction, only in those cases, wherein the value of the subject-matter, does not exceed its appellate jurisdiction. The appellate jurisdiction is regulate by section 18 of the West Pakistan Civil Courts Ordinance, 1962. It has already been stated, that under this section, if the "value': of the original suit is not more than Rs, 50,000, the appeal from the judgment and deer passed therein, lies to the District Court and in other cases to High Court. As pointed out by the learned counsel for the respondents, the term "value" has been defined in section 2(h) of the Ordinance, which reads as follows:--- "Value" used with reference to suit means the amount or value of the subject-matter of the suit."
Under section 2(c) of the Arbitration Act, a "reference" is to be considered as identical to a suit, and the amount or value of the subject-matter of the "reference" furnishes the basis for fixation of the forum, for hearing the application. Further, there being no other provision for determining the jurisdictional value, for the purposes of the appeal, under section 18, such value, shall enure, for ascertainment of the forum of the appeal as well; on {{FOOT NOTE}}
(1) 1983 CLC 1685 {{FOOT NOTE}} ' the footing whereof, the forum competent to hear the revision, can decided. The view, that the value of the subject-matter of the application determines the forum of appeal, also finds support from the precedent cite by the learned counsel for the petitioners. - 9. It, may be added, that by the term "reference" as defined in section 2(e), is, meant the submission of a particular dispute to an arbitrator, under the arbitration agreement. The assertion of a right by one party and its denial by the other, constitutes a dispute. Obviously, in the instant case, the demand, for payment at the enhanced rates is the real dispute between the parties. It, thus, follows that the amount claimed by the respondents, under the "reference" would be the deciding factor, for ascertaining whether the revision lies before the District Court or the High Court.
It cannot be refuted that in the estimation of the respondents, the amount due to them, from the petitioners exceeds far beyond Rs, 50,000.
10. It is idle on the part of the respondents' learned counsel, to stress that section 2(c) is relevant only for the determination of the forum, competent to take cognizance of the original cause. This contention hardly improves their case, for, the value put on the subject-matter, involved in the application, as already observed, by virtue of section 18, fixes the limit of the appellate jurisdiction which prescribes the limit of the revisional jurisdiction. If such value is; more than Rs, 50,000 evidently the appeal would lie before the High Court and consequently, the revision too would be competent before the High Court only.
11. It, therefore, has got to be seen that what amount or the value of the subject-matter of the application has been declared therein. Before proceeding further, it may be mentioned, that under section 44 of the Arbit ration Act, Rules have been framed by the High Court. Rule 4 of these rule provides, that apart from complying with other requirements, all applications under the Arbitration Act, must Contain a statement in a summary form: "of facts showing that the Court to which the application is presented has jurisdiction. "
Since the Court's jurisdiction is territorial as well as pecuniary, when this rule speaks of jurisdiction, it is reasonable, to presume, that jurisdiction of both the types is, intended to be covered thereby However, from the perusal of the available record, I find that the application in question, does not contain any averment, regarding the pecuniary jurisdiction of the Court, though the facts attracting the territorial jurisdiction of the Court, at Lahor have been disclosed.
12. The explanation offered by the respondents' learned counsel, for this omission, is, that it is merely a miscellaneous application under which the Court has only been requested to supply the vacancy created by the refusal of the previous arbitrator to proceed with the reference. Being a miscellaneous application, he submitted, it, was not incumbent upon the respondents, to fix its pecuniary value. He argued that the "value" of the subject-matter of the suit, as envisaged by clause (h) of section 2 ibid, has to be determined in accordance with the provisions of the Suits Valuation Act, and the Rules framed thereunder and referred to Mumtaz Begum v. Ch. Zulfiqar Ali (I), to supplement his submissions. He further relied upon rule 6 of the Rules, framed by, the High Court, under section 9 of the Suits Valuation Act, which is reproduced below "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 {{FOOT NOTE}}
(1) PLD 1960 Lab. 1088 {{FOOT NOTE}} ' 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, 1870, as determined by that 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.
13. On the strength of this Rule, the learned counsel endeavoured to build a fairly spacious argument and urged that the legislature directed its attention to the applications under the Arbitration Act, requiring valuation in accordance with the market-value of the subject-matter thereof and enumerated only those which fell under sections 20 and 31 of the Act. The presumption, thus, would be that the applications of the categories other than the aforesaid, are not required to be valued on the basis of amount of the subject-matter thereof.
14. In the same sequel the learned counsel referred to the Schedule forming part of the said Rules.
The precise entry anchoring his contention, is as under :- {{TABLE}} 1 2 3 4 5 Court Fees Act. Nature of Value for Suit Valu- Value for Suit. Court-fee ation Act purposes purposes.
And Rules of juris- diction. Schedule 11, M iscella- As fixed in No juris- Articles 1, 13 neous appli- each case. Diction cations and value petitions. Necessary. {{TABLE}} ' In the submission of the learned counsel, since for fixation of the jurisdictional value, one has to consult Suits Valuation Act, and the rules made there under, but the relevant entry in the schedule does not catre for the determination of the jurisdictional value, for miscellaneous applications, therefore, the respondents omission to declare the jurisdictional value in the application under section 8, is not open to any 'exception.
14. I am not inclined to accept these arguments for more than on reason. The word "Court" has been defined in the Act itself and a particular meaning given to it. Since there is no indication, that in section 8 this word has been used, to convey a different sense, the interpretation clause, cannot be ignored and some measure other than the amount or the value of the subject-matter of the application, adopted for finding out the forum vested with the power to hear the same It is moreso for another reason, that clause (c) o section 2 uses the word "means" which in contra-distinction to the word "includes" reflects that the definition is hard and fast and no other meaning can be assigned to the word "Court" than the one given in the definition clause.
15. It is noteworthy that the Suits Valuation Act and its rules are] silent about the jurisdictional value of an application under section 8. It is only because of the generality of the rule, embodied in the maxim unis est exclusto altertous that by implication, an intention is sought to be inferred, that the applications other than those, mentioned in rule 6, are, not to valued in accordance with the market value of the property in dispute. This rule, which has often been held as not of universal applicability, cannot be applied to the case in hand. Even otherwise, it can co-exist with the provision of section 2(c), which obliges the computation of the amount of the subject-matter of the reference, according to the market value thereof. The learned District Judge did not advert to this aspect of the case. As regards 0 precedent cited by the learned counsel, it is distinguishable. It deals with a pre-emption case and for such a suit, court-fee is governed by Court Fees Act, and the jurisdictional value by the rules expressly framed under section 3 of the Suits Valuation Act.
16. Articles Nos. 1 and 13 of the Schedule to which reference has been invited by Mr. Dogar, include applications and petitions under statutes and do not specify the applications riled under the provisions of the Arbitration Act. Conceivably, the argument, rested on the entry in the Schedule, therefore, cannot render any help to the respondents and the learned District Judge clearly tell in error relying upon this entry. Likewise, the argument that the application in question, being a miscellaneous application does not require jurisdictional value, is, also not tenable. As would be evident, from the foregoing discussion, section 2(c) read with rule 4, enjoins that the value of the subject-matter of the application, for the purposes of pecuniary jurisdiction of the Court, must be mentioned therein. I have noticed that unfortunately, the subordinate Courts do not insist upon strict compliance of a this rule. Resultantly, from the point of view of pecuniary jurisdiction, not unsoften, a confusion abounds when the matter is listed before the appellate or the revisional Court.
17. On behalf of the respondents, it has been lastly urged that even if, section 2(c) of the Arbitration Act, is attracted to the exclusion of the Suits Vaulation Act, the term "subject-matter" does not necessarily imply the value . Of the property in suit and in certain cases it is confined to the relief claimed therein. Reliance has been placed on Karamat Ullah v. Government of West Pakistan (1), to support this proposition. It is contended that since in the application under section 8 the only relief sought, is, the filling in of the vacancy created, due to the arbitrator's refusal to act, the value of the respondents' claim, requiring adjudication by the arbitrator, is not relevant, for determination of its jurisdictional value.
18. The precedent aforesaid relates to a case in which the retirement from service of the petitioners therein, was, declared as without lawful authority, in exercise of the constitutional jurisdiction of the High Court. The Government intended to file an appeal to the Supreme Court, and moved the High Court under section 151, C. P. C. For suspension of the implementation of its orders. The High Court maintained, that the grant of interim relief, was, controlled by the provisions of Order XLV, rule 13, C.
P. C., and therefore, the application under section 151, C. P. C. Did not lie. In repelling the Government Contention the Court observed that there, was no order capable of being executed and further added "that a cause of action in a suit can also be treated as subject-matter within the meaning of clause (d) of rule 13 of Order XLV. These observations are qualified by the facts of the petition before the Court, and have no bearing on the case in hand. In view of the clear cut language of section 2(c) and rule 4, irrespective of the relief claimed by the respondents, the value of the subject-matter of the {{FOOT NOTE}}
(1) PLD 1967 Lab. 171 {{FOOT NOTE}} "reference" is the test for discovering as to whether the revision lies before the District Court or the High Court. When judged in the light of this test, I am not left in any manner of doubt that the revision, was, competent only before the High Court and the assumption of jurisdiction by the learn District Judge, was, without lawful authority.
19. So far as the jurisdictional issue is concerned, the deck stands cleared. It may be observed that both the parties addressed the Court, on merits also, on the point as to whether or not filling in of the vacancy of the nominated arbitrator, was, envisaged by the agreement, dated 30-.0-1977 but in view of the order 1 propose to pass it is unnecessary for me to decide this controversy in this petition.
20, For the foregoing reasons this writ petition is accepted and the impugned order declared to have been passed without lawful authority. This order, however, shall not debar the respondents from moving the learned District Judge, in accordance with law, that the memorandum of revision may be returned to them, for presentation before the proper Court. The parties are left to bear their own costs.