' This will dispose of Civil Revision No,1537-D of 1988 by Muhammad Yousaf, Muhammad Hussain and Arshad and Civil Revision No,1486-D of 1988 by Abdul Hameed. They have arisen in the following circumstances.
2. Nazir Ahmad, respondent, a resident of Chak No,202/RB, complained to the police that the petitioners, Muhammad Yousaf, Muhamamd Hussain, Muhammad Arshad and Abdul Hameed, residents of the same village, had, by putting sand in the engine of his tractor, damaged it. The police was investigating the case when the parties, according to Nazir Ahmad, respondent, agreed to refer the dispute to the sole arbitration of Muhammad Bashir Randhawa, a resident of Lassori Shah. The latter gave his award on 24-3-1983; he found the petitioners responsible for having caused damage to the tractor's engine and directed them to pay Rs,18,000 to the respondent, Nazir Ahmad.
3. On 16-5-1983, Nazir Ahmad, respondent, made an application under section 14 of the Arbitration Act asking for a direction to the arbitrator to file the award in Court. It is common ground between the parties that notices sent to the petitioners were not served upon them. Yet they appeared in Court on 4-1-1984; the petitioners, Muhammad Yousaf, Muhammad Hussain and Muhammad Arshad, filed their written statements on 12-1-1984 and the petitioner, Abdul Ha meed, filed his written statement on 18-2-1984. Later, on 10-6-1984, Abdul Hameed also filed an application under section 33 of the Arbitration Act praying for the award to be set aside. While the case of the petitioners, Muhammad Yousaf, Muhammad Arshad and Muhammad Hussain, was that they had not agreed to refer their dispute to the arbitration of Muhammad Bashir Randhawa and their signatures on the agreement had been obtained by the police by coercion and undue influence, the case of Abdul Hameed, petitioner, was that the agreement did not bear his signatures and he was not a party to the agreement.
4. On the parties' pleadings, the learned trial Judge formulated seven issues; by his judgment dated 29-10-1987, the learned trial Judge found all the issues in favour of Nazir Ahmad, respondent; simulataneously he dismissed the application under section 33 of the Arbitration Act of Abdul Hameed, petitioner, and made the award the rule of the Court.
5. The petitioners appealed and the learned Additional District Judge, Faisalabad, dismissed their appeals, the appeal of the petitioners, Muhammad Yousaf, Muhammad Hussain and Muhammad Arshad, on the ground that they had not filed any application under section 33 of the Arbitration Act and that "they were precluded from filing such an appeal against the order and decree", and that of Abdul Hameed, petitioner, on the ground that though he had filed a separate application under section 33 of the Arbitration Act, yet that application was "patently barred by time and was liable to be dismissed at the very outset, hence the right of Abdul Hameed to file present appeal disputing the legality of award on almost similar grounds also becomes doubtful". In the view of the learned Additional District Judge, therefore, "there is no such objection on behalf of Abdul Hameed" and, therefore, the award had become final.
6. Learned counsel for the petitioners, Muhammad Yousaf, Muhammad Hussain and Muhammad Arshad, contended that the learned Additional District Judge was in error in treating the appeals before him as appeals against a decree under section 17 of the Arbitration Act; according to him, the petitioners had filed a written statement within 30 days of their coming to know of the award and their written statement was an objection petition within the meaning of section 33 of the Arbitration Act, for, in that written statement, they had taken grounds challenging the existence and validity of the arbitration agreement. Learned counsel argued that as the learned trial Judge had decided their objection petition and had made the award the rule of the Court by one judgment, the petitioners had a right of appeal against that composite judgment under section 39 of the Arbitration Act, for, the judgment of the learned trial Judge amounted to refusing to set aside the award on the grounds set out in the written statement. Learned counsel for Abdul Hameed, petitioner, adopted these arguments. As to the additional ground of limitation which weighed with the learned Additional District Judge as regards him, learned counsel referred to Section 33 of the the Arbitration Act and advanced the view that that section gives a right to challenge the existence or validity of an arbitration agreement or an award to "any party to an arbitration agreement or any person claiming under him" and as the petitioner, Abdul Hameed, had not signed the agreement and was not a party to it, Article 158 of the Limitation Act did not apply to him. Learned counsel for the respondent, Nazir Ahmad, on the other hand argued that it was a case squarely falling under section 17 of the Arbitration Act and, therefore, the learned Additional District Judge rightly held that the appeals were not competent. In his view, the objection petition as also the written statement filed by Abdul Hameed, petitioner, before the learned trial Court were on the face of them barred by time and the learned Additional District Judge, therefore, rightly took notice of the question of limitation as he was required to do by section 3 of the Limitation Act
7. Having heard the learned counsel for the parties, I am of the view that the contentions raised by the petitioners' counsel are entitled to succeed. When a party to an arbitration agreement approaches the Court under section 14 of the Arbitration Act for a direction for the award to be filed in Court, the Court is by section 14, subsection (2) of the Arbitration Act, required to give notice to the parties of the filing of the award. Thus, an application under section 14 of the Arbitration Act is not a plaint; nor is there any provision in the Arbitration Act requiring the respondent in the application under section 14 to file a written statement as a defendant in a suit governed by the Code of Civil Procedure is required to do. And when a party has been served with a notice under section 14, what he can do is to appear in Court and to confess judgment or file an application under section 33 challenging the existence or validity of the arbitration agreement or award or to have the effect of either determined. Whether a party has filed an application purporting to be an application under section 33 of the Arbitration Act or a written statement, the real question is whether the application or the written statement is in substance an application challenging the existence or validity of the arbitration agreement or award. If it is, then there is no reason why the written statement merely because it does not purport to be an application under section 33 should not be treated as an application under that section. The Arbitration Act does not prescribe the form in which an application under section 33 should be made. However that may be, if the written statement is in truth an application under section 33, then not to treat it so would be giving effect to the form than to the substance. This view receives support from two cases from the Indian Jurisdiction, namely, Ram Alam Lal and others v. Dukhan and others (AIR (37) 1950 Allahabad 427) and Gauri Singh v. Ramlochan Singh and others (AIR (35) 1948 Patna 430) and I respectfully adopt the view taken in those cases. There is also authority for the view that where the application under section 14 and the objection applicatioon under section 33 of the Arbitration Act are decided by the trial Court by the same judgment and the trial Court has refused to set aside the award, then the defendant has a right of appeal under section 39 of the Arbitration Act. The reason is, as was held in Muhammad Ramzan and another v. Nazir Ahmad and 2 others (1979 CLC 95), that a decree cannot be challenged under section 17 on the ground that the award deserved to be set aside. "The reason for creating this bar is obvious. Before the stage of passing a decree is reached, objections can be raised against an award, and if the objection petition be dismissed, an appeal against such dismissal is provided under section 39 of the Arbitration Act. Therefore, an award cannot be allowed to be challenged twice, once by filing an appeal against the order of dismissal of the objection petition, and subsequently again after a decree is passed in terms of the award. The Legislature having provided in section 39 of Arbitration Act for an appeal against an order of refusal to set aside the award, it a stage prior to the passing of the decree, had to prohibit the reagitation of the same matter at a stage after the passing of the decree". I am, therefore, of the view that the learned Additional District Judge should have treated the appeals before him as appeals against an order refusing to set aside the award on the grounds stated in the written statement of the petitioners.
8. As by the award, all the petitioners were jointly held liable for payment of Rs,18,000 and the matter, as regards Muhammad Yousaf, Muhammad Hussain and Muhammad Arshad, petitioners, is being sent back to the learned Additional District Judge, it is undesirable to say anything on the question of limitation as regards Abdul Hameed, petitioner. The question of limitation was not raised before, and decided by, the learned trial Judge. Be that as it may, under section 33 of the Arbitration Act, the right to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined vests in a party to arbitration agreement and it may well be that the question of limitations has to be decided with reference to whether the petitioner, Abdul Hameed, was or was not a party to the arbitration agreement. The best course, therefore, is to leave this question also to be decided afresh by the learned Appellate Court.
9. For these reasons, the petitions are accepted, the judgments and decrees of the learned Additional District Judge are set aside and the case is sent back to the learned Additional District Judge for its decision afresh in accordance with law. The parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.