' SHAFIUR RAHMAN, J.--This direct appeal has been preferred under Article 185(d)(e) of the Constitution of Pakistan as the amount involved in the Award is Rs,6,65,808 and the High Court has set aside the judgment of the trial Court.
2. The appellant entered into a contract with respondent No,2 for the execution of certain works known as "improvement of Government Islamia College, Railway Road, Lahore. The approximate amount of the contract was Rs,24.68 lacs. During the course of the execution of the work a dispute arose between the parties and the attempts to resolve it failed whereupon the contract was rescinded and a new tender was invited through Press on 30-4-1981 which was shown to be at the risk and cost of the appellant firm. The contract between the parties contained an arbitration clause 25(a). The appellant invoked it by giving a notice to respondent No,3 the designated authority and on his failure filed an application under section 20 of the Arbitration Act before the Civil Court seeking reference to Arbitration through Court. The learned Judge by order dated 28-10- 1981 disposed of the preliminary matters and decided that the dispute could be settled by arbitration. The agreement was got filed and by order dated 8-12-1981 the dispute was referred to arbitrators nominated by the parties. The award was filed in Court on 27-7-1982. The appellant made an application on 29-7-1982 requesting that the award be opened and notice be served on the parties to file objections, if any.The notices were issued on 31-7-1982 and, as claimed by the appellants, served on the respondents Nos.2 and 4 the same day through their respective Receipt Clerks. The objections to the Award were filed on 16-10-1982 on the ground that the respondents were for the first time informed of the filing of the Award not on 31-7-1982 but on 25-9-1982 when the learned Government Pleader appeared in Court and the date filing the Award was given. An application had been filed by the appellant on 26-9-1982 under section 17 of the Arbitration Act praying that the Award be made the rule of the Court as the respondents had failed to file objections against the award within the prescribed period, of 30 days from the notice which was taken by the appellants to have been served on the respondents on 31-7-1982. The respondents denied service and claimed that the objections filed by them were within time. An issue, whether the notice of the award having been filed in the Court was duly served on respondent on 31-7-1982, if so, to what effect, was framed. The evidence of the parties was invited. The trial Court held that the service on the respondent was proved through the Receipt Clerks and if the Receipt Clerks had been negligent and careless in bringing the Court notices to the notice of concerned party, the service itself was not rendered defective nor could the respondents avoid the consequences. The Court rejected the objections, made the award the rule of the Court and passed a decree for the sum awarded. All this was done on the same day, by composite order.
3. On first appeal filed in the High Court, the order making the award the rule of the Court, was reversed and the trial Court was called upon to dispose of the objections to the award filed by respondent. As regards respondent No,1, the High Court held that Amanullah on whom service was effected was not shown to be an employee of respondent No,1 at all or authorised to receive the notices. With regard to respondent No,2, the service on Kafait Hussain, the Diary Clerk of the Office of respondent No,2 was established but the High Court held that "the mere fact that Mr. Kafait Hussain (P.W.) had put his initials on the notice Exh.P.1, does not prove that the notice had been received by him in the ordinary course of his duties as a Receipt Clerk particularly when his initials appear on the front side of the notice Exh.P.1 and on its backside which ordinarily is used for such purpose. The fact that Mr. Kafait Hussain has not affixed the office seal on the notice Exh.P.1 as stated by him also raises doubt about the delivery of the notice in the office of appellant No,2.
Having regard to the above facts and consideration, it is held that the respondent has failed to prove service of notice on appellant No,2.
4. Mr. Khalilur Rehman, Advocate, the learned counsel for the appellants has taken up a number of grounds to challenge the findings and decision given by the High Court some of which it appears were not even raised in the High Court. It has been contended that the Receipt Clerks employed in the office of respondents Nos.1 and 2 could, on the basis of Manual of Secretariat Instructions, be taken to be the agent or a servant possessed of both express and implied authority to receive Court notices and having received such notices their act would preclude these two respondents from raising a defence of non-service of such notices. He has also relied on Order V, Rules 12, 26-A and 27 in support of his claim that the service was proper and complete through them. He has also invoked section 80 of the C.P.C. For finding similarity in service of notices in case of Government Departments and Agencies.
5. The first contention, a preliminary one, of the learned counsel for the appellant, which was not taken up before High Court is that as the refusal to entertain the objections filed by the respondents was simultaneously followed by making the award the rule of the Court and giving it the form of a decree of the Court, the competence of the appeal got restricted to only the matters specified under section 17 of the Arbitration Act. For the same reason it is contended that the decree being for a specified sum of money awarded to the appellant, the court-fee had to be affixed ad valorem, and according to the practice prevalent, for the hearing of appeals of such value, only a Division Bench of the High Court and not a learned Judge in Chamber, should have heard that appeal. Looking to the nature of the objection raised by the learned counsel for the appellant, to the nature of the proceedings in the High Court, to its valuation and its hearing, one would have expected a judgment on the issues raised by him. The raising of such objections before this Court in the absence of having raised it earlier and without getting a determination thereof disentitles him to get an adjudication from this Court. Nevertheless, in order to satisfy that has not been any patent error in handling the appeal, the merit of the objections has been examined. By passing a composite order, of refusing to entertain an objection to the award an objection to the award or rejecting it, by making it the rule of the Court and passing a decree in terms thereof, the Court cannot deny to the party the relief to which it is entitled if the two orders are kept separate either in point of time or in treatment. The responsibilities of the party cannot be made more onerous in the matter of court-fee nor can the right be encumbered. Here in the appeal before us, the objection is not so much to making the award the rule of the Court and passing a decree in terms thereof, but as to the refusal to entertain the objections to the award itself. Unless that preliminary point had been satisfactorily examined and decided in accordance with law, there could arise no question of award being made rule of the Court or decree being passed in terms thereof. The decided cases which come to the aid of respondents are Azad Government of the State of Jammu and Kashmir and other v. Ghulam Rasul Lone (1983 CLC 926 (AJ&K), Kh. Ghulam Rasool Lone v. Azad Jammu and Kashmir Government (PLD 1971 A J K 127) and Province of Baluchistan v. Messrs Tribal Friends Company, Loralai (PLD 1986 Quetta 321), to refer to only a few out of a number of others on the subject. Hence the other objections with regard to the valuation of the appeal and its hearing by the two Judges would also not arise.
6. The main thrust of the argument of the learned counsel of the appellant has been that the service of the summons on the respective Receipt Clerks was proper and due service in accordance with the Manual of Instructions applicable to them had been effected. In the first place the Manual of Secretariat Instructions authorising the receipt of communications and letters addressed to the designated functionaries do not mention the Court notices as such. In the absence of it, the Manual of Secretariat Instructions on its own words will not cover the case in hand even if it be assumed that the Receipt Clerks were delivered the copy of the Court notices. It has been pointed out and rightly so that authority to receive Court notices must be in writing and be expressly given for that purpose. This has been held to be the imperative requirement of Order III, Rule 2, C.P.C. Read with Order V, Rule 12, C.P.C. Order V, Rule 10 provides that "service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer, as he appoints in this behalf, and sealed with the Seal of the Court". For the purposes of this appeal Rule 12 of the same Order is relevant which provides that "Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient". Rule 6 of Order III is also relevant for purposes of identifying the person who has an agent to accept service. This Rule is in two parts and provides as follows:-- "(1) Besides the recognized agents described in rule 2 any person residing within the jurisdiction of the Court may be appointed an agent to accept service of process.
(2) Such appointment may be special or general and shall be made by an instrument in writing signed by the principal, and such instrument or, if the appointment is general, a certified copy thereof shall be filed in Court."
There is finally Order XXVII, Rule 4 of the C.P.C. Which makes the Government Pleader the agent of the Government for the purposes of receiving process against the Government. It is true that the Government Pleader is not the only one on whom process against the Government must be served and the judicial Commissioner's decision in the Federation of Pakistan v. Mir Mohim Khan (PLD 1955 Baluchistan 21) has been adequately dealt with in Government of West Pakistan through Collector, Multan v. Mst. Taj Begum (PLD 1973 Lah. 670), and the law on the subject considered. There are recognized modes of service of process, through the Government Pleader, through the recognized agent or through person authorised to accept service apart from delivering the notice to the party concerned.
7. The learned counsel for the appellant has also relied on the principle of subordinate and superior, of master and servant, in order to create a liability for the concerned respondent on the basis that the receipt clerks had received the notices. In view of the express provisions made and already discussed, no such implied relationship can be assumed nor can the penal consequences allowed to follow for the respondent from service on receipt clerks.
8. We have not gone into the factual controversy, whether in fact the summons were served on the Receipt Clerks or not, whether the onus of the issue was rightly placed on the party, and whether the non-production of the process-server who served the process on the Receipt Clerks, was fatal to the proceedings. It is not necessary, on the facts of this case to go into those questions.
9. The appeal is found without merit and is dismissed with costs.