This application in revision calls in question the order dated 29-9-1973 6f Administrative Civil Judge, Gujranwala, refusing the prayer of the petitioner for the issuance of a temporary injunction.
2. The petitioner entered into a contract with the Forest Department for the collection of timber drifting in the River Chenab between Wazirabad and Khanki Head Works. There was some dispute between the parties consequent upon which the Divisional Forest Officer concerned stopped the petitioner from collecting timber. The petitioner approached the Commissioner, Lahore Division, for the appointment of an arbitrator in pursuance of an alleged arbitration clause in the agreement.
The --Commissioner appointed the Deputy Commissioner, Gujranwala, as the sole arbitrator and it is common ground that the arbitrator has already entered upon the reference.
3. While he was approaching the Commissioner for reference of the dispute to arbitration the petitioner filed an application under section 41, Arbitration Act, in the Court of the Administrative Civil Judge for the issuance of a temporary injunction to restrain the respondent from preventing him from collecting timber as well as for directing it to prepare a proper account of the wood collected by him and to make payment therefor. This application was rejected by the Administrative Civil Judge on the ground of competency. The learned Judge was of the view that the provisions of section 41, Arbitration Act, could be invoked only where some proceedings were pending in a civil Court. In this context he referred to a decision from the Indian jurisdiction reported as Ranjeet Chandra v. Union of India (AIR 1963 Cal. 494). It was a case where no proceedings were pending before either an arbitrator or a civil Court when the application for interim relief was made. On these facts it was held that an interim relief under section 41, could be granted only when some proceedings were pending before a Court and in the absence of such proceedings no application under the said provision was maintainable.
4. The authority cited by the Administrative Civil Judge is easily distinguishable for here it is admitted that the arbitrator has already entered upon the reference.
5. The question that falls for consideration is whether a civil Court can under clause (b) of section 41 issue a temporary injunction when no ending before it and the reference to arbitration is also proceedings are without the intervention of Court. Section 41 reads as follows :---- "Subject to the provisions of this Act and of rules made thereunder-----
(a) the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court and to all appeals, under this Act, and
(b) the Court shall have, for the purpose of, and in relation to, arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court; Provided that nothing in clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters."
A reading of this section indicates that whereas clause (a) specifies the procedure which a Court acting under-the Act may follow, clause (b) speaks of the powers of the Court with respect to arbitration proceedings. There .Are no words in clause (b) or in the entire section which may be taken as g limiting the expression `arbitration proceedings' securing in clause (b) to such proceedings to have been initiated through the intervention of a Court. The' -words `the same power' as occurring in clause (b), when read in conjunction with the words `as it has', to make it abundantly clear that clause (b) has reference to proceedings other than those which may be pending before a Court. Otherwise clause (b) will be entirely redundant as clause (a) has already provided for the procedure which a Court is to follow while exercising its functions under the Act. In the presence of clause (a) it is entirely unnecessary to confer some specific powers on a Court under clause (b), for these are already available to it under clause (a).
6. I have not been able to discover any decision from our own superior Courts in Pakistan dealing with the proposition before me. There is, however, a judgment of the Madras High Court in which this proposition has bee discussed. It is reported as S. V Seshmull v. S. N. Umaji & Co. (AIR 1962 Mad. 436). I entirely supports the view which I have taken. I should, therefore, consider that the learned Administrative Civil Judge was not justified in dismissing the application of the appellant for the issuance of a temporary injunction on the ground of competency.
7. The learned counsel for the respondent had submitted that the value of the contract which the parties had entered into was not more than Rs. 10,000 and as such the present appeal should have been preferred before the District Judge and not in this Court. In reply the learned counsel for the appellant has stated that the claim of the appellant against the respondent exceeds rupees twenty lacs and as such the District Judge had no jurisdiction to entertain this appeal. There is force in the contention of the learned counsel for the appellant for clause (c) of section 2, Arbitration Act, defines a Court in the following words :---- " Court' means a civil Court having jurisdiction to decide the question forming the subject-matter of the reference if the same had been subject-matter of a suit . . . . ."
Subsection (1) of section 39 contains the following governing clause :------- "An appeal shall lie . . . . . . To the Court authorised by law to hear appeals from the original decree of the Court passing the order . . . ."
As the claim of the appellant in the arbitration proceedings exceeds Rs. 25,000, it is plain that by virtue of subsection (1) of section 39 the first appeal could only be filed in the High Court.
Accordingly, I reject the objection of the learned counsel for the respondent.
8. For the reasons stated above, I accept this appeal and direct the Administrative Civil Judge to dispose of the appellant's application for the issuance of a temporary injunction on merits. The appellant shall have his costs in this Court.