1. ANWARUL HAQ, J.-The appeal, by special leave, is by the plaintiff and has arisen out of the dismissal by the High Court of a suit for the ejectment of the respondent Mirza Bashir Ahmad from a shop- cum-residence situate in Chichawatni Town of the Sahiwal District.
2. The appellant and the respondent were carrying on business in partner--ship under the name and style of Mirza Bashir Ahmad and Abdul Karim since 1947. They fell out in 1953, dissolved the partnership and referred their dispute to arbitration. Under the award made by the arbitrators on the 20th of September 1953, the respondent was found liable to pay a sum of Rs. 12,610-9-0 to the appellant. For the adjustment of this amount the property in dispute was given to the appellant, valued at Rs. 9,000 and for the balance of Rs. 3,610-9-0 the award provided that the respondent would execute a promissory note and would be allowed to continue in possession as a tenant of the house and shop for a period of thirty months on a monthly rental of As.
40. It was further provided in the award that if within the same period, the respondent paid a sum of Rs. 9,000 to the appellant; the, latter would retransfer the property to the respondent. However, in the event of the respondent's failing to make this payment of Rs. 9,000 within the stipulated period, the title of the appellant in the house was to become absolute. The award also provided that in case the respondent failed to pay the rent regularly, he would be liable to ejectment. The stipulated period expired on the 1st of April 1956, but the respondent failed either to pay the sum of Rs. 9,000, or the rent of the premises regularly. A sum of Rs. 616 was due from him as arrears of rent. In these circumstances, the appellant instituted a suit for the ejectment of the respondent.
3. The suit was resisted mainly on the ground that the award being an unregistered document did not pass any title in favour of the appellant, and was inadmissible in evidence under the provisions of section 49 of the Registration Act. The trial Court admitted the award into evidence on payment of stamp duty and penalty, and decreed the suit for the ejectment of the respondent. It, however, dismissed the suit for the recovery of the arrears of rent on the ground that satisfactory evidence had not been produced by the plaintiff-appellant in this behalf. This decision was upheld in appeal by the District Judge, but in second appeal a learned Single Judge of the High Court set aside the decree of the Courts below and dismissed the suit, holding that the award was compulsorily registrable and not having been so registered, was inadmissible in evidence.
4. The plaintiff appellant thereupon filed an appeal under clause 10 of the Letters Patent. A Division Bench of the High Court reversed the decision of the learned Single Judge as regards the admissibility in evidence of the unregistered award, but nevertheless dismissed the appeal by its judgment dated the 14th of June 1966, on the ground that the suit was barred by reason of the prohibition contained in section 32 of the Arbitration Act.
5. It is submitted by the learned counsel for the appellant that the ground upon which the Letters Patent Bench has dismissed the suit had never been taken by the respondent during the trial of the suit, nor was it urged at any subsequent stage, and that it was not even argued before the Letters Patent Bench, but the Bench took up the question suo motu, without any notice to the parties, when writing and delivering the judgment. It is contended that as provided by rule 2 of Order VIII of the Code of Civil Procedure, the objection as to the maintainability of the suit should have been taken by the respondent at the earliest stage in his pleadings, so that the plaintiff was not taken by surprise. It is next submitted that even on merits the learned Judges of the High Court have erred in holding that the suit was hit by the provisions of section 32 of the Arbitration Act.
6. We consider that there is substance in the submission made on behalf of the appellant.
7. Rule 2 of Order VIII of the Code of the Civil Procedure provides that "The defendant must raise by his pleading all matters, which show the suit not to be maintainable or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite-party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance or facts showing illegality."
8. It will be seen that according to this rule, it is the duty of a defendant to raise, in his written statement, all, points of lave or fact which show that the suit is not maintainable. Now in the present case, the objection as to the maintainability of the suit, in terms of section 32 of the Arbitration Act, was not taken by the respondent at any stage of the proceedings, and for this reason the Letters Patent Bench was not justified in taking up this objectio suo motu and deciding it against the plaintiff without affording him an opportunity of being heard in this behalf. The objection as raised and decided by the High Court was not a mere question of law, as the plaintiff had been asserting, as a matter of fact, that the award had been implemented and acted upon by the parties, but this particular aspect of the matter was not at all decided by the High Court by recording any positive finding before proceeding to enforce the bar contained in section 32.
9. We now proceed to consider whether section 32 of the Arbitration Act was at all attracted to this case. It will be useful to reproduce this provision of law at this stage :- "32. Notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitra--petition agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act."
10. It will be seen that the scheme of the Arbitration Act is to prevent the parties to an arbitration agitating questions relating to arbitration in any manner other than that provided by the Act. It is for this reason that the) section bars a suit concerning the existence, effect or validity of an arbitration) agreement or award. It also prohibits a suit for setting aside, amending, b modifying or, in any way, affecting an arbitration agreement or award 9ther--wise than permitted by the Act.
11. That this is the true scope of this section is borne out by the large number of foreign judgments referred to by the high Court, and we are in agreement with this interpretation.
12. However, as observed in Kashinathsa v. Narsingas (AIR 1961 SC 1077), Mohamed Yusuf v.
13. Muhammad Hussain (AIR 1964 Mad. 1) and Ch. Muhammad Saleem v. Muhammad Akram (PLD 1971 SC 516),` the section does not bar a suit which proceeds on the basis of certain acts , done by the parties after accepting the award. In such a case there is no challenge to the existence, affect or validity of the award, nor is there any move to have the award rescinded or modified.
14. From the evidence brought on the record as well as the written statement; filed by the respondent, it stands amply proved that the award had been acted upon. The trial Court has rightly observed that the respondent did not specifically deny the existence or terms of the award but merely pleaded that he had been misled into signing the arbitration agreement by the plaintiff and the clever arbitrators. The statement of Zafarullah Khan, Manager, Montgomery Central Co-operative Bank, Chichawatni who appeared as P. W. 1 at the trial, clearly established the fact that the respondent paid an amount of Rs. 568-12-0 to the appellant on 22-6-1954, that is, after the date of the award. This witness was not subjected to any cross-examination by the respondent nor was any attempt made by him to explain the nature of this payment. We have, therefore, no hesitation in accepting the position urged on behalf of the appellant that the award had been acted upon by the parties. Such being the case, the respondent was liable to ejectment from the property in suit on account of default in the payment of rent, and the suit was not hit by section 32 of the Arbitration Act.
15. It was, however, contended by the learned counsel for the respondent that the existence of the relationship of landlord and tenant between the, parties was not legally proved in this case as the award was inadmissible in evidence on account of non-registration. This argument, however, has been rightly repelled by the learned Judges of the High Court by observing that as the award was not made a rule of the Court, it did not by itself create transfer any interest in the property in suit and did not accordingly require registration. In any case, the award, even if unregistered, could be used for the collateral purpose of showing the nature of the respondent's possession, as contemplated by the proviso to section 49 of the Registration Act.
16. As a last resort, the learned counsel for the respondent submitted that the decree for ejectment could not be enforced in view of the bar contained in section 13(1) of the West Pakistan Urban Rent Restriction Ordinance, 1959, and the corresponding provisions of its predecessor legislation, commencing with Ordinance XXXIII of 1949. We are not called upon to examine this sub--mission at any length for the reason that this is a plea which might be raised in execution proceedings, but has no effect upon the validity of the decree as passed by the trial Court and upheld by the learned District Judge in first appeal.
17. For the foregoing reasons, we would accept this appeal, set aside the judgments and decrees passed in this case by the learned Single Judge and the Letters Patent Bench of the High Court, and restore the judgment and decree of the trial Court. In view of the legal questions involved, the parties are left to bear their own costs.