1. ' This Revision is directed against judgment and decree dated 24-8-1985 and 7-7-1986 passed by Qazi Barkhan and Majlis-e-Shoora, Loralai respectively.
2. Brief facts leading to this petition are that on 31-1-1974 petitioner filed a suit for possession through pre-emption in respect of land known as Domki situated in Mauza Noor Khan Jamalani, Helga Baho, Tehsil Barkhan which is said to have been purchased by respondents 1 to 5 towards April, 1973 for consideration of Rs,24,150. Plaint was instituted in the Cdurt of E.A.C. Additional District Magistrate Barkhan exercising powers under the Provisions of F.C.R. The suit was contested by defendants and they filed their written statements on 26-2-1974, 7-2-1974, 18-2-1974 and 8-7-1974, wherein claim in suit was vehemently repudiated. It was inter alia pleaded that suit was barred by time because land in dispute was factually purchased by defendants 1 to 5 on 10-1-1973. Besides it was maintained that petitioner had himself acquiesced to the purchase of land by defendants.
2. Therefore, proceedings are malicious. It appears that council of elder was constituted, who Thy means of recommendation dated 28-1-1978 suggested that suit be decreed in favour of petitioner.
3. Subsequently Deputy Commissioner, Lorelei vide order dated 7-3-1978 accepted aforementioned recommendation and decreed the suit. Respondent feeling aggrieved on 20-3-1978 filed Revision Petition (No, R.C-20-Jirga/1978) before Additional Commissioner, Quetta which was however accepted by means of order dated 13-7-1978 and consequently case was transferred to the Court of learned Qazi Barkhan for fresh trial in view of the promulgation of Baluchistan Civil Disputes Shariat Application Regulation, 1976.
4. ' It seems that after the receipt of file in the Court of Qazi Barkhan an amended plaint was filed after incorporating necessary changes to which written statement was also submitted on 26-12-1978.
5. Learned Qazi on 25-5-1982 framed following four issues:- {{URDU TEXT}} ' During trial some evidence was however recorded. Ultimately by means of judgment dated 9-6- 1982 suit was dismissed. Petitioner thus feeling aggrieved on 20-6-1982 preferred an Appeal No, 15/82 in the Court of Majlis-i-Shoora, Quetta which was partly accepted by said Court vide judgment dated 14-4-1983 whereby case was remanded for determination of claim between the parties afresh after framing issues and affording the opportunity of adducing evidence.
3. Record reveals that, after remand the case file was received in the Court of Qazi Barkhan towards August, 1983 and placed before the Presiding Officer on 15-8-1983, who summoned the parties for 10th December, 1983. On the said date viz 10-12-1983 the parties submitted an agreement to refer the matter to Hazrat Agha Pir Abdul Manaf as sole arbitrator. Time was fixed upto 6-1-1984 and was then intended upto 26-2-1984. However when said arbitrator failed to submit his AWAF till the extended date, the trial Court recorded better statement of the parties on the last mentioned date viz 26-2-1984 and postponed the case for 7-4-1984 for evidence. On this date statement of (i) P.W.
6. Naik Muhammad, (ii) PW Mehrab Khan, (iii) PW Marzahan, (iv) PW Khair Muhammad and (v) PW Taj Muhammad were recorded and petitioner closed his side. Similarly statements of DW (i) Noor Muhammad s/o Ahmad and (ii) DW Noor Ahmed s/o Jan Muhammad were recorded in rebuttal on the same date viz 7-4-1984. However during the pendency of proceedings parties once again towards 13-9-1984 filed an agreement seeking reference to the nominated arbitrator namely Khawaja Attaullah. Consequently award of said Arbitrator was awaited on (i) 15-11-1984; (ii) 13-12- 1984, (iii) 17-1-1985, (iv) 12-2-1985, (v) 14-3-1985, (vi) 15-4-1985 and (vii) 9-5-1985. Anyhow further time for filing of award was not extended. In fact award was not received even upto 10th August, 1985. Thus trial Court again summoned the parties for concluding the proceeding in the matter. On 20-8-1985 parties appeared before trial Court, they were apprised of the proceedings, their attention was drawn to the issues already framed, and opportunity was afforded to them to lead additional evidence. It may be seen that on the next date viz. 24-8-1985 petitioner produced two additional witnesses namely (i) Jana' and (ii) Dolat who were accordingly examined. Parties by way of written applications closed their respective aside. The judgment was also announced on the same day viz. 24-8-1985 whereby suit of the petitioner was dismissed. Feeling dissatisfied from aforementioned judgment and decree, the petitioner on 19-9-1985 filed an appeal which was dismissed by the Majlis-i-Shoora, Loralai by means of judgment and decree dated 7-7-1986.
7. ' Petitioner has now filed this petition on 4-9-1986 challenging above-mentioned judgments and decrees of both the Courts below.
8. ' Mr. Basharatullah learned counsel for petitioner urged that; (i) parties liad agreed to refer the matter for disposal through sole arbitrator namely Khawaja Attaullah, therefore reference being irrevocable, without superseding the same proceeding could not have been lawfully drawn up by lower Court, therefore; impugned judgment are illegal, (ii) that Talabs were properly made end have been effectively proved, but the Courts below have complete)), misread the evidence and inferences has been drawn merely on technical basis, therefore, according to him impugned judgments are defective.
9. ' Whereas Mr. Azizullah Memon learned counsel for respondent contended that (i) petitioner voluntarily participated in the proceedings when award was not remitted within extended tune, so much so that additional evidence was adduced by him. Therefore, according to him objection regarding subsistence of arbitration agreement is misconceived. Besides since award was not furnished within stipulated period, therefore, arbitration agreement automatically stood superseded consequently trial Court rightly concluded the proceedings on merits, (iii) evidence has been correctly and properly evaluated by the Court below. Talabs have not been proved as required by Muhammadan Law. Thus concurrent finding of fact cannot be interfered with in the exercise of revisional jurisdiction.
10. ' I have perused the record and considered arguments advanced by learned counsel for parties.
11. ' The first contention of learned counsel for petitioner relates to jurisdiction of trial Court in proceeding with the matter on merits. It is emphatically contended that agreement between the parties for referring the dispute to sole arbitrator was not revocable except with the leave of Court.
12. It was thus suggested that in the absence of any specific order of Court superseding the reference, proceedings recorded in the matter, should be deemed unlawful. It may be seen that on the request of parties time for filing award was extended to various dates from 15-11-1985 to 9-5-1985 and thereafter even upto 10-8-1985 when trial Court resumed jurisdiction; award was not furnished.
13. No doubt an agreement for arbitration arrived at between the parties is revocable only in the manner prescribed under sections 11 and 12 of Arbitration Act. However mode of filing award is regulated by the Court. The award is required to be furnished within specified period or extension granted by the Court for said purpose. Thus if time is not extended then award cannot be entertained resultantly agreement for arbitration is frustrated. It may be noted that Court cannot helplessly throw itself at the mercy of arbitrator once reference, is made. On the contrary if award is not submitted as contemplated by the provision of section 28 of the Arbitration Act within period specified from time to time and ultimately time is not extended. Court can legitimately commence ordinary proceedings on merits uneffected from the existence of any arbitration agreement. Thus on the refusal to extend time the arbitrator obviously becomes functus officio, on account of which all subsequent actions taken or recommendation made in the matter cease to have legal value.
14. Accordingly objection about jurisdiction raised by petitioners' counsel, is not well conceived.
15. ' In this behalf I am supported by observation in following
(i) N.P. Chokkapa Malliar v. S.M. Ahmadullah Sahib (Volume XXI Indian Cases 1913 (558) cases:- "What we have to consider is, in this case, has there been, in effect, an order superseding the arbitration. No application was made to the learned Judge to extend the time within which the award had to be submitted. No formal objection was taken, so far as we can gather, to the learned Judge's proceeding with the suit on the ground that the arbitration proceedings were still subsisting. I think we must take it that although no order was made in so many words superseding the arbitration, inasmuch as the learned Judge made no order extending the time and did proceed with the suit, in the circumstance I think we must take it that there was, in effect, an order superseding the arbitration, and that the arbitration was superseded by the learned Judge's proceedings with the suit."
(ii) Gopal Lal Mandal v. Suresh Chandra Mukerji (S.C. 12 C.L.J. 624 Calcutta High Court) (Volume III Indian Cases 1910-Page 1107)
16. "As already stated the 23rd November was fixed for the submission of the award of the arbitrators.
17. As the award was not submitted on that day, the reference fell through, and the Subordinate Judge could properly hold that the order of reference to arbitrators should be set aside. But the obvious course to follow after this, was to fix a date for the hearing of the suit, so as to enable the parties to appear and adduce evidence in support of their respective cases. Without following this course, the Subordinate Judge proceeded to dismiss the suit for default. This order cannot be supported on any conceivable ground. The Rule is, therefore, made absolute and the order of the Court below set aside. The Subordinate Judge will fix a date for the hearing of the suit, so as to give the parties opportunity to adduce evidence in support of their allegation and will then proceed to decide the case on the merits."
18. ' Generally main object of referring the matter for arbitration is to obtain speedy disposal of the dispute by avoiding technicalities and intricacies of procedure. But if it is known that the matter is being unreasonably delayed or the arbitrator is causing inexcusable delay in such circumstances the Court undoubtedly has jurisdiction to revoke, the reference or authority of nominating arbitrator.
19. For the reasons and circumstances discussed above I am satisfied that on account of unexplained inordinate delay on the part of B Arbitrator in submitting the award, trial Court had inherent jurisdiction to supersede the same and proceed with the matter and authority in this behalf has rightly been exercised.
20. Besides parties also did not raise any objection when arbitration proceedings were bypassed.
21. Evidently petitioner himself submitted list of two additional witnesses who were duly examined by the trial Court, therefore, he is also estopped by his conduct to challenge action taken by the Court merely because decision has gone against him on merits. The proceedings drawn and concluded by the trial Court are deemed to be proper, legally justified, and with jurisdiction.
22. ' Now reverting to merits of the claim it may be seen that PWs Naik Muhammad and Mehrab deposed about making of Talab-e-Mawasabit. There are glaring lacuna ,and contradictions in the statements of said witness. Evidence does not reflect that intention was immediately expressed.
23. Whereas P.Ws Mirzahan, Khair Muhammad and Taj Muhammad generally state that they accompanied plaintiff who made a demand of the land from respondent. Similarly P.W. Khan Muhammad and Dost Muhammad merely mentioned about petitioner's approaching respondent for asserting right of pre-emption over the land. Bare perusal of the evidence on record clearly indicate that Talab-e-Ishhad has not been made properly. Procedure and manner in which two talabs are required to be made for validly asserting right of pre-emption are given in para 236 of Principles of Muhammadan Law by D.F. Mulla. Same is however reproduced for ready reference: "236. Demands for pre-emption.-- No person is entitled to the right of pre-emption unless (1) he has declared his intention to assert the right immediately on receiving information of the sale. This formality is called Talab-i-Mowasibat (literally, demand of jumping, that is, immediate demand); and unless
(2) he has with-least practicable delay affirmed the intention referring expressly to the fact that the Talab-i-Mowasibat had already been made (a) and has made a formal demand-
(a) either in the presence of the buyer, or the seller, or on the premises which are the subject of sale (b), and
(b) in the presence at least of two witnesses
(c) This formality is called Talab-i-Ishhad (demand for with invocation of witnesses) (d)
24. It is quite evident that unless 'Talabs' are made in the prescribed manner, right of pre-emption cannot be legitimately claimed. Minute examination of evidence discloses that Talab-i-Ishhad was also not properly made. Furthermore admittedly none of the witnesses while deposing about making of Talab-i-lshhad have even obliquely referred to Talab-i-Mowasibat having been made earlier. Thus petitioner has failed to prove making of Talab-i-Ishhad in the prescribed manner, in spite of the fact that opportunity for producing evidence was repeatedly provided. In view of glaring defects in making 'Talabs', the suit filed by petitioner is not maintainable. On this aspect I am also supported by the observation in case (i) Muhammad Lokman Mondal v. Amir All Mondal and others PLD 1969 Dacca 64 and (ii) Jadal v. Abdul Majeed and others PLD 1978 Karachi 732.
25. It may be seen that both the Courts below have properly discussed and evaluated evidence adduced by the parties. There is apparently no error or defect in the appreciation of material available on record. In fact on independent appraisement of all the factors I have also arrived at the same conclusion, which are contained in the impugned judgments. Since petitioner has failed to make 'requisite Talabs', therefore he is obviously not entitled to assert his right of pre-emption.
26. Besides as discussed above basis for the claim as well have not been satisfactorily proved.
27. ' There is concurrent finding of fact arrived at by the two courts below. It is now well-settled principle that scope of interference in such like circumstance is highly limited. On this legal aspect there is plethora of case law. However some of the recent judgments are relied:-
(i) Rab Nawaz v. Mst. Mehr Sawai and others 1987 SCM R 785.
(ii) Muhammad Arshad v. Muhammad Ismail and others 1987 SCM R 115.
(iii) Muhammad Bakhsh and another v. Qadir Bakhsh and others 1986 SCM R 412.
(iv) Sardar Ally v. Abdul Ghani and others PLD 1987 Karachi 58.
(v) Talib Hussain v. Babu Muhammad Shafi and others PLD 1987 Lah.
28. 4.
(vi) Sawan and others v. Majeedullah 1987 CLC 815.
(vii) Haq Nawaz v. Dildar alias Dada and others 1987 CLC 1021.
29. For the foregoing reasons, I do not find any substance in the revision Same is accordingly ordered to dismissed Parties however are left to bear their own costs.