This appeal is directed against an order dated 12-3-1986 of the learned Senior Civil Judge, Sargodha, whereby he stayed the proceedings in the suit under Section 34 of the Arbitration Act.
2. The appellant-plaintiff brought a suit to claim Rs. 25,00,000 for having executed some additional work. The respondent-WAPDA objected to the maintenance of the suit on the ground that by virtue of clause 67 of the Agreement, all disputes even though arising after completion of the main work, were to be settled by the Engineer as Arbitrator and that the suit could not proceed on. They made a formal application dated 11-12-1985 in this behalf.
3. The appellant-plaintiff in reply denied the existence of any provision in the contract to refer disputes to arbitration and maintained that clause 67 was in no way an arbitration clause.
4. The trial Court quoting clause 67 of the Agreement verbatim held that it made a provision for referring disputes including those arising after completion of the work, to the Engineer for settlement and that the suit could not proceed on. Consequently it stayed the same.
5. Mr. Riaz Karim Qureshi, counsel for the appellant submitted firstly, that by having sought an adjournment before making the application under Section 34 ibid, the respondent-WAPDA had taken steps in aid of the proceedings and that they were precluded from invoking it. I have perused the relevant order dated 2--11-1985 on the record. It does not show if any request was made on behalf of the respondents for adjournment to file written statement. However, the Court had adjourned the case for filing written statement. The only thing done on the date by the respondent was that their counsel filed his Power of Attorney. Reliance was placed on Board of Intermediate and Secondary Education, Sargodha and another v. Messrs Akhtar Brothers (1981 CLC 221) for the view that even an oral request for adjournment amounted to a step in aid of proceedings and submission to the jurisdiction of the Civil Court. The record does not support this contention inasmuch as there was no request proceeding from the respondents for adjournment. It appeared to have been an order passed in the routine without showing that the adjournment was being granted on a pointed request made by the respondents in that behalf. The rule on the point is more succinctly stated in Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners (PLD 1981 SC 553 (564)) where a definite test was laid down to see if the intention really was to submit to the jurisdiction of the Civil Court and not abide by the Arbitration clause. Indeed in that case much turned upon the application made for adjournment and it was held that there was no indication on the part of the defendants to acquiesce in the proceedings before the Civil Court. In this case, as already remarked, there was no such application so as to determine the true intent of the respondents to take part in the suit by filing a written statement. The adjournment granted in routine may not be necessarily ascribed to a sort of oral request of the respondents. In the absence of any written application for that purpose, it is not easy to infer against the respondents. In fact there are a few other cases like Island Textile Mills Ltd., Karachi v. V./o Techno-expert and another (1979 CLC 307) and Province of Punjab through Secretary to Government of Punjab, Communication & Works Department, Lahore and 4 others v. Ehsan Fazal & Company, Lahore through Partner (1986 CLC 2800) wherein even applications for temporary injunction etc. Etc. Were held not to be steps in aid of the proceedings in the suit. Acting upon that analogy, one may well observe that in the case in hand where no application either for adjournment or for temporary injunction or for any other ancillary relief was made, the respondents did not disclose an intractable intention to file written statement. Besides all else, the appellant did not raise this point in his written reply. The question, if not entirely of fact, was at least a mixed question of fact and law.
It could not be allowed to be agitated in appeal when it was not raised before the Court of the first instance. In Allah Ditta v. Ghulam Haider and others (1988 H SCMR 964) a point not urged before the lower appellant Court was deemed to have been abandoned.
6. Next it was emphasized that `the Engineer' shown in clause 67 of the Agreement being a signatory on behalf of the respondent-Wapda was virtually a party to it and could not act as an Arbitrator. I am afraid if this were so. In the Province of the Punjab v. Messrs Irfan & Company (PLD 1956 Lah. 442) in a similar agreement wherein Province of the Punjab was a party, objection to the nomination of its Secretary as Arbitrator was overruled. He was not considered to be a party to the contract, as factually Province was the party. In the case under consideration, 'the Engineer' was not a party. In fact WAPDA was the party though the Engineer may be its employee. If a Secretary of the Province of Punjab could in the cited case act as Arbitrator, why on parity of reasoning, the Engineer of the respondent-Wapda could not also act as arbitrator in this case. The plea was insubstantial. The further objection was that clause 67 ibid did not use the expressions 'arbitration' or 'arbitrator' and, therefore, the intent to adopt such course was not visible in the agreement. The contention was merely technical. The language of the clause manifestly provided for settlement of disputes arising between the parties out of the contract and obviously meant to create a forum for deciding such: differences and in effect was not less than an arbitration clause. In the precedent case mentioned above, the expressions `arbitration' or `arbitrator' were conspicuously missing, yet the Secretary was construed to be an Arbitrator to settle the disputes between the parties concerned.
7. Last but not the least, Mr. Qureshi claimed that arbitration clause had since been deleted in similar agreements with other Departments and that clause 67 was merely an administrative measure to get the disputes settled through the Engineer in the first instance. He added that the phrase "in the first instance" implied that it was open to the parties to resort to other methods in the second or subsequent instances so that the present suit was quite competent. This construction put on clause 67 does not make the mark. The clause itself provides a complete answer to the objection. Deletion of such a clause in agreements with other Departments does not necessarily mean that it was not intended to be provided here. On the. Principle of r es ipsa loquitur, its exclusion was not possible, nor could it be styled as a mere administrative measure as -- could be by-passed to resort to other remedies without availing the Arbitration in the first instance. Section 34 of the Arbitration Act would unmistakably apply and arbitration in the first instance had to be resorted to. If, however, it fails, it would be only for the Court to bypass it as provided by various provisions of the Arbitration Act. Otherwise it could not be lightly brushed aside.
8. In view of the above discussion, the appeal is dismissed with costs.