' For proper understanding and appreciation of the controversy giving rise to present constitutional petition, narration of facts, so far as relevant, briefly stated are that Mst. Niamat Bibi widow and her son Muhammad Bashir instituted an eviction petition against Nizam Din, their tenant from Property No. V-4-R-88 Gali Bagh Ali, Main Bazar, Kot Murad Khan, Kasur, on ground cf default in paymer.t of rent with effect from the month of May, 1980, causing damage to the property, and their bona fide personal requirements. Eviction petition was vehmer.tly resisted by tenant Nizam Din, through written statemer.t. The controversy raised in the pleadings of the parties was reflected in issues framed by the Rent Controller. Landlady concluded her evidence and then the case was adjourned for the evidence of Nizam Din. However, evidence could not be recorded though more opportunities than one were given to him. However, on 7-6-82, both the parties decided to resolve the controversy subject-matter of eviction petition through one Haji Muhammad Din son of Mian Dasondi. Statements of both the parties were then recorded by Rent Controller. For facility of reference, proceedings conducted on 7-6-82 and statements of the parties are reproduced below:- {{URDU TEXT}} ' On the same date, the Rent Controller who was in seizin of the case, appointed Haji Muhammad Din as " between the parties. Award dated 7-9-82 was filed in Court on 9-9-82. Tenant Nizam Din preferred objection to the award. During the pendency of proceedings, Haji Muhammad Din appeared in Court and made his own statement on 8-3-1983. Rent Controller did not find any merit in the objections and after disallowing them, proceeded to order eviction of the tenant vide his order dated 28-3-82. Appeal preferred by Nizam Din against the eviction order did not succeed and was dismissed by learned Additional District Judge, vide order dated 11-6-84. Both the orders, one passed by Rent Controller and the other by learned Additional District Judge affirming the order of eviction have been assailed in constitutional jurisdiction with prayer to declare them illegal and to have been passed without lawful authority.
2. I have heard learned counsel for the parties and examined the available record. Mr. Iftikhar Ahmad Dar, learned coursel for the petitioner has raised following contentions in support of this constitu tional petition : -
(i) That the matter relating to eviction of the tenant could not have been referred for decision to arbitration, as the same is required by law to be adjudicated upon strictly in accordance with the provisions of the Rent Restriction Ordinance and not otherwise. Ejectment petition, thus, could have been decided under the Ordinance in accordance with its provisions. Reference to any outside agency is clearly opposed to law. The tenant has, therefore, not been afforded reasonatle and adequate opportunity of defending the eviction petition as envisaged by section 13 of Ordinance VI of 1959.
(ii) Assuming but without conceding, if the matter in dispute could be referred to the arbitration, Haji Muhammad Din, an arbitrator has misconducted himself and the proceedings. Award made and filed in the Court was of no legal consequence.
(iii) That Haji Muhammad Din did not act as a referee but as an arbitrator and as such was bound by the provisions of the Arbitration Act, 1940 when conducting proceedings to resolve the controversy.
(iv) That the petitioner had moved a petition for removal of Arbitrator before he entered upon his reference, therefore, his authority to act in either capacity stood revoked and subsequent proceedings and statement made by him in Court are of no legal consequence.
3. On the other hand, learned counsel for the respondents contended that there is no bar either express or implied in the Punjab Urban Rent Restriction Ordinance, 1959 as amended for the parties to get decision of their dispute on the basis of a statement of a third person or on special oath, and since it was the tenant himself who asked for the decision of the eviction petition in accordance with the statement made by Haji Muhammad Din. It was not open to him to contend that the matter in dispute could not be referred to him, particularly, when the statement made by Haji Muhammad Din went against him. Learned counsel further submitted that Haji Muhammad Din was not to act as arbitrator but as a referee. Whole dispute was agreed to be decided in accordance with whatever statement was made by him. Learned counsel thus contended that the parties could lawfully get a decision of their dispute in accordance with the statement of Haji Muhammad Din, a referee under section 20 read with section 31 of Evidence Act. The sum and substance of the submission made by learned counsel for the respondents is that the status of Haji Muhammad Din is that of a referee and not arbitrator. The mere fact that instead of making an oral statement in Court in accordance with reference Haji Muhammad Din got it written on a stamped paper and produced it in Court would not make the slightest difference. It was in the knowledge of the parties that Haji Muhammad Din was thoroughly an illiterate person. Confidence was reposed more in his honesty, impartiality and probity and than on literacy. Both the parties thinking him to be impartial and honest person agreed that whatever statement he made in regard to the matters raised in the eviction petition will be acceptable to them as final and conclusive. Therefore, the writing produced in Court by Haji Muhammad Din cannot be considered to be an award stricto senso. This was a statement in accordance with reference made to him and was binding upon both the parties. Learned counsel for the respondents has further contended that the sole aim of the tenant was to protract and prolong his stay in the tenanted premises through these legal quibbles. He stated that the landlady had concluded her evidence on the issues raised and thereafter the case was adjourned more than once for the evidence of the tenant. Production of evidence was delayed to gain more time. Thereafter he agreed to the decision of the eviction petition in accordance with the statement of Haji Muhammad Din. This suggestion according to learned counsel for the respondents, was made by the tenant himself to which the opposite party also agreed. After whole exercise has been gone through by Haji Muhammad Din, the tenant thought out a device to wriggle out of his moral and legal commitment so that he could have a fresh round of litigation to create further delay. In this view of the matter, learned counsel contended that the petitioner/tenant was not entitled to the grant of discretionary relief for by his conduct as exhibited, he has clearly disentitled himself to the exercise of equitable discretionary relief under constitutional jurisdiction of this Court.
4. Primary question requiring decision in the instant case is about the status and capacity of Haji Muhammad Din Learned counsel for the petitioner described him to be an arbitrator whereas learned counsel for the respondents stated that he acted as a mere referee. On the statements of the parties and the resultant order dated 7-6-1983 of the Rent Controller, he is described as [URDU TEXT]"1/4f:-.47". The intent of the parties however, seems to be that they wanted to rely on his statement as a mere referee and not arbitrator and whatever he stated in that capacity was considered acceptable to them, meaning thereby that eviction petition should be decided on the basis of a statement made by Haji Muhammad Din, a choice of both the parties. It is not the intention of the parties that the matter should be referred to the arbitration of Haji Muhammad Din and that whole of the arbitration procedure should be made applicable to him. In Himanchal Singh v. Jatwar Singh and others AIR 1924 All. 570, the parties had agreed to decide their dispute in accordance with the statement made by a third person. For facility of reference, the settlement arrived at in the above-stated precedent was:- "It has been settled between the parties that Rai Sahib Pandit Gopal Das Sharma, Vakil, shall hear our whole affair and that we shall accept any statement that he may make before the Court."
' The Vakil Rai Sahib Sharma heard the parties and made a statement in Court. The suit was dismissed on the basis of the said statement. In appeal before the High Court, it was contended on behalf of the plaintiff that the statement referred to above, was neither a reference to arbitration nor did it come under the Oaths Act and it was urged that such a statement was not binding on the plaintiff. Dealing with this contention of the plaintiff, the learned Judge observed:- "We are of the opinion that the contention of the plaintiff cannot prevail. The case can be looked at from two points of view. To say the least, the statement being duly signed by the plaintiff as well as his pleader amounted to an agreement that he would be bound by the statement that would be made by the referee. The statement made by the referee was clearly a statement made by a person to whom the parties to the suit had expressly referred for information, in reference to the matter in dispute, and was a statement within the meaning of section 20 of the Inidan Evidence Act. It is true that ordinarily mere admissions are not conclusive as is provided in S.31 but admissions of this kind must be taken to be admissions made in a suit by the nominee of a party thereto. Such admissions, therefore, are as conclusive and effectual as admissions made by the parties in their written or oral pleadings. The effect is to prevent each party from resiling from the statement made by such a nominee.
' It may also be said that the parties really compromised their dispute in this manner, that they agreed that the decree of the Court shall be in accordance with the statement to be made by their nominee hereafter. There is nothing to prevent the parties from compromising the suit and agreeing to a decree being passed in terms to be stated by a person named. Such an agreement, therefore, would be an adjustment of the suit, and it is difficult to see how any party could be allowed to go back on it."
' In the case of Umrai All Khan and others v. Intizami Bagem and others AIR 1939 All. 176, the Court observed:- "Where the parties to a suit agree that a referee should be appointed and the case should be decided according to whatever statement the referee makes, the agreement is not in substance a reference to arbitration. The statement which the referee makes in pursuance of the agreement is an admission under section 20, Evidence Act, and operates as an estoppel against the parties."
' In this case also the parties had agreed to the decision of a case on the statement of a third person. In the case of Umrai Ali Khan and others v. Intizami Bagem and others AIR 1939 All. 176 reliance was placed upon the Full Bench decision in the case of Mst. Akbari Begum v. Rehmat Hussain and others A I It 1933 All.
861. In the latter case, distinction between an arbitrator and a referee was made in the following terms:- "An agreement to abide by the statement of a particular witness is in substance not a reference to arbitration. The essence of arbitration is that the arbitrator decides the case and his award is in the nature of a judgment which is later on incorporated into a decree of the Court. The arbitrator can either proceed on the basis of his own knowledge or make enquiries and take evidence and then give his decision on such evidence. But where parties agree to abide by the statement of a third person or a referee, the referee merely makes a statement according to his knowledge or belief and the Court then decides the case and pronounces its judgment on the basis of such a statement and passes a decree thereon. The referee is not authorized to make inquiries and take evidence, and then announce his decision on the basis of such evidence. He is called upon to make a statement according to his knowledge or belief. In the case of an arbitration, as the arbitrator's award is an expression of an opinion and his procedure resembles that of a Court, a party is entitled to file objection and challenge the validity of the award. The making of a statement by a referee or a third person has no resemblance to a proceeding conducted by him as if he were a Court of law and accordingly there can be no procedure of filing objections as to its validity."
' Where both parties agree to abide by the statement of the referee, the statement of the referee would then be the admission of both the parties binding upon them. No doubt admissions are not conclusive; but where there has been mutuality of this kind and they have matured into an agreement their conclusiveness follows from the principle of estoppel. The parties cannot be allowed to go back upon it and therefore the admission is conclusive as against both, and can be said to operate as an estoppel.
Yet in another case from Allahabad High reported as Suraj Narain Chaube v. Beni Madho Chaube and others AIR 1937 All. 701, a Division Bench of the Court observed: "We think it is obvious however that it was never the intention of the parties that there should be a reference to arbitration under Schedule 2, Civil Procedure Code, their intention was that their nominee should make an inquiry and that they would be bound by whatever statement he might make in Court. As so often happens in such cases, the party whose interests are adversely affected by the statement thus made, has devised a means to trying to avoid the consequences of his solemn under taking. Having given the matter our full consideration, we are of opinion that the agreement of 23rd September, 1935 and the agreement of 14th of October, 1935 and the statement which B. Brij Behari Lal gave in pursuance of the reference thus made to him and by which the parties had covenanted with each other to be bound, was in effect an adjustment of the dispute and that each party is estopped from impugning it and from challenging the statement of the referee."
' In the precedent case, reliance was placed amongst others on Mst. Akbari Begum v. Rehmat Hussain and others also. Similar are the observations made in the case of Partap Talkies Padrauna v. Narain Talkies Distributors and another AIR (38) 1951 Punjab 416. In this case also, the parties had made the following statement:- "Let Mr. Brij Lal, Advocate for the Railway be appointed as referee. He may hear the evidence orally and make a statement. His statement will be binding on the parties. He should hear the evidence today."
' Mr. Brij Lal, Advocate, heard evidence and made a statement in Court in accordance with the reference made to him. Upon the statement so made, judgment followed in favour of the plaintiff.
Dealing with the contention that Mr. Brij Lal, Advocate was an arbitrator and not a referee, Kapur, J. observed:- "From what I can see, it was never the intention of the parties to appoint this gentleman as an arbitrator. Indeed, the case seems to be more in the nature of what happened in Himachal v.
Jatwar AIR (11) All.
570. There it was agreed between the parties that one Rai Sahib Pandit Gopal Dass Sharma, Vakil, should hear the whole affair and then should make a statement which would be binding on the parties. This thing was held by a D.B. to be a really a compromise of the, dispute in that particular manner. The parties, it was held, had agreed that the decree of the Court should be in accordance with the state ment made by the nominee and that there was nothing to prevent the parties from compromising the suit and agreeing to a decree being passed in terms to be stated by a person named. Such an agreement was in the nature of an adjustment of the suit and no party could be allowed to resile from it. The parties in the present case in my opinion really considered this method to be one compromising the dispute rather than going to arbitration."
' In the case of Mushtaq ur Rehman and four others v. Muhammad Akbar and five others 1981 CLC 364, the parties in a suit for declaration had agreed to be bound by the report of a Local Commissioner as final and binding. In terms of the report of the Local Commissioner, the suit was dismissed by the trial court which order was upheld in appeal. Question was further agitated in revision. Dealing with the question as to whether the Naib-Tehsildar was a Local Commissioner and not a Referee, a learned Single Judge of this Court observed:- "As for the contention of the learned counsel for the petitioners that in the present case, the Naib- Tehsildar was just a Local Commissioner and not a referee, I am unable to agree with him. it is the matter of common knowledge that when a Local Commis sioner is appointed under rule 9, Order XXVI, C.P.C. at the request of the parties or otherwise his appointment is mad,: for the purpose of making a local investigation and then giving his finding on the point referred to him. His report is not binding on the parties nor is the Court obliged to decide the dispute in terms of his report. In the instant case, the parties had under taken to be bound by his finding and it was also agreed upon by them that his report shall be final. Thus the position of the Naib-Tehsildar in the present case was not of a Local Commissioner only. He was in fact a referee though he was referred to as a Local Commissioner. The report made by him will, therefore, have to be treated as a verdict of a referee. As regards the plea of learned counsel for the respondent that in an inquiry which is to be held by a Local Commissioner is not required to be held by a referee, it is not supported by the case of Mst. Akbari Begum AIR 1933 All. 861 relied upon by him. An agreement to resolve a dispute in terms of verdict of referee is different from deciding a suit on the basis of a Special Oath to be made by a person by relying on his own knowledge. While agreeing to be bound by the opinion of the referee, the parties decided to go by what he holds regardless of the fact that his decision is founded purely on his personal knowledge or is based on some investigation conducted by him. In the present case, the parties agreed to the dispute being decided by a referee instead of being disposed of by the Courts.
' In Mushtaq ur Rehman's case, neither the term "Referee" nor "Arbitrator" was used in the order of the Court. In fact Naib-Tehsildar was appointed as a Local Commissioner to hold an inquiry and thereafter was to make a report which was to be treated as final and binding on the parties.
Despite the fact that the word "Local Commissioner" was used, yet, the Court observed that he was a referee only. This in a way answers the objectiop of the learned counsel for the petitioner that since the word " has been used in the statements of the parties and the order of the Court, therefore, it necessarily meant reference to Arbitration only. Reference in this context may also be made to the case of Sher Zeman Khan v. Noor Khan and another PLD 1977 Lab. 672 where a distinction between the "Arbitrator" and "Referee" has been brought out clearly. Near in point of time is a decision in the case of Mehr Din and two others v. Siraj Din and two others PLD 1980 BJ 45 where Khalilur Rehman, J. interpreted provisions of sections 20 and 31 of the Evidence Act, 1872 and dealing with the question of a "Referee", observed in para. 12 of the report as under:- "This brings me to the objections by the learned counsel for the respondents/defendants.
According to him, referee is one who passes an information at once without visiting the spot and taking any measurements. As already noticed,two cases PLD 1977 Lab. 672 and PLD 1978 Lah. 31 were cited. Latter case is distinguishable. It is a case of a Local Commissioner. The rule pronounced is that "the Court cannot delegate its power to a Local Commissioner". No such point arises in the case in hand. In the former case the learned Judge has drawn distinction between a referee and an arbitrator. It observed:- "A statement made by the referee on the basis of inference drawn from evidence taken by him is an award and not the statement of a Referee under section 20 of the Evidence Act."
' I feel, it is not intended to lay down that the referee is one who passes information to the Court based on his own knowledge without visiting the spot or informing himself of the situation. Learned Judge has himself recorded a rule of caution. It is observed:- "It is a different matter if a referee does not have any personal knowledge about the situation or locality of the particular property and visits the spot in order to find out that situation and makes a statement before the Court after having obtained some personal knowledge or even after obtaining belief regarding the truthfulness of matter."
'It was the tenant himself who invited the Court for the resolution of the controversy in accordance with whatever statement was made by Haji Muhammad Din. The intent of the parties making statement was to get a final decision of the eviction petition in accordance with the statement of Haji Muhammad Din. Of course in making such a statement he was to hear the parties, but that would not detract from his status to act as a referee. Even otherwise when a party invited the Court to adopt procedure different from the one provided in the Rent Laws, he cannot turn round and say that the Court is to blame for adopting the very procedure which he invited the Court to follow.
There is such a thing as estoppel also apart from the question of adjustment and the C doctrine of estoppel would apply with its full force to a party who attempts to blow hot and cold approbate and reprobate in this fashion. In the case under consideration, it is clear that the eviction order passed by Rent Controller must be deemed to be and order passed with consent of both the parties and it is not open to the petitioner to find fault with it. I am, therefore, of the firm opinion that Haji Muhammad Din was never intended to be appointed to act as arbitrator to resolve the controversy. In fact, parties referred the matter to him as referee for a statement to be made by him. The statement so made by him was final and binding on the parties. Consequently, the objections preferred by the petitioner were rightly disallowed by the Rent Controller.
5. As regards the misconduct, suffice it to say that there is no evidence on file that Haji Muhammad Din misconducted himself or the proceedings. As is evident from his report dated 7-9-82 and the statement made in Court, he had heard both the parties and then submitted his report which in fact is a statement in writing. Learned counsel then submitted that application for removal of Haji Muhammad Din by itself amounted to revocation of agreement and that thereafter award/statement made by him is of no legal avail. Submission is, that no permission of the Court was needed for revoking the agreement earlier arrived at. Therefore, the Courts acted without jurisdiction in relying upon the statement of Haji Muhammad Din made after this alleged revocation. I am afraid, I do not see any merit in this submissioi.. The agreement that the matter- in-dispute, be decided in accordance with the statement of the third person is in the nature of an agreement/contract and it lay in the discretion of the Court only to have permitted the petitioner to retrace and wriggle out from the agreement to abide by the statement of Haji Muhammad Din before it was acted upon. The petitioner could not nullify the effects of earlier agreement unilaterally without permission of the Court. Therefore, his mere application seeking removal of Hail.
Muhammad Din to act as Arbitrator/Referee would not be sufficient in law to put an end to the agreement earlier arrived at between the parties. Reference may be made to the case of Mst. Asifa Sultana v. Honest Traders, Lahore and another PLD 1970 SC 331. No legal bar exists in the Punjab Urban Rent Restriction Ordinance, 1959, none, at least has been pointed out to me by learned counsel for the petitioner F prohibiting either expressly or impliedly or curtailing in any manner the rights of the 'parties from agreeing to have a decision of the case on the basis of the statement of a third person acting as referee. The petitioner/tenant had agreed to abide by the statement made by Haji Muhammad Din as a Referee and the decision of the case in accordance therewith.
The referee after hearing the parties submitted a written report in Court which has rightly been relied upon and made the basis of the eviction order by the learned Rent Controller. Appeal also has been dismissed by learned Additional District Judge. Legislature has taken away the right of second appeal in Rent Laws. The scope of intereference in cohstitutional jurisdiction is limited and is meant to correct errors of jurisdiction as and when subordinate Court or Tribunal acts without jurisdiction or in excess of it or fails to exercise it. It is a supervisory jurisdiction and is not meant to be used as subtitute for appellate jurisdiction. Learned Courts below have not committed any error of law either, in deciding the eviction petition in accordance with H the statement of HajiMuhammad Din, a person chosen by the parties and in whom full confidence was reposed by them. The petitioner, therefore, has not succeeded to make out a case for interference in constitutional jurisdiction. The constitutional petition, therefore, lacks merits and is dismissed. The parties are directed to bear their own costs.