' This petition under section 115, C.P.C. Seeks revision of the judgment of the Additional District Judge, Sargodha dated 10-9-1989 affirming the judgment of the Senior Civil Judge, Sargodha dated 31-3-1988.
2. The dispute arises out of an application filed by the petitioner in the Civil Court at Sargodha praying that the arbitration award dated 10-11-1982 of Ch. Mirza Khan and Muhammad Yar arbitrators (respondents Nos. 2 and 3) be made rule of the Court. The application was contested by respondent No, 1 on the plea that there was no arbitration agreement between the parties and the petitioner has never agreed to refer any dispute to arbitration. It was also pleaded that at the time when the arbitration agreement was alleged to have been executed by the parties as also when the award was delivered by the Arbitrators, various civil suits with regard to the matters in dispute were pending and as such no reference to arbitration could be made except with permission of the Court. The trial Court framed the following issues arising out of the pleadings of the parties:--
(1) Whether the petitioner and respondent No, 1 appointed respondents Nos. 2 and 3 as Arbitrators through Iqrarnama dated 26-10-1982 for solving this dispute? O.P.A.
(1-A). Whether the arbitration agreement and award in dispute are illegal and void on the ground narrated in para. 5 of the preliminary objection of the reply? O.P.R.
(2) Whether petition is frivolous and respondent is entitled to special costs.?
(3) Relief.
3. On the basis of the evidence led before him, the learned Senior Civil Judge, Sargodha held that the petitioner had failed to prove that there was any arbitration agreement between the parties. It was also observed that admittedly the dispute which was allegedly referred to the arbitrators was the subject-matter of civil suits pending between the parties and as such the award was void. The trial Court dismissed the application filed by the petitioner and refused to make the award rule of the Court.
' Aggrieved by this decision the petitioner filed an appeal which was dismissed by the Additional District Judge who affirmed the findings of the trial Court on all the issues. Hence this revision.
4. Raja Mahmood Akhtar, learned counsel for the petitioner submitted that the view taken by the Courts below that in the absence of any permission by the Court where the suit between the parties was pending the matter could not be referred to the Arbitrators and the award rendered by them was void, is contrary to law. The learned counsel also submitted that once respondent No, 1 had agreed to refer the matter to the arbitration, she could not be allowed to resile from it. Reliance has been placed upon Subbaraju v. Venkatramaraju AIR 1928 Mad. 1025; Chellemmal v.
Muthulakshmi Ammal AIR (32) 1945 Madras 2% and Salima Bibi v. Muhammad Ibrahim AIR 1962 Andh.Pra. 123; Ch. Muhammad Saleem v. Muhammad Akram and others PLD 1971 SC 516. The learned counsel urged that the findings recorded by the Courts below that the arbitration agreement was not executed by the respondent are contrary to the evidence on the record.
5. As regards the question as to whether the arbitration agreement Exh. A-1 was executed by the respondent, there are concurrent findings of fact recorded by the two Courts below which are not liable to interference in the exercise of revisional jurisdiction of this Court. While deciding issues Nos.
1 and 1-A against the petitioner, the trial Court as well as the Additional District Judge took the view that the marginal witnesses of the document (Exh. A-1) had not been examined by the petitioner nor reasons for not doing so have been explained. This finding cannot be said to be either arbitrary or capricious so as to warrant interference by this Court.
6. Reverting to the question as to whether the agreement between the parties and the award rendered by the Arbitrators was violate of the Arbitration Act, 1940, there is no dispute between the parties, that at the relevant time, the same matter was subjudice before the Civil Court.
' Section 47 of the Arbitration Act, 1940 provides that: "Subject to the provisions of section 46, and save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder: ' Provided that an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending."
By virtue of this provision, the Act has been made applicable to all arbitrations. Chapter IV of the Arbitration Act, 1940 deals with arbitrations in a pending suit. According to section 21, the parties can apply for an order to refer disputes to arbitration and the Court where the suit is pending has been empowered by section 23 to make a reference to the arbitration. Any reference to arbitration without the intervention of the Court where the suit is pending with regard to the same subject- matter would be violative of sections 21, 23 and 47 of the Arbitration Act, 1940. However, under proviso to section 47 the arbitration award can be utilised as a compromise or adjustment of the suit by Court but this is subject to the condition that all the parties interested consent to it. This question was examined in detail, if I may say so with respect, by my learned brother Muhammad Afzal Lone, J. In Mst. Hashmat Bibi v. Muhammad Rafi and another 1980 CLC 967 wherein it was held that the award procured in a pending suit without the intervention of the Court was a nullity and could not be made rule of Court in accordance with the provisions of sections 14 and 17 of the Act except that in a case covered by the proviso, it can be made use of as a compromise. It was further observed that without the consent of the parties the award could not be considered even as an adjustment of the suit. This view was reaffirmed by this Court in Hashmat All v. Muhammad Ali etc. 1982 CLC 2377. I am not persuaded to take a different view.
7. The reliance of the learned counsel on Ch. Muhammad Saleem v. Muhammad Akram and others PLD 1971 SC 516 is not apt as this authority has no applicability to the controversy in hand. The dispute before the Supreme Court in that case was as to whether the parties were entitled to sue or defend on the basis of an award rendered in arbitration out of Court and made not rule of Court, if it had been acted upon by them by mutual consent and whether section 32 of the Arbitration Ad, 1940 bars filing of such a suit. The other dispute in the precedent case was as to whether the reference was to an Arbitrator or mediator. These questions do not arise for determination in the present case.
8. As regards the decision in Subbaraju v. Venkatramaraju AIR 1928 Mad. 1025, it is to be noticed that this judgment was delivered prior to coming into force of the Arbitration Act, 1940 and under the law in which there was no provision parallel to section 47 of the Arbitration Act, 1940. This judgment is, therefore, of no assistance at all. The other case relied upon by the learned counsel for the petitioner, namely, Chellemmal v. Muthulakshmi Ammal AIR (32) 1945 Mad. 2% was influenced by the decision of the Full Bench of the Madras High Court in Subbaraju's case supra and does not in any manner lend support to the argument of the learned counsel for the petitioner, for, the dispute in that case was as to whether the consent envisaged by proviso to section 47 has been simultaneous or whether antecedent consent can be taken into consideration. Be that as it may, this judgment was expressly dissented from by this Court in Hashmat Bibi v. Muhammad Rafi and another 1980 CLC 967. Similarly the view taken in Salima Bibi v. Muhammad Ibrahim Saheb AIR 1962 Andh. Pra. 123 is of no assistance as the dispute in that case was also as to whether the award accepted by all the parties could be taken notice of as a compromise or adjustment of a suit within the meaning of Order 23 Rule 3, C.P.C. This question does not arise in the present case.
9. It was next submitted that in any case the award could be taken note of and utilised as a compromise between the parties and for this reason also the application filed by the petitioner could not be dismissed. In this connection, it is to be seen that the application filed by the petitioner before the trial Court was for making the award rule of Court. The question as to whether award could be made use of as a compromise in the suit was not as such in issue before the Courts below and need not be adverted to in the present proceedings. It may, however, be mentioned that under Order 23 rule 3, C.P.C. The matter can be decided in terms of the agreement, if it is not contrary to any law.
' For the foregoing reasons, this petition has no force. It is accordingly dismissed in limine.