' AJMAL MIAN, J.--Leave to appeal was granted to consider the questions, whether Mr. Said All Shah, whose appointment as a standing counsel as per appellant was terminated on 10-10-1982, was competent to receive a notice under section 14(1) of the Arbitration Act of the filing of the award on behalf of the appellant, and, whether Rule 4 of Order XXVII would override Rule 5 Order III, C.P.C., arising out of the judgment dated 9-2-1986 passed by a learned single Judge of the Lahore High Court in Civil Revision No,2037 of 1985, whereby the order dated 15-6-1985 passed by the learned Civil Judge, 1st Class, Lahore, was set aside and it was held that the appellants' objections to the award filed by them were time-barred and the case was remanded to the learned Civil Judge to proceed further with the case according to law.
2. The brief facts are that the appellants awarded a contract to the respondent to construct toilets etc. It appears that during the execution of the contract work certain dispute arose between the parties, which was referred to the named Arbitrator, who gave an award for a sum of Rs,49,600 which amount was paid by the appellants to the respondent. However, upon the completion of the construction work, the respondent filed an application under section 20 of the Arbitration Act, hereinafter referred to as the Act, in the Court of Civil Judge on 23-4-1979. The above application was resisted by the appellants inasmuch objections were filed on 24-4-1979 through Mr. Said Ali Shah, Advocate. However, the learned Civil Judge after hearing the parties allowed the above application and referred the matter to the Arbitrator, who gave an award on 13-9-1983 for a sum of Rs,4,83,523 plus 14% interest thereon. The above award was filed in terms of section 14 of the Act in the Court of Civil Judge, Lahore, who issued notice dated 14-9-1983 for 9-10-1983 to the parties intimating about the filing of the award in terms of the above section 14 of the Act. It appears that Mr. Said Ali Shah, Advocate, who had appeared on behalf of the appellants in the aforesaid application under section 20 of the Act and was standing counsel, received the above notice on 1- 10-1983 without a copy of the award. The objections on behalf of the appellants were filed by Mr. Muhammad Naqi, Advocate, on 8-11-1983. Thereupon, the respondent filed objection to the effect that the above objections to the award were barred by 8 days. The learned Civil Judge framed the following issue:- ' Whether the statutory period of limitation for filing objections to the award has expired?
' After recording the evidence and after hearing the parties by his order dated 15-6-1985 held that the objections were within time on the ground that Mr. Said Ali Shah's appointment as a standing counsel had been terminated before he received the aforesaid notice under section 14(2) of the Act and that he should have informed the Court about it. It was also held that a notice sent to the General Manager of the appellant and received by him on 15-9-1983 was of no legal effect as the notice should have been addressed to the Chairman. The respondent being aggrieved by the aforesaid order filed aforesaid civil revision, which was allowed by a learned Single Judge of the Lahore High Court on the ground that Mr. Said Ali Shah, Advocate, could not have withdrawn from the case without the permission of the Court in terms of Order III, Rule 4, C.P.C. And that Mr. Said Ali Shah was never appointed as a Government Pleader in terms of Order XXVII. The case was remanded to the learned Civil Judge as observed hereinabove. Thereupon, the appellants obtained leave to appeal against the above judgment to consider the above questions.
3. Mr. Fazal-i-Hussain, learned A.O.R. Appearing for the appellants, has urged as follows:--
(i) that a notice under section 14(2) of the Act can only be served on the parties and not on their lawyers and, therefore, in the present case the notice was in violation of the above provision;
(ii) that in view of special provision contained in Order XXVII, C.P.C., the general provision contained in Order III, C.P.C. Could not have been pressed into service by the High Court and once it was proved that on 10-10-1982 Mr.Said Ali Shah's appointment as a standing counsel was terminated by the appellants, the service of the notice under section 14(2) of the Act could not have been held to be valid;
(iii) that the High Court acted illegally by disposing of the civil revision petition after notice to the parties at the Katcha Peshi stage without examining the case thoroughly; and
(iv) that the equity is on the side of the appellants and this Court does not allow technicalities for defeating the cause of justice. On the other hand, Mr. K.M A. Samdani, learned Senior Advocate Supreme Court appearing for the respondent, has urged as under:--
(i) that the service of a notice under section 14(2) of the Act on the counsel of a party is a good service;
(ii) that even if it is to be assumed that the Order XXVII, C.P.C. Was applicable in the present' case, which was not in fact applicable, there is no inconsistency between the above provision and Order III, C.P.C. And, therefore, Rule 4(2) of the above Order III would be attracted to;
(iii) that the question of limitation is not a matter of technicalities but is a substantial question of law which involves taking away the vested rights of a party which had accrued to him on account of the omission/failure on the part of the other party to file the legal proceedings within the statutory period;
(iv) that even if it is to be considered that Mr. Said Ali Shah had ceased to be the standing counsel of the appellant with effect from 10-10-1982, it would not result into withdrawal or termination of Vakalatnama or his right to continue to appear in the case; and
(v) that even if there was any negligence or omission on the part of Mr.Said Ali Shah, the remedy of the appellant is to sue him but the respondent cannot be made to suffer on that account.
4. The basic question in issue is, as to whether at the relevant time Mr. Said Ali Shah, Advocate, was competent to accept the service of the notice of the filing of the award under section 14(2) of the Act. In this regard, it may be pertinent to observe that the learned Civil Judge on the above question concluded as follows:-- The evidence of Mr. Said Ali Shah, Advocate is also of not much confidence and there are much contradictions in his statement, however, one thing is established that his contract as standing counsel, Pakistan Railway had been terminated before he received the notice from the Court. If the power of attorney filed by him from the Pakistan Railway has not been cancelled by the Department, it was also his duty to inform the Court that he was no more counsel of the Pakistan Railway i.e, respondent and he was not authorised to act to behalf of Railway on that date. It is a mere technical lacuna that the respondents did not inform the Court of having cancelled his power of attorney. If the learned counsel Mr. Said Ali Shah would not have been in knowledge of it then the matter would have been different."
' Whereas the finding recorded by the High Court is as under:-- ' Nowhere in these notifications, nor indeed in anyone else Mr. Said Ali Shah, Adv., was appointed as a Government Pleader. Conversely he was engaged only as a standing counsel under the general provisions of Order III, rule 4, C.P.C. Which will govern his engagement. He could not withdraw unless the Court permitted him. On the relevant date his engagement in law was operative. If really he had been removed, it behooved him to have had indicated in the endorsement made by him on the back of the notice that he nor more represented the respondent. On the contrary, he accepted notice and subsequently even appeared before the Court where too he did not point out that his services as standing counsel had already been terminated by the respondent. At all material stages he had been holding himself out to be an agent for the respondent and, therefore, receipt of notice on his part on 1-10-1983 was quite effectual so as to make limitation run from this date for computing thirty days allowed for filing objections to the award."
5. In order to appreciate the controversy, it may be pertinent to refer to the relevant, provisions of the Civil Procedure Code, 1908, hereinafter referred to as the Code, namely, section 2(7), Order III, Rules 3 and 4, Order V, Rule 12, and Order XXVII, Rules 2, 4 and 8-B, which read as follows:-- ' Section 2(7) C.P.C.
"2(7) "Government Pleader" includes any officer appointed by the Provincial Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any Pleader acting under the directions of the Government Pleader:"
' Order III. Rules 3 and 4 "3. Service of process on recognized agent.- -(1) Process served on the recognized agent of a party shall be as effectual as if the same had been served on the party in person, unless the Court otherwise directs.
(2) The provisions for the service of process on a party to a suit shall, apply to the service of process on his recognized agent.
4. Appointment of pleader.--(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-ofattorney to make such appointment.
(2) Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.
(3) For the purposes of sub-rule (2) an application for review of judgment, an application under section 144 or section 152 of this Code, any appeal from any decree or order in the suit and any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or for obtaining refund of moneys paid into the Court in connection with the suit shall be deemed to be proceedings in the suit.
(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by order.
(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating--
(a) the names of the parties to the suit,
(b) the name of the party for whom he appears, and
(c) the name of the person by whom he is authorised to appear: Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party."
' Order V Rule 12 C.P.C.
"12. Service to be on defendant in person when practicable or on his agent.- -Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient."
' Order XXVII Rules 2, 4 & 8-B "2. Persons authorised to act for Government. Persons being ex officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be the recognized agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government.
4. Agent for Government to receive process.--The Government pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court.
8-B. Definitions of "Government" and "Government Pleader". In this Order "Government" and "Government pleader" means respectively:--
(a) in relation to any suit by or against the Central Government or against a public officer in the service of that Government, the Central Government and such pleader as the Government may appoint whether generally or specially for the purposes of this Order.
(b)xxxxxxx x x x x
(c) in relation to any suit by or against a Provincial Government or against a public officer in the service of a Province, the Provincial Government and the Government pleader, or such other pleader as the Provincial Government may appoint, whether generally or specially for the purposes of this Order."
5. A perusal of the above-quoted definition of the term "Government pleader" indicates that it includes any officer appointed by the Provincial Government to perform all or any of the functions expressly imposed by the Code on the Government pleader and also any pleader acting under the directions of the Government pleader. It may be pertinent to point out here that under Rule 8-B of Order XXVII, the Government pleader in relation to any suit by or against the Central Government or against a public officer in the service of the Government it has been provided that the Government may appoint such pleader whether generally or specially for the purpose of the above Order XXVII.
It may further be observed that Rule 3 of Order III provides that the process served on the recognized agent of a party shall be as effectual as if the same had been served on the party in person unless the Court otherwise directs. It also provides that the provision for the service of process on a party to a suit shall apply to the service of process on his recognised agent. Whereas Rule 4 of the above Order III contemplates filing of a document signed by the party appointing the pleader (i.e, Vakalatnama or memo of appearance in terms of Order XXVII). It further provides that such an appointment once filed in the Court shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader as the case may be or until the client or pleader dies or until all proceedings in the suit are ended so far as regards the said client. It may further be noticed that Order XXVII deals with the procedure in respect of suits by or against Government or public officers in their official capacity. Rule 2 provides that the persons being ex officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be recognized agents by whom appearances, acts and applications under the Code may be made or done on behalf of the Government. Whereas rule 4 of the above Order lays down that the Government pleader in any Court shall be the agent of the Government for the purpose of receiving process against the Government issued by such Court. It may again be observed that Rule 8-B of the above Order gives the definitions of the words "Government" and "Government pleader" in relation to the Central and Provincial Governments which has already been referred to in respect of the Central Government hereinabove.
6. From the above provisions of the Code, it is evident that a Government pleader or anybody appearing on behalf of the Government or even on behalf of a private party can receive the process on behalf of his client. There seems to be no distinction between an Advocate appearing on behalf of a Government or on behalf of a private party as to the acceptance of the process.
Even in above Rule 4 of Order XXVII it has been expressly provided that the Government pleader shall be the agent for the Government for the purpose of receiving process against the Government issued by the Court. In this view of the matter, even if we were to hold that the provisions of Order XXVII were applicable to the present case, it would not make any difference as to the authority of Mr. Said Ali Shah, Advocate, to receive the notice from the Court on behalf of the appellant. The factum that an Advocate appearing for a private party has to file a Vakalatnama, whereas an Advocate appearing on behalf of a Government has to put in memo of appearance, in our view does not alter the status of the Advocate as being agent for accepting the process or for continuing to appear in the case till the time under sub-rule (2) of Rule 4 of Order III of the Code, the Vakalatnama or the memo of appearance is withdrawn with the permission of the Court. We may again observe that sub-rule (1) of Rule 4 of Order III speaks of filing of a document in writing signed by the person appointing an Advocate. It does not refer to a Vakalatnama. The word "document' is of vide connotation and will include a Vakalatnama as well as a memo of appearance which is filed by an Advocate on behalf of a Government. In the present case, the learned Civil Judge overlooked the above provisions of the Code while concluding that Mr. Said Ali Shah, Advocate, had ceased to be an Advocate acting on behalf of the appellant. The fact that the appellant had terminated the appointment of Mr. Said Ali Shah, Advocate, by a letter dated 10-10- 1982 was of no consequence as far as the Court was concerned. He continued to be the Advocate for the appellant notwithstanding the above termination as admittedly in terms of sub-rule (2) of Rule 4 of Order III of the Code, the memo of appearance was not withdrawn either by the appellant or by Mr. Said Ali Shah with the permission of the Court. The finding recorded by the High Court on the above question, seems to be in consonance with law. If any authority is needed in support of the above conclusion, reference may be made to the case of Abdul Latif v. Jamal Din 1979 SCMR 183 and the case of Mst. Qamar Sultana alias Qamarunnisa v. Abdul Hussain and another PLD 1982 Kar.
355.
'We may observe that though subsection (2) of section 14 of the Act refers to the service of the notice upon the parties, but this will include their authorized agents in terms of the above provisions of the Code. In this regard, reference may be made to the case of The Chairman, Railway Board, Lahore and 2 others v. Hafiz Abdul Qayyum PLD 1984 Pesh. 285, the case of Province of West Pakistan (Punjab) through Secretary, Irrigation and Power Department and another v. Mian Abdul Hamid & Co. 1985 CLC 1170, and the case of Nilkantha Sidramappa Ningashetti v. Kashinath Somanna Ningashetti and others AIR 1962 SC 666, in which it has been held that notice under section 14(2) of the Arbitration Act can be given even orally by the Court t, the Advocates for the parties.
7. Mr. Said Ali Shah, Advocate, as per his statement recorded by the Civil Judge has not intimated to the Court that his appointment as a standing counsel of the appellant was terminated on 10-10- 1982. It was contended by Mr, Samdani that termination of the appointment of Mr. Said All Shah as a standing counsel did not result into termination of his appointment as an Advocate in the case in hand in view of the aforesaid provision of Order III Rule 4(2) C.P.C. This seems to be the correct position as we have already held hereinabove. It was also contended by Mr. Samdani that even if there was any negligence or misconduct on the part of Mr. Said Ali Shah, Advocate, the remedy, if any, available to the appellant was to take action against him. Reliance was placed on the case of Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1984 SCMR 890 and the case of Mirza Muhammad Saeed v. Shahab-ud-din and 8 others PLD 1983 SC 385.
' In our view, it is not necessary to record any finding whether Mr. Said Ali Shah, Advocate, was negligent. However, we find that at the bottom of the copy of the award contained in paper book Part-II at page 43, Mr. Said Ali Shah, Advocate, had made the following endorsement:-- "L.O. This copy of the award was put into my hands on 9-10-1983 in the Court of the Senior Civil Judge, Lahore, by the Counsel of the plaintiff/petitioner. I attended the Court on receipt of a notice from the Court issued in my name pl. Mr. Naqi R.C.L. Contacted me in Court after the date once in this matter but has not contacted me thereafter, though he had promised to collect this award from me. Next date fixed is 5-11-1983 p1. In my opinion there is no use of filing objections where the Arbitrator was appointed by the Railway pl.
(Sd.)
Said Ali Shah, Advocate."
' If the above endorsement is correct, it can be urged by Mr. Said Ali Shah that he had discharged his obligation.
8. We are, therefore, of the view that the notice under section 14(2) of the Act served on Mr. Said Ali Shah on 1-10-1983 by the Court about the filing of the award was legal and binding on the appellant.
' It was also contended by Mr. Fazal-i-Hussain, learned A.O.R. For the appellant, that the copy of the award was furnished on 9-10-1983. This fact has not been refuted. The question, therefore, arises, whether we can treat 9-10-1983 as terminus a quo i.e, the starting point for computing the period of limitation. If this can be done, objections to the award would be within time as they were filed on 8- 11-1983. Though Mr. Fazal-i-Hussain has referred to the above fact in his arguments, but he has not cited any judgment in support thereof. However, on further examination of the above question, we found that subsection (4) of section 12 of the Limitation Act expressly provides that the time requisite for obtaining a copy of the award shall be excluded. In this behalf reference may be I made to the following cases:--
(i) K.Y.Subbiah v. Commissioner of Police, Rangoon and another (AIR 1933 Rang. 39).
(ii) Velankayala Chendrayya v. Bobbili Appalamma (AIR 1932 Mad. 588).
(iii) Soya Chand Bhutoria v. Hury Bux Deora and others (AIR 1919 Cal. 224).
(iv) Najm-ud-Din Ahmad v. Albert Puech (29 IC 584).
9. In the above four cases, the Rangoon, Madras, Calcutta and Allahabad High Courts (first two cases were decided by Single Benches and the last two cases by Division Benches), it has been held that the time requisite for obtaining a copy of the award for filing objections is to be excluded under section 12 of the Limitation Act. We may point out that the above provision refers to the time requisite for obtaining of a certified copy of the order/judgment/award. In the present case the appellant had not applied for a certified copy of the award, but their. Advocate was furnished with a copy of the award voluntarily by the Advocate for the respondent and, therefore, section 12(4) of the Limitation Act cannot be pressed into service.
10. It was also urged by Mr. Fazal-i-Hussain that after the passing of the judgment by the High Court, the learned Civil Judge acted in haste inasmuch as he made the award rule of the Court within 10 days and then issued attachment order attaching the Head Office of the Railways at Lahore. As the above point is not in issue before us, we would not like to comment upon the same.
However, we may observe that under section 17 of the Act, it is the duty of the Court to examine, whether there was any reason for modifying of the award or for setting aside the award notwithstanding that an affected party may have failed to file objections to the award on account of the expiry of the limitation period or the j parties to the arbitration proceedings may be in collusion and because of that, they may not file any objection to a collusive award. If any authority is needed, reference may be made to the case of Union of India v. Pratap Chandra Biswas AIR.
1964 Assam and Nagaland 141, in which a Division Bench of the above High Court held that there is nothing in section 39 or any other provision of the Act to show that the Court can refuse to set aside an award only on an application made by a party but from a bare reading of section 17, it is clear that 'even the Court can suo motu set aside an award. Reliance was placed on, the case of Chhabba Lal v. Kallu Lal and others AIR (33) 1946 PC 72. We are inclined to hold that in a fit case, the Court may on its own under section 17 of the Act K modify or set aside the award if the facts and dictates of justice so demand.
11. In the present case we have noticed that the respondent in his application under section 20 of the Act on the basis of which reference to the sole arbitrator was made and in which case the award was filed made following averments in para.8 as to the value of their claim:-- "8. That for purposes of jurisdiction the value of this application is fixed at Rs, 2,65,000 and court-fee of requisite amount is affixed."
' However, the Arbitrator has awarded a sum of Rs, 4,83,523. The latter amount includes Rs, 3,21,510 under claim No, 5 as the amount of business loss for the period from 12-8-1974, on Rs, 1,57,510 being the total amount of four items of claims i.e, claims Nos. 1 to 4 allowed by the Arbitrator. In other words, the Arbitrator awarded more than 200% amounts of damages over the amounts of claims under items Nos. 1 to 4, which were also in the nature of damages. The above aspect could be taken into consideration by the Court under section 17 of the Act before making the award rule of the Court. If the above appeal would have been against the order making the award rule of the Court, we would have examined the above question, but since the present appeal is against the judgment of the High Court holding that the appellant's objections to the award were time-barred, we cannot examine, the above question in this appeal. It is not necessary to examine other submissions which do not touch upon the above question adjudicated upon by the High Court.
' The appeal is, therefore, dismissed with the above observation, but there will be no order as to costs.