1. SHAFIUR RAHMAN, J.--This appeal is as of right by the plaintiff under Article 185(2)(e) of the Constitution. It is directed against the judgment of the High Court of Lahore dated the 11th of March, 1975 whereby the award given by an Umpire was made rule of the Court notwithstanding the objection of the appellant and a decree in terms followed.
2. The appellant instituted a Civil suit claiming a declaration that he was the owner of a share in property measuring 676 Kanals 13 Marlas in village Khanpur, Tehsil Khanpur, District Rahimyarkhan.
3. It was is case that he had received this land on transfer from his brother, the respondent, in 1928 and since then had been enjoying it as its owner. The revenue record showed that to mutations had been entered and attested. One mutation (No.1126) was attested on 20th of January, 1963 and the other (No.1132) was attested on 23rd of October, 1963 whereby he was shown to have re- transferred this land to the respondent. He challenged these entries and the transactions reflected by them and asserted his right of ownership over the land. He took up the grounds, inter alia, that any such transaction was violation of M.L.R. 64, apart from the fact that he himself had never subscribed to it. This suit was contested by the respondent on numerous grounds including the one that there was no transfer by him in 1928 and it was only an ostensible device by which the land was shown transferred to the appellant. It was pleaded that the respondent had been in enjoyment of his share in the land and the appellant had never repudiated his interest and title in the same. It was in recognition of such interest, and to give effect to his rights, that these to mutations which were being challenged by the appellant, were got attested in his favour. A number of issues were framed on the pleadings of the parties but in view of the nature of the controversy at this stage of the litigation, it is not necessary to reproduce all of them.
4. The trial Court after recording evidence decided the case on merits in favour of the appellant and decreed the suit. An appeal filed by the respondent failed before the District Judge on the 25th of October, 1967. A second appeal was then filed in the High Court. While the second appeal was pending in the High Court, a joint application was made by both the parties, who are brothers inter se, expressing their agreement to get the matter decided by a reference to arbitration. They also agreed to the reference of the dispute to Mr. Inayat Ali, Advocate of Khanpur. On 14th of November, 1968 a learned Judge of the High Court passed the following order:-- "Parties have agreed to refer the dispute to Arbitrator, Sh. Inayat Ali, Advocate of Khanpur. The Arbitrator to follow the provisions of Arbitration Act, 1940 and should put in his award within four months."
5. The appellant filed an application on 25th of November, 1968 seeking an order of the Court superseding the reference to arbitration and requesting the decision of the appeal in accordance with the law by the High Court itself. He took up a number of grounds for avoiding the reference to which he had earlier agreed and these were among others, misrepresentation and undue influence. The one ground which has, however, persisted and requires to be decided at this stage was in the following terms.:- "That the appellate Court has no power to make a reference to arbitration because it is not a Court within the meaning of section 2(c) and section 21 of the Arbitration Act."
6. The respondent resisted the request of the appellant and contended that the arbitration agreement was legal, enforceable and binding on the parties and could not in law be superseded on the plea of alleged misrepresentation and undue influence. It was also contended that the appellate Court had power of reference and the same is not open to any challenge. Soon after this, on 21st of March, 1969 again both the parties submitted an application signed by both of them agreeing once more to refer their dispute to arbitration with the condition that Mr. Inayat Ali Advocate should be replaced as an Arbitrator. They further agreed that the to arbitrators one to be nominated by each of the parties be appointed and in case of difference, the matter be referred to an Umpire. The respondent nominated Syed Asad Hussain Shah, Advocate of Khanpur and the appellant nominated Mr. Muhammad Faizullah Khan as their arbitrators and also by the same application. Agreed that in case of there being difference Mr. Allama Arshad, Ex-M.P.A. Of Bahawalpur shall at - as an Umpire whose decision in the matter shall be final.
7. There was a difference of opinion among the arbitrators and before the matter could go to the Umpire, the appellant moved an application for revoking the appointment of Allama Arshad as an Umpire for the reason that according to the appellant, "he is on friendly terms with one of the counsel of the parties, namely, Ch. Farzand Ali and was on family terms with one Mr. Masood Sami who was interested against him." This application was resisted by the respondent as was rejected by a learned Judge of the High Court on 30th of January, 1970 on the ground that there was no allegation of personal or judicial misconduct and hence the question of revocation of his appointment as an Umpire. As earlier agreed to by the parties did not arise.
8. The Umpire gave his award on the 19th of December, 1970. He agreed with Syed Asad Hussain Shah, Arbitrator and disagreed with the award of Mr. Muhammad Faizullah arbitrator. Objections to the Umpire's award were filed by the appellant under sections 14 arid 30 of the Arbitration Act. The allegations were all with regard to judicial and personal misconduct of Allama Arshad and not with respect to the power of the appellate Court to make a reference as was reiterated in one of the earlier applications already mentioned. The learned Judge of the High Court recorded evidence of the parties on the objections. He examined also the Umpire and rejected the objection to the Umpire's award on 29th of October, 1972.
9. The appellant filed a petition for leave to appeal and to main objections were taken up for seeking leave to appeal. The first was that no reference could be made in second appeal to arbitration and on that account reference to arbitration and the Umpire was illegal ab initio. The other was about the misconduct of the Umpire. This Court did not permit the appellant to raise the first objection on the ground that it was not raised earlier in the High Court. As regards the second objection, it was held that "it cannot be said that the Umpire has misconducted himself." The order rejecting the objections actually raised and argued before the High Court was upheld.
10. On 10-2-1975 another application under section 151, C.P.C. Was filed by the appellant in the High Court praying that the Regular second appeal be decided on merits and arbitration proceedings should be ignored and the order of reference to the arbitrators and Umpires be recalled. The ground not allowed to be taken up before this Court in the petition for leave to appeal was pressed as the main ground and it was that the appellate Court was not competent to refer the matter to the arbitration under section 21 of the Arbitration Act. Reliance was placed on Abani Bhusan Chakravarty v. Item Chandra Chakravarty AIR 1947 Cal. 93, Mrs. M. Baness v. Col. J.P.Turton 23 P.R 1883 and Jinahuddin v. Sarfraz Khan AIR 1938 Pesh 80. This application was rejected by the learned Judge on 11th of March, 1975 holding that as held in, among others, Ct. A.Ct. Nachiapa Chettiar and others v. Ct.A.Ct. Subramariam Chettiar AIR 1960 SC 307 a reference to arbitration under section 21 of the Arbitration Act by an appellate Court was permissible that the reference was in order and by a separate judgment the award given by the Umpire was. Made rule of the Court resulting in the dismissal of the suit of the appellant.
11. By a separate order dated 5-1-1982 we ordered for the proper valuation of the suit property and on getting a report from the Civil Judge, Khanpur, that the value of the property was Rs.2,82,273, the appellant made good the deficiency in court-fee and the appeal has come up for hearing on merits.
12. The learned counsel for the respondent has taken up a number of preliminary objections to the competence of this appeal directly filed in this Court. In the first place it was contended that though valuation of the suit property has been got done and the deficiency in court-fee made up by the appellants but the fact remains that the value is by reference to the judgment and decree of the High Court and not by reference to the date of institution of suit. According to the learned counsel for the respondent this was necessary because under Article 185, clause (2), subsection (e) it was obligatory as was for the other sub-clause (d) of the same Article that value should be over fifty thousand rupees at both material stages. The second preliminary objection of the learned counsel for the respondent is that section 39 of the Arbitration Act specifies the orders which have been made appeal able under the Arbitration Act. The Court's order directing that an award be made the rule of the Court and the judgment and decree in terms thereof should follow do not find any mention in the list of appeal able orders. Finally, it has been contended that the order of the High Court rejecting the objection of the appellant to the award of the Umpire was an appeal able order under section 39 of the Arbitration Act. As a petition seeking leave to appeal. Was filed against the order of the High Court dated 29-9-1972 and it was dismissed the same order could not be made the subject-matter of attack in this appeal.
13. The learned counsel for the appellant contended that on the express words of sub-clause (e), clause (2) of Article 185 the relevant date unlike sub-clause (e) is the date of judgment and decree of a final order appealed from it is not necessary in a case to which sub-clause (e) applies to go by the value of the suit property on the date of the institution of the suit. This distinctive feature of sub-clause (e) makes the appeal competent as admittedly the value of the suit property far exceeded the amount indicated when the judgment of variance was passed by the High Court. As regards the second preliminary objection, the learned counsel for the respondent contended that section 39 of the Arbitration Act itself while specifying the orders appealable under the Act makes an exception in subsection (2) that "nothing in this section shall affect or take away any right to appeal to the Supreme Court". It is also contended that apart from such an exception the amplitude of the power enjoyed by the Supreme Court under a constitutional provision like Article 185 cannot be controlled or whittled down by a statutory provision like section 39 of the Arbitration Act. Finally, the learned counsel for the appellant contended that though the earlier order refusing leave to appeal may be relevant, it would not control the constitutional powers of the Supreme Court of hearing an appeal preferred as of right and doing of complete justice as may be required by facts of the case. According to the learned counsel section 17 of the Arbitration Act cannot be given a meaning so as to nullify or control the appellate powers enjoyed by the Supreme Court under Article 185 of the Constitution.
14. On merits the learned counsel for the appellant submitted that Chapter IV of the Arbitration Act deals with Arbitration in suits and section 21 contained therein makes provision for reference of a dispute in a suit to Arbitration. On the express words of the statute, it is contended, that a Regular Second Appeal would not come within the definition of a suit and during the pendency of a regular second appeal no reference could be made to arbitration. The permissible stage for doing so was when the suit was pending. The word 'suit' according to the learned counsel for the appellant, has been defined in section 26 of the C.P.C. To be one instituted by the presentation of a plaint or in such other manner as may be prescribed. The expression 'Court' has been defined in section 2, clause (c) of the Arbitration Act as a Civil Court and according to a decision of this Court in Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1 the High Court does not qualify as a 'Civil Court'.
15. For these reasons, it is stated that the High Court did not enjoy a power under section 21 of the Arbitration Act to refer for the first the a dispute to arbitration. He has relied on Juqqesur Dev. v.
16. Kritartho Moye Jossee 21 M.R. 210.
17. The other contention of the learned counsel for the appellant is that even if such a reference in second appeal was permissible it had to be confined to the question in dispute in second appeal as the second appeal lies only on a question of law. It is only the questions of law which could be referred to arbitration and not the entire dispute relating to facts as set out in the plaint and adjudicated upon finally by the fact-finding Courts.
18. Finally, it is contended that a number of grounds had been urged with regard to the misconduct of the Umpire. The order passed in petition seeking leave to appeal should not stand in the way of re- adjudication of those grounds. There was a legal misconduct on the part of the Umpire inasmuch as, according to the arbitration agreement, he was to decide the matter on the basis of the record of the Court, that is, the evidence and the documents received in evidence by the Courts. It clearly appears from the decision given by him that he failed to get the record and to consult the same or to base his award on such record. So apart from ignoring the other personal grounds and allegation of misconduct this allegation itself was sufficient to establish the misconduct of the Umpire.
19. So far as the preliminary objections referred to by the learned counsel for the respondent are concerned, we are not impressed by any one of them. This appeal has been preferred as of right under sub-clause (e) of clause (2) of Article 185 and this clause is in contradistinction to clause (d).
20. The relevant portion of both these) clauses are set out hereunder:- "185.--(1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of a High Court.-
(2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court:
(a) ..........................................................
(b) ..........................................................
(c) ..........................................................
(d) if the amount of value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of Parliament and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or
(e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or
(f) .................................................
21. (3)------------------------------------.
22. The reference to sub-clause (d) found in clause (e) is only with regard to "property of the like amount or value". This expression finds elaborate mention in clause (d) and in the words "if the amount or value ........ Is not less than 50,000 rupees". The expression 'like amount' or 'value' clearly refers to the amount or value, that is, fifty thousand and not necessarily to the to stages, that is, the Court of first instance and also in appeal. These stages cannot be held to be covered by the expression ' amount' or 'value'. The late Justice M. Munir in his commentary on the Constitution of Islamic Republic of Pakistan while taking note of this provision has observed as follows:- "It will be noticed that sub-clause (e) does not specifically require that the value of the property in the Court of first instance must be fifty thousand rupees or more though it is apparent that if the amount involved in the claim or question before the Court was fifty thousand rupees or more the same must have been the minimum amount or value involved in the Court of first' instance."
23. If the interpretation as given by the learned counsel for the respondent is placed on this provision, there would not be much of the difference left between sub-clause (d) and sub-clause (e).
24. The constitutional jurisdiction of this Court in appeal as of right under Article 185, sub-clause (d) or sub-clause (e) could not be whittled down by section 39 of the Arbitration Act because there is an exception contained in that very section and we do not see how a constitutional power can be curtailed by an Act of Parliament The third objection of the learned counsel for the respondent also relates to the scope of an appeal filed as a matter of right. As this appeal is against the final order judgment or decree and the Court is also possessed of power of doing complete justice in a case, it will not be proper to read into it any restriction or curtailment of powers except those which may on merits be justified in individual cases. These preliminary objections are not tenable.
25. So far as the contention of the learned counsel for the appellant on merits is concerned much of .It is untenable in view of the decision of the Indian Supreme Court in the case of Ct. A. Nachiappa Chettfar v. Ct. Subramaniam Chettiar and not only the decision relied upon by the learned counsel for the appellant was overruled by this decision but a power of the appellate Court to refer a dispute to arbitration even for the first the at the stage of the appeal pending in the High Court was recognised. The appellate Court being possessed of all the powers enjoyed by the Court from which an appeal is received or in which the proceedings were initiated, the High Court would as well enjoy in appeal the power of making a reference to arbitration. Such a power being available to the High Court as an appellate Curt it is immaterial that it was held to be not a civil Court strict sense in Hussain Bakhsh's case for the powers enjoyed by a civil Court under section 21 would be available to it as an appellate Court.
26. The distinction sought to be made by the learned counsel for the appellant in proceedings in suit and in appeal is technically there but not in substance, In the case of F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 the following principles governing an appeal were spelt out:- "---....In fact decided cases show' that in respect of the nature of an appeal the following propositions may be regarded as established:
(i) When an appeal is filed the matter becomes sub judice and is reheard by the appellate Court which does not at merely as a Court of error;
(ii) after there has been an appeal even though an appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the appellate Court; (i.e) the original and appellate proceedings are steps in one proceedings."
27. The third proposition was amplified in the following words: "The third proposition should really follow from the first to, but reference may be made in this connection to the judgment of the Supreme Court of India in Garikapati Veeraya v. Subbiah Choudhry PLD 1957 SC (Ind.) 448 whereafter an exhaustive review of cases it was held that "the legal pursuit of a remedy, suit, appeal and second appeal, are really but steps in a series of judicial proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding."
28. We are not at all unfamiliar with cases where an appeal is said to be a continuation of a suit or is included within the word suit. The legislature when it provides a hierarchy of tribunals for the determination of a dispute is really providing one complete procedure for such determination, proceedings before different tribunals being only steps in this procedure."
29. The learned counsel for the appellant is not on strong grounds in contending that as the scope of the second appeal is restricted to questions of law, the reference to arbitration must necessarily be confined to only questions of law and cannot extend to controversy of fact already dealt with by the fact finding Courts. Section 21 provides for reference of any matter in difference between the parties to the suit and there is no particular reason why at the stage of appeal the difference should be narrowed down to only law points just as a compromise can be entered into in second appeal not only on points of law alone but also on questions of fact, all the differences between the parties arising in the proceedings initiated by civil suit and brought before the appellate Court can be referred to arbitration.
30. There were three objections taken to the conduct of Umpire at different stages of the proceedings.
31. The first objection was taken up when the to arbitrators differed and there arose an occasion for referring the dispute to the Umpire. By an application filed by the appellant, it was contended that Ch. Farzand Ali, Advocate for the respondent was on friendly terms with the Umpire. Besides, the Umpire was also on friendly terms with one Masood Sami who was interested in the success of the respondent. A learned Judge disposed of this objection on the 30th of January, 1970 by observing as follows:- "The authority of an arbitrator can be revoked under section 5 of the Arbitration Act only if it is proved either that the arbitrator has misconducted himself for the proceedings. The position of the Umpire is not different from an arbitrator. In the absence of any allegation on the part of Allama Rehmat Ullah Arshad as to personal or judicial misconduct, the question of revocation of his appointment does not arise."
32. On receipt of the award to objections were taken to it. The first was that the arbitrator was required to consult the record of the Courts for deciding the question referred to him. He had not, according to the learned counsel for the appellant, done so. The second objection was that he had not given his independent award and the reasons therefore He had instead agreed with the award of one of the arbitrators. These objections were disposed of by the learned Judge after recording evidence on the objection and particularly after examining the Umpire himself. These were found untenable and rejected. This matter was brought by a petition for leave to this Court and was disposed of in the following words:- "The award clearly shows that the Umpire has read the decision of the to arbitrators. He also heard the parties, heard the arguments of their counsel and thereafter came to the conclusion that the decision of Syed Asad Hussain is based on correct facts and consideration of documents. In our opinion, in these circumstances, it cannot be said that the Umpire has misconducted himself. The High Court has rightly rejected the objection."
33. There is nothing new urged on behalf of the appellant regarding the misconduct of the Umpire. The same grounds are being reiterated. So far as the first objection application is concerned as it did not, disclose any personal or proprietary interest of the Umpire nor reflected a personal bias of the Umpire against the appellant there was no question! Of the Umpire rendering himself disqualified on any ground whatsoever.[ As regards the other objections, we find that the Umpire was examined as a witness. He stated therein that the parties had agreed that instead of recording the statement of parties and of their witnesses afresh, the Umpire should decide the dispute on the basis of the record of the Court. This request was noted by the Umpire. No question was put to him at all as to which record he consulted and which record he omitted to consult. Such a question and answer to it alone would have demonstrated whether there has really been a violation on the part of the Umpire to consult the relevant record and if so, what was its legal effect. In the absence of it the very substratum on the basis of which such an argument is being advanced disappears. We find from the award given by the Umpire that he had occasion to take full view of the dispute between the parties and has preferred the opinion of one of the arbitrators. It is to be noted that when the proceedings reached him there was the considered recorded opinion of the to arbitrators before him. Both had given reasons for arriving at different conclusions. The parties had declined to produce further evidence or to get themselves examined with respect to it. Their only concern was that the Umpire should decide the matter in the light of the to awards before him and the record of the case. He did so and preferred the award given by one of the arbitrators. It is true that it does not contain the specific reasons for agreeing with it but at that the no such reasons were required to be recorded.
34. It appears from the proceedings that the parties had chosen a forum of their own choice. They had submitted to the arbitration proceedings and the award given by the named Umpire. Reasons for objecting to the award are found all untenable. In the circumstances there is no merit in any of the grounds urged by the learned counsel for the appellant. The appeal fails and is dismissed with costs.