' This Revision challenges judgment and decree of learned Additional District Judge, Quetta dated 9-4-1988; whereby judgment and decree, making the award rule of Court passed by learned Senior Civil Judge, Quetta on 11-6-1988 was set aside.
2. Relevant facts, briefly stated are, that respondent No,1 (Nasruddin) the owner of plot bearing survey No,260 situated at Khushi Ram Road, Habit Nalla, Quetta (hereinafter referred as 'Suit Premises') leased it out to father of petitioner, who installed lathe machine over it, and is presently carrying on business in the name and style of 'Ittihad Engineering Works'. It is alleged that respondent No,2 (Jamaluddin), used to manage said property on behalf of respondent No,1 (Nasruddin), his brother. The respondents have been pressing the petitioner to vacate 'suit premises'. Ultimately to resolve considerably prolonged demand of respondents concerning ejectment of 'suit premises' an agreement was arrived at for settling their dispute through arbitration. Consequently four Arbitrators, namely, (i) Malik Abdul Khaliq, (ii) Haji Fateh Muhammad,
(iii) Muhammad Azam and (iv) Fazal Muhammad were nominated by means of agreement dated 9-8-1982, which was signed by petitioner and respondent No,2 (Jamaluddin). It is the case of petitioner that said Arbitrators made an effort to amicably settle the dispute, but ultimately announced their award on 13-10-1982 which, was however, signed by some of them on 21-10-1982.
Later, towards 26-1-1933 the award was also registered with Sub-Registrar, Quetta.
3. It may be seen that on 11-4-1983 Haji Fateh Muhammad, one of the Arbitrators, at the request of petitioner submitted an application under section 14(2) of the Arbitration Act before Senior Civil Judge, Quetta alongwith copy of award for making it rule of the Court. Notice thereof was given to parties, which was served on respondents on 17-5-1983. In pursuance of said notice, respondents filed objections on 30-5-1983, challenging validity of award on the grounds inter alia, (i) Arbitrators had no jurisdiction to deal with dispute referred to them, because it primarily pertained to ejectment, exclusively triable under the provisions of Baluchistan Rent Restriction Ordinance, 1959,
(ii) Respondent No,1, the actual owner and landlord of 'suit premises' neither signed agreement for appointment of arbitrators nor was he summoned or associated in alleged arbitration proceedings; (iii) Respondent No,2 had no authority to refer the dispute for settlement through arbitrators and (iv) Without prejudice, the Award was in excess of authority of arbitrators, besides being beyond terms of reference.
' Petitioner appeared before trial Court on 14-6-1983, and submitted an application under section 17 of Arbitration Act expressing no objection to the award and prayed for making it, rule of the Court.
Subsequently towards, 25-9-1983, petitioners also submitted replication, to objections filed by respondents, broadly repudiating the stand of opposite side. It was also averred that respondent Jamaluddin had authority to execute arbitration agreement from his brother Nasruddin, and had participated in arbitration proceedings on his behalf. It was further pleaded that respondent No,1 (Nasruddin did not challenge authority of his brother Jamaluddin at any stage, therefore, objections concerning validity of award were misconceived.
' Considering pleadings of parties, trial Court on 9-2-1984 framed following 6 issues: -
(1) Whether the matter pertains to tenancy and could not have been referred to arbitrators? O.P.O.
(2) What is the effect of non-execution of arbitration agreement by Nasruddin and is he not bound by the award? O.P.O.
(3) Whether notice of arbitration proceedings was necessary to be served on Nasruddin: If so to what effect? O.P.O.
(4) Whether the objections to the award have been filed within time? O.P.O .
(5) Whether the award in view of the objection is not liable to be made the rule of the Court? O.P.O.
(6) Relief.
' During pendency of trial respondents however approached the Court, for shifting onus of issues, but their request was declined vide order dated 15-10-1984. Record reveals that despite several opportunities given to parties, no evidence was at all adduced by either of them. Learned Senior Civil Judge examining the arguments addressed on behalf of parties dismissed the objections, raised by respondents and made the award dated 21-10-1982 rule of Court by means of judgment and decree dated 11-6-1987. Respondents were aggrieved from aforesaid decree, accordingly they preferred appeal on 23-7-1987 which came up for hearing before learned Additional District Judge-II, who on considering legal and factual aspects, accepted the same by means of judgment and decree dated 9-2-1988 thereby setting aside decree dated 11-6-1987 passed by the trial Court.
This petition is directed against above-mentioned judgment and decree of appellate Court.
4. Mr. Basharatullah learned counsel for petitioner raised following contentions; (i) concept on which first appellate Court has passed impugned judgment is factually and legally wrong.
Petitioner having failed to substantiate objections through evidence, same, according to him were rightly rejected by trial Court. Therefore, contrary view taken by learned Additional District Judge is unjustified, (ii) Authority exercised by respondent Jamaluddin, on behalf of his brother (Nasruddin) could be inferred from circumstances of the case. Besides according to contents of award said Nasruddin had participated in the proceedings before Arbitrator, as such he is estopped from challenging competency of respondent Jamaluddin to refer the matter to arbitration, or validity of award.
' Whereas Mr. Khalid Malik learned counsel for respondent emphatically opposed maintainability of petition and made following sub mission: -
(i) Agreement dated 9-8-1982, forming basis for reference to arbitrators is void, because actual owner (Respondent Nasruddin) neither signed the same nor respondent Jamaluddin was ever authorised in this behalf. Whole proceedings drawn by arbitrators are thus totally devoid of lawful authority.
(ii) Issues were of legal nature mainly based on admitted facts, needing no evidence. In the circumstances mere failure to produce evidence, cannot be deemed adverse, to the rights of respondents.
(iii) Contents of award, are clearly contradicted by assertion in rejoinder dated 25-9-1983 filed by petitioner. Besides, perusal of award shows that same was announced on 13-10-1982 whereas some of the executors signed it on 21-10-1982. Thus apparent contradictions concerning award remained unresolved on account of which same is defective.
(iv) Without prejudice, alleged agreement dated 9-8-1982 specifically mentions dispute pertaining to demand of respondents for getting vacant possession of 'suit premises'. Arbitrators had obviously no jurisdiction to consider the same in view of Baluchistan Urban Rent Restriction Ordinance, 1959. Similarly decision for sale of 'suit premises' is clearly in excess of reference, suggested in the alleged agreement dated 9-8-1982. Thus arbitrators have transgressed their authority and jurisdiction in the matter referred to them.
(v) Even if objection was not raised, by respondents, the trial Court under section 17 before confirming the award was bound to examine its patent illegalities and inherent infirmities, as rightly considered by the learned Additional District Judge-II.
' He, therefore, claimed that award be declared a nullity.
5. I have minutely considered, contentions raised by learned counsel for parties. Issue No,4 relates to limitation, for filing the objections. 'Award' filed by Arbitrator Haji Fateh Muhammad was registered on 14-6-1983 and notices to respondents were served on 17-5-1983, as also disclosed in order sheet dated 18-5-1983; whereas objections were filed on 30-5-1983 which are obviously within prescribed period. In view of this factual position, learned counsel for petitioner did not press issue of limitation.
6. Considering other limbs of the arguments it may be seen that respondent Nasruddin who is actual owner of 'suit premises' admittedly did not sign the agreement dated 9-8-1982. It is also not disputed, that respondent Jamaluddin had no written authority on behalf of his brother to refer the dispute for arbitration. Section 2(a) of Arbitration Act, defines, arbitration agreement. It specifies that agreement for referring the dispute for Arbitration must necessarily be executed in writing by the parties, or through duly authorized agents. Stress on the written agreement appears to be for the reasons that before reference to Arbitration, party should consciously apply mind to the exact nature of dispute desired to be determined through domestic tribunals of their own choice thereby depriving themselves benefit of normal law; accordingly implied authority or oral agreement has not been recognized. Therefore concept of implied authority and other principles of general law, regarding nature of agreement in violation of definition in section 2(a) of Arbitration Act, in my opinion, are not acceptable for making reference to arbitration. This view is supported by observations in the following reported judgments:-
(i) J. Jaili v . Joghi AIR 1951 Mad.
683.
(ii) Gauri Singh v. Ram Lochan and others AIR 1951 Mad.
687.
(iii) Firm Marian Dass v . Bhagwan Dass AIR 1951 All.
860.
(iv) S.M. Hanif v. Central Bank of India PLD 1970 Dacca 255.
(v) Gauri Singh v. Ramlochan Singh and others AIR 1948 Pat.
430.
' Thus considering above discussion, it is quite obvious that, respondent Nasruddin, being owner of 'suit premises' alone, was competent to refer the dispute to arbitrators. Consequently in the absence of any written agreement or express authorization by respondent Nasruddin, reference to arbitrators could not be binding against him. Since factual position that respondent Nasruddin has not signed agreement dated 9-8-1982 is unchallenged, therefore, no evidence is needed for determination of this legal aspect . Similarly Issue No,3 as already discussed is purely legal.
Therefore, mere non-production of evidence in this behalf would not be fatal. It is well settled that the party to dispute, likely to be prejudiced, should have notice of proceedings and reasonable opportunity of defence in conformity with principles of natural justice. Thus, proceedings conducted by arbitrators without issuing notice to Nasruddin are apparently invalid.
' Now reverting to question regarding nature of dispute, referred to arbitrators, the basic document is agreement dated 9-8-1982, which indicates that primarily dispute related to ejectment of plot.
Evidently arbitrators were required to decide whether demand for ejectment raised by respondents be allowed or declined. Perusal of the award discloses that arbitrators were themselves conscious about their inability to determine question referred to it. They, therefore, adverted to other aspects and probabilities of settlement including proposal for sale of property of their own initiative. There is hardly any doubt that arbitrators derive power from original agreement or terms of reference which normally provide extent of authority exerciseable by them. Thus, award should necessarily be in conformity with terms of reference, both in substance and spirit. Whenever on admitted facts or on proof of circumstances it is established that arbitrators have traversed beyond the scope of their authority, or terms of reference, the Award evidently would lose its legal sanction. In support of this view reference may be made to following reports:-
(i) Messrs Sh. Muhammad Siddiq Muhammad Afzal v. Ministry of Industries PLD 1962 Kar.
113.
(ii) Bengal Jute Mills v. Jewraj Heeralal AIR 1943 Cal.
13. Gobardhan Das v. Lachhmi Ram etc. AIR 1954 SC 689.
(iv) Prem Nath v. Union of India AIR 1958 Punj. 340, Para. 15.
(v) Gopal Choudhary and others v. Sundari and others AIR 1955 Pat.
277.
(vi) Prem Nath v. Union of India AIR 1958 Punj.
340.
(vii) The Indian Minerals Co. v. Northern India Lime Marketing Association AIR 1958 All, 692.
6. The alleged arbitration agreement dated 9-8-1982 manifestly suggests that settlement sought for, related to demand for seeking possession of 'suit premises' which is admittedly a rented land.
Question about ejectment from rented land is undisputedly regulated by the provisions of Baluchistan Rent Restriction Ordinance, 1959. It is well settled that where specific forums have been created under special enactments, reference to arbitration is not valid. For authority, reliance may be placed on the observations in following judgments:-
(i) Masood Hussain Anwar v. Sheikh Muhammad Amin 1982 CLC 1777.
(ii) Zehra Begum v. Pakistan Burma Shell Ltd. 1983 CLC 1592.
(iii) Commissioner, Income-tax Zone 'A', Lahore v. Sakina Karim 1979 CLC 644.
' It may thus, be seen that apart from inherent defects in reference, the award was clearly beyond the scope of authority of Arbitrators because dispute primarily pertained to ejectment of 'suit premises', as rightly observed by appellate Court. Even otherwise absence of signature of Nasruddin, lack of written authorization to respondent Jamaluddin and other glaring lacun in the alleged arbitration agreement, completely vitiate the reference. Therefore, on the legal and factual position discussed above, reference made to Arbitrators being invalid, all subsequent proceedings recorded by them became totally devoid of lawful authority, as such of no legal effect. In support of this view reliance can be placed on following reported judgments: -
(i) Yousuf Ali v. Muhammad Aslam Zia and others PLD 1958 SC (Pak.) 104.
(ii) Mansib All v. Amir and others PLD 1971 SC 124.
(iii) Major Syed Walayat Shah v. Muzaffar Khan and others PLD 1971 SC 184.
(iv) Rashid Ahmed v. The State PLD 1972 SC 271.
(v) Khuda Bakhsh v. Khushi Muhammad and others PLD 1976 SC 208.
7. Evidently factor's concerning objections to the validity of award are based on admitted facts- Petitioners in para 2 of replication dated 25-9-1983 have clearly conceded that respondent Nasruddin had not participated in the proceedings, asserting that his brother Jamaluddin had valid authority to appear on his behalf. Therefore, contents of award obliquely suggesting presence of respondent Nasruddin before the Arbitrators is falsified. Petitioners cannot be permitted to make a somersault from stand expressly taken by them during trial of the case. It is pertinent to reproduce below relevant assertion s: - "2. That regarding objection (c), it is to seek the attention to the Arbitration Agreement. Jamaluddin entered into the Arbitration Agreement and participated in the Arbitration proceedings on behalf of his brother Nasruddin. The fact of the matter is that at no stage of time, Nasruddin has uptil today, repudiated the proceedings. Jamaluddin held authority for and on behalf of his brother and continues to so hold."
' Besides contents of award concerning signatures of parties in their presence, are self contradicted because of unchallenged position that agreement dated 9-8-1982 does not bear signature of respondent Nasruddin at all. Factually self-contradictory and apparently incorrect averments cast serious doubt regarding propriety of award, from) which adverse inference can be safely drawn.
7. Additionally section 17 of Arbitration Act shows that decree in terms of award could be passed only when Courts find no cause to remit the award, or any of the matters referred to arbitration for consideration or to set aside the award. Therefore, before making it rule of the Court it was obligatory for trial Court to have examined basic and inherent legal infirmities of award apparent on record, and after satisfying itself about its legality and propriety to pass final order. This aspect would have been considered even suo motu as observed in case (i) Ismail v. Hans Raj AIR 1955 Raj.
153 and (ii) Hastimal Dulichand Bord v. Haripal Motichand Muthu AIR 1954 Bom. 243 and (iii) Abdul Khaleq v. Province of East Pakistan and others PLD 1964 Dacca 166.
' Thus taking into consideration above discussion, I am inclined to observe that conclusions arrived at by learned Additional District Judge No,II in the matter are quite just, fair and proper. Relevant factors have been broadly and reasonably considered and appreciated by the first appellate Court. Conclusions drawn by it are based on admitted facts which have been appropriately dilated upon and determined. Obviously Revisional Jurisdiction under section 115, C.P.C. Is limited. It cannot be invoked unless excess of authority, or exercise of jurisdiction not vesting in any forum, misexercise of jurisdiction or prescribed authority, or manifest material irregularity, grave violation of law leading to flagrant disregard of justice or arbitrary or capricious actions, are pleaded on proved facts. It cannot be exercised to foster injustice or for perpetuating any illegality merely for technical defects or procedural mistakes. Therefore, interference in the impugned judgment and decree is not warranted.
' For the foreoging reasons, petition has no merits. Same is accordingly directed to be dismissed.
' Parties are however left to bear their own costs.