Government of N.W.F.P. Etc. Appellants herein, invited tenders for the felling of trees and transportation of timbers thereof to the various Depot concerned for which Mohibullah, respondent herein offered higher bid which was accepted and on the deposit of security amount the necessary agreement was executed between the parties. In compliance to the same, the respondent executed the work and transported the logs to the concerned Depot in token whereof necessary entries in the field book and form `A' were made. Running bills were paid to him and the final bill was also submitted to the Department but the same was not honoured on the plea of paucity of funds. After about a year thereof the Department conducted inquiry and came to know that there was some misappropriation of timber. A show-cause notice was issued to the Contractor but without associating him with the inquiry and giving him a chance of hearing, imposed a fine of Rs.1,000 under clause 25-P of the agreement and ordered him to refund Rs.20,112.02, the price of the missing logs. The Contractor Mohibullah respondent herein, challenged this order through a declaratory suit filed in the Court of Senior Civil Judge, Mardan which was registered as No. 132/1 of 1983. Similar contracts were also entered into between the appellants and the respondents of R.SA. No.3/89, R.SA. No.4/89, R.S.A. No.5/89. R.S.A. No.6/89, R.S.A. No.7/89 and R.S.A.
No.8/89 and they too had completed the work entrusted to them, had been paid the running bills and the final bill deferred on account of lack of funds and were ultimately fined and ordered to refund the costs of missing logs through different orders which they also challenged through separate suits registered as Suits Nos. 124/1,125/1,126/1, 127/1,131/1 and 133/1.
2. All the suits were contested by the Departments-appellants. Necessary issues in the cases, keeping in view the pleadings of the parties, were framed, evidence led by the parties, pro and contra thereon, recorded and the learned trial Judge, vide his judgment and decree dated 22-2- 1988, decreed all the suits of the plaintiffs respondents. Not content with the same the Government Departments preferred appeals before the learned Additional District Judge, Mardan who, vide his judgment and decree dated 25-1-1989, dismissed them as being time-barred and also on merits.
Hence the instant Regular Second Appeals preferred by the Government etc. Challenging the concurrent findings of both the Courts below. Since common question of law and fact are involved in all the aforementioned appeals and the appellate Court too has disposed of the appeals before it through a single judgment, I consider it just and proper to dispose them of through this single judgment.
3.I have heard learned counsel for the parties and have carefully perused the record of the case with their assistance.
4.At the outset the question of maintainability of the Regular Second Appeal as per admitting note dated 15-4-1989 has to be resolved. The trial Judge passed the declaratory decrees in favour of the plaintiffs/respondents. The jurisdictional value of all the suits and appeals is admittedly less than Rs.50,000. According to section 18 of the West Pakistan Civil Courts Ordinance, as amended by N.W.F.P. Ordinance XII of 1979, an appeal from the decree or order of a Civil Judge lies to the High Court if the value of the original suit in which the decree or order was made exceeds fifty thousand rupees and to the District Judge in any other case. Consequently the appeals against the decrees of the trial Court were rightly filed before the District Judge. Sections 100, 101 and 102 of the Civil Procedure Code relate to the appeals from the appellate decrees. Section 100 narrates the grounds upon which second appeal lies to the High Court against the appellate decrees but section 102 as amended by Ordinance X of 1980 prohibits the filing of second appeal in suits when the amount or value of the subject-matter of the original suit does not exceed fifty thousand rupees. The conjoint reading of both the provisions makes it abundantly clear that practically no second appeal lies inasmuch as in the suits where the jurisdictional value is fifty thousand rupees or above, first appeal lies to the High Court and the one in B which the jurisdictional value is less than Rs.50,000 the filing of second appeal is barred a/s 102 of the C.P.C. The learned counsel for the appellants could not advance any plausible explanation for filing the instant second appeals and accordingly I have no option but to hold that they are incompetent. Anyhow a specific prayer has been made in the grounds of the appeals that if the appeal is objected to as incompetent the same may be treated as revision petition. There appear to be no legal impediment in treating them as such to which the respondents too have no objection. Accordingly they are treated as revision C petitions a/s 115 of the Civil Procedure Code and are being disposed of as such. The office is directed to enter them in the relevant register meant for the Civil Revisions.
5.The appeals filed before the appellate Court were admittedly barred by time and the appellate Court was justified to dismiss them as time-barred as no substantial cause was offered for each day's delay as per the dictum of the Supreme Court in its judgments in cases, "Commissioner of Income-Tax v. Rais Pir Ahmad Khan" reported as (1981 SCMR 37) and "Rafiq Ahmad v. Ghulam Rasool and others" reported as (1983 SCMR 17) It was in the discretion of the appellate Court to condone the delay or not. The learned counsel for the petitioners could not advance convincing reasons to justify interference with the discretion exercised by the appellate Court and the instant revision petitions merit dismissal on this score alone.
6. Nevertheless the decisions of the learned lower two forums do not suffer from any legal or factual infirmity on merits too. Qazi Muhammad Ashraf D.F.O. Still in the employment of the Government was examined as P.W. 3 who E categorically stated that, the plaintiffs/Contractors had carried out the work according to the terms and conditions of the contract which he and the other staff of the Department used to inspect regularly and signed the relevant form `A' in the field book in token thereof. The so-called inquiry report, Copy Ex. D.1/2 reveals that the Enquiry Officer found certain logs missing from the various Depots situate in Mardan Forest Division but the report is silent as to who were found responsible for the loss or misappropriation of the same. There is nothing in the report to suggest that the plaintiffs/respondents had anything to do so with the loss of the logs from the Forest Depot which are admittedly in the control and supervision of the officials of the Forest Department. The contract work entrusted to the plaintiffs respondents was restricted to the felling and transportation of the logs to the Depots and they were not burdened with any responsibility to keep watch and supervision over the stock present in the Depots. The order of the Department penalising the plaintiffs/respondents and ordering them to refund certain amounts mentioned in the orders are apparently illegal, opposed to the principle of natural justice and coram non judice and were rightly set aside by the lower two forums.
7. As regards the contention of the learned Advocate-General that the suits of the plaintiffs/respondents could not proceed in view of the arbitration clause contained in the agreement, suffice it to say that mere existence of a clause providing for arbitration does not bar the institution of a suit or other legal proceedings in Court and it only entitles a party to have the legal proceedings stayed under section 34 of the Arbitration Act. The petitioners undoubtedly did not submit application under the said provisions of law for the staying of the proceedings. It was stressed by the learned counsel for the petitioners that a specific plea was raised in the written statement to this effect which was also put to a specific issue and that the raising of the plea was by itself sufficient to stay the proceedings in the case under section 34 of the Arbitration Act. I am afraid the provisions of the law are unambiguous which ordain the submission of application for staying of the pending proceedings and that too before the filing of the written statement or taking any other steps in the proceedings. It is a well --established principle that if by an enactment something is required to be done in a particular manner then it has to be done in that way and in no other way. Intention of the legislature in enacting section 34 of the Arbitration Act obviously is that if any party to the judicial proceedings wants the dispute to be adjudicated upon through arbitration, they must express not only their desire before the Court but submit an application for staying of the proceedings in the said Court. In the absence of any such application the trial Court was not barred to proceed with the case particularly when the defendant filed written statement and started taking part in the proceedings. The concurrent findings of the learned lower two forums in this respect do not suffer from any jurisdictional error or legal infirmity.
8. The upshot of the above discussion is that there is no merit in the instant revision petition and the same is accordingly dismissed. The connected C.R. Nos. 245, 246, 247, 248, 249, 250 and 251 of 1990 are also dismissed.