1. The present petition (registered as Suit No.442 of 1985) is under section 20 of the Arbitration Act for filing of original agreement and appointment of an arbitrator in terms of the same.
2. The petitioner was allotted Shop No.227 sit4ated in Saddar Cooperative Market, Karachi on 6-1-196.1 in lieu of. Evacuee Carl No.231 elated 26-11-1956 which was issued to the petitioner as he was having a cabin on the plot on which market known as Saddar Cooperative Market was constructed by the Rehabilitation Department, Government of Pakistan. It is the case of the petitioner that in pursuance of the above allotment and payment of Rs.1,055 deposited by the, petitioner an agreement of pcrpeN4l lease, dated 6-1-1964 was executed by the authorities of the Cooperative Investment and Management Agency Ltd. Which was subsequently replaced by anther agreement of perpetual lease, dated 24-4-1969 by the Administrator of the Cooperative Development Fund established under the authority of West Pakistan Cooperative Board (Dissolution) Act II of 1966. That clause 23 of that entract provided that in case of any dispute between the parties on any matter connected with these present, or the lease decd or the interpretation of any of the clauses of the agreement or of the lease deed otherwise, the same would be referred to the Deputy Registrar, Cooperative Societies, Karachi for arbitration whose award will be final and conclusive.
3. It is the case of the petitioner that on the allegation of default in payment of rent and subletting the Project Manager cancelled the allotment by his order, dated 30-11-1977. The matter was referred to the Secretary Cooperative Department by the petitioner and sometime by the respondent No.2 who is the tenant of the petitioner. The Administrator upheld the cancellation of the allotment and confirmed the allotment in favour of respondent No.2 by order, dated 14-1-1980. A Constitution Petition No.121 of 1980 was filed in this Court. This Court by its order, dated 24-8-1981 declared the order of the Administrator as without lawful authority. The respondent No.2 filed a petition for (cave to appeal before the Supreme Court in which the leave was granted. The appeal of the respondent No.2 was accepted and the order, dated. 14-1-1980 of the Administrator was restored.
4. The case of the petitioner is that the Administrator was not competent to pass any order under the provisions of West Pakistan Cooperative Board (Dissolution) Act 11 of 195(, as laid down in PLD 1974 SC 241 and all orders passed and action taken by the Administrator being illegal ab initio and without lawful authority. It is the further case of the petitioner that the order passed by this Court and the Supreme Court arc nullity under the law and under the circumstances the above orders can be ignored.
5. It is the further case of the petitioner that in spite of the above litigation and orders of this Court and the Supreme Court, the petitioner is entitled under the law to invoke the authority of the arbitration as provided in clause 23 of the said agreement. The petitioner requested the respondent No.1 to appoint an arbitrator for deciding disputes between the parties. However, no arbitrator was appointed and therefore present petition was brought.
6. The respondent No.2 filed objections and contested the petition. The respondent No.2 pleaded that the present petition was not maintainable and was barred by limitation. The respondent No.2 further pleaded that the arbitration clause was not availed by the petitioner at any time before filing the present petition in the earlier round of litigation.
7. Mr. Akhtar Mehmood, Advocate for the respondent No.2 raised the following contentions:- (1)The petition was barred by limitation.
8. (2)Arbitration clause was not availed by the petitioner in earlier litigation and the petitioner is estopped and/or waived his right to invoke arbitration.
9. On the other hand Mr. Aihar A.I Siddiqui, submitted that the petition is within time and the cause is a recurring cause of action.
10. The learned counsel for the respondent No.2 contended that the Petition/Suit No.442 of 1985 filed by the petitioner on 30-7-1985 was clearly time--barred and the Court has no jurisdiction to refer to the arbitrator any dispute, assuming without admitting that there was one which arose on 30-11- 1977 or 14-1-1980, since the application to file an agreement in the Court would be governed according to Article 181 of the Limitation Act, 1908. According to Mr. Akhtar Mehmood, the limitation would begin to run under Article 181 when the right to apply accrues to a party and for a petition under section 20 of the Arbitration Act such right accrues when the dispute or difference arises between the parties. In the present case, the learned counsel for the respondent No.2 submitted that on the own showing of the petitioner, the dispute arose for the first time on 30-11-1977, when the allotment was cancelled by the Project Manager, this order was challenged before the Administrator who upheld the order of cancellation by his order, dated 14-1-1980. In support of this submission, the learned counsel for the respondent No.2 relied on the decision of Supreme Court in M. Imamuddin v. Thai Development Authority PLD 1972 SC 123. The Supreme Court held as under:- "Having examined these decisions with care, we, too, have come to the conclusion that, after the incorporation of Articles 158 and 178 in the First Schedule to the Limitation Act, which make specific provision for application under the Arbitration Act, 1940, it is no longer possible to say that the Articles contained in the Third Division of the First Schedule to the Limitation Act apply only to applications under the Code of Civil Procedure, because, all the other Articles contained in this Division apply to such applications. With the incorporation of Articles 158 and 178, the reason no longer holds good, and therefore, the scope of Article 181, which is in the nature of a residuary Article, must necessarily be extended to all kinds of applications for which no specific period of limitation has been provided for either in the First Schedule to the Limitation Act or in any other Statute. To hold otherwise would lead to the anomalous result that for applications which have not been expressly provided for in the Third Division of the First Schedule to the Limitation Act there will be no period of limitation at all. This could not have been the intention of the Legislature."
11. The Supreme Court, therefore, held that, in the case before it, the application contemplated under Section 20 of the Arbitration Act and, therefore, Article 181 would be attracted and inasmuch as the same was presented before the Court three years after accrual of the cause of action, the application was clearly time-barred.
12. On behalf of the petitioner, an attempt was therefore made to persuade me that limitation would begin to run according to Article 120 of the Arbitration Act and my attention was particularly invited to the provisions contained in Article 1211 which provides limitation for suit for which no period of limitation is provided elsewhere in this Schedule.
13. 1 have not been able to appreciate how this provision would be of any assistance to the petitioner since the provision appears to have been envisaged for applying the law of limitation to declaratory suit not falling under any of the Articles W, 92, 118, 119, 124 and 129 of the Act, which make specific provisions for certain classes of declaratory suits.
14. The law laid down by the Hon'ble Supreme Court in Imamuddin's case is still a good law and Article 181 of the Limitation Act applies 16 all applications. In view of the Supreme Court decision, it is no longer open to urge that petition or application under section 20 of the Arbitration Act would be governed by Article 120 of the Limitation Act The petitioner himself understood that the cause of action had arisen to him on 30-11-1977 when the allotment was cancelled; but the petition under section 20 of the Arbitration Act which was filed on.30-7-1985. The petition was filed on 30-7-1985 was therefore, clearly beyond the period of three years prescribed under section 181 of the Limitation Act.
15. Reverting to the second contention of the learned counsel for the respondent No.2 that the petitioner was debarred from filing the present petition by his own acts and conduct. In para.6 of the petition the petitioner stated that the Project Manager cancelled the allotment by his order, dated 30-11-1977. 1n para.7 the petitioner stated that the right procedure to be adopted was to refer the dispute for arbitration under section 23 of the lease agreement. However, the parties adopted wrong and illegal proceedings. The matter was referred to Administrator who held that the cancellation order was legal. The petitioner filed constitutional petition which was allowed and the impugned order was declared without lawful authority. The respondent No.2 went m appeal before Supreme' Court which appeal was allowed and the cancellation of allotment was ultimately restored. The question is whether with due care and attention the petitioner could have discovered the omission without having to wait for about 8 (eight) years. In view of the fact that in referring the matter to the Administrator and constitutional petition the petitioner himself drafted the petitions and presented them before administrator and this Court and inasmuch as he had approached the Court for quashing order.
16. It could not be successfully urged that the petitioner was prosecuting these proceedings with due care and attention. On the facts and circumstances of the present case, the petitioner under no circumstances was entitled to invoke the provisions of section 14 of the Limitation Act for the exclusion of the time spent in prosecuting the earlier proceedings.
17. The contention raised on behalf of the respondent No.2 is that the petitioner was estopped by his acts and conduct from filing the present petition. According to the learned counsel under clause 23 of the agreement the petitioner had to file petition under section 20 of the Arbitration Act. Thus, argued the counsel, that in case the petitioner was of view that the disputes had arisen on cancellation of allotment he ought to have filed the petition under section 20 instead of approaching the Administrator and this Court in constitutional petition. Having failed to take any such petition, the petitioner could not be allowed to file the present petition. Under the circumstances if the petitioner wanted to challenge cancellation of allotment, then it was obligatory upon him to file the petition under section 20 of the Arbitration ,act which remedy he did not avail.
18. Mr. Akhtar Mahmood contended that in an earlier round of litigation which ended with order of Supreme Court, dated 25-2-1985 passed in C.A. No.K--126 of 1981 filed by the respondent No.2. It was held that the Administrator could not have recalled the orders passed by the Project Director as such orders did not exist in the eye of law. The appeal filed by the respondent No.2 was allowed and the order of Administrator, dated l.1-1-1980 was restored. His submission is that the present petition for filing the original agreement was not maintainable on the ground that the orders of Administrator, High Court and Supreme Court are nullity in law. In the case of Muhammad Akhtar etc. v. Abdul Hadi etc. (1981 SCMR 878) the Supreme Court held that "it is obvious that after the aforesaid adjudication by this Court, a fresh suit to reagitate the same matter could not have been filed by the respondent which was nothing but an abuse of the process of law".
19. 1980 SCMR 596) the Supreme Court held as follows:- " .....We have given our anxious consideration to the submission of the learned counsel but find no force in it. The main thing to be taken note of is that section 11, C.P.C. (Act V of 1908) which lays down the principle of res judicata, is mandatory, and as such, a party to a former suit decided by a Court of competent jurisdiction, can avoid its provisions only by taking recourse to section 44 of the Evidence Act I of 1872, on ground of fraud or collusion or if we may add by showing that the.
20. Previous judgment was a nullity or non-existent in the eye of law. In the absence of any such thing a party cannot be estopped from pleading law as contained therein on the well-known principle that there can be no --estoppel against statute and neither any Court of law, nor any agreement can estop a party to plead law which is his "inalienable" right under Article 4(1) of the Constitution."
21. PLD 1978 Quetta 74 it was held that a transfer of a plot made in favour of the-petitioner and approved in the Writ Petition would operate as res judicata between the two contestants and the Chief Settlement Commissioner was not authorised to reopen the matter and reverse the judged issue.
22. PLD 1979 Lah. 599 it was observed that the pronouncement by the Supreme Court regarding merits of a case shall operate as res judicata even the same has been made while disposing of a matter in limine. In this case the Supreme-Court while deciding the review petition had observed that the impugned order of the Settlement Authority was a lawful order.
23. The principles laid down in the above decisions clearly show that such a ~E practice would not be permitted.
24. As a result of the above discussion I hold t at not on y pots which were taken before the Supreme Court in Civil Appeal No. K-123 of 1981 shall operate as res judicata but also the points which could not be taken and had not been taken. The principle of constructive res judicata is as much applicable to the F decision given in the Constitutional jurisdiction as in ordinary civil suits (See PLD 1970 SC 1). If the orders passed in appeal by the Supreme Court are not to attain finality, there will be no end of litigation and the present petition is a conspicuous example of the same. The fresh proceedings have been inii fated only on the ground that the parties adopted wrong and illegal procedure and in spite of the above litigation and orders of this Court and Supreme Court, the petitioner is entitled to invoke the arbitration I think there cannot be any more abuse of the process of the Court than the filing of the present petition in the circumstances of the case.
25. The case of the petitioner as set out in the petition is that all orders passed and action taken by the administrator and his subordinate authorities being illegal ab initio and without lawful authority. It is the further case that the order by this Court and Supreme Court are nullity under law. If the Courts have to decide the question of cancellation of allotment, then the power to cancel the allotment duly examined by the Supreme Court cannot be said to be nullity. The sole question before the High Court and Supreme Court was whether the order was legal or not and if a finding had been given that will operate as res judicata in all subsequent proceedings including this petition.
26. Apart from the above, I have also to consider under section 20(4) of the Act, whether or not sufficient cause against making an order that the agreement be filed. I should think that there is sufficient cause against making the order because if the agreement is now filed and arbitrator appointed, then it would amount to calling upon him to adjudicate an obviously time-barred claim of the petition. The expression `sufficient cause' is wide in meaning and imports and includes grounds of justice, equity and good conscience.
27. As a result of the above discussion, I dismiss the petition.