' NAIMUDDIN, J. --The facts giving rise to these appeals are as follows:-
1. The respondents entered into a contract with the appellants for construction of residential building at Tarbela. Dispute having arisen as to payment of certain items the same was referred to the sole arbitrator in accordance with clause 64 of the contract.
2. The arbitrator entered upon the reference on 12-7-1975 and issued notices to the parties for 17-1- 1976 who appeared before him without any objection, rather they agreed to three extensions, first on 7-9-1976, second on 3-11-1976 and the third on 5-4-1978, which is the date on which the award was made and announced. By the award the arbitrator directed the appellants to pay a sum of Rs,13,01,113 to the respondents.
3. The award was filed in the Court of the Senior Civil Judge, Abbottabad, on or about 13-5-1978. The appellants filed objections under sections 14, 30 and 33 of the Arbitration Act, raising the following objections:-
(i) that the arbitrator misconducted the arbitration proceedings;
(ii) that the award was invalid because the contract that contained the arbitration agreement was not stamped; and
(iii) that the award was not given within a period of four months in accordance with Condition 3 Schedule I of the Arbitration Act, nor was the time extended by the Court under section 28 of the Act.
4. The learned Senior Civil Judge, Abbottabad, overruling all the objections made the award rule of the Court by the judgment dated 9.7.1979 and passed a decree accordingly.
5. Aggrieved by the rejection of the objections to the award the appellants filed an appeal in the Peshawar High Court. The respondents filed cross-objections to the appeal under Order 41 rule 22 CPC claiming award of interest on the decretal amount from the date of decree to the date of payment which the learned trial Court had failed to award.
6. The High Court by two separate judgments both dated 22.5.1983, dismissed the appeal and allowed the cross-objections and awarded interest on the amount at the rate of 8 % per annum from the date of the decree to the date of the payment.
7. Aggrieved by the judgments the appellants have filed these two appeals.
8. Before us the learned counsel has raised three-fold contentions:--
(i) that the award is invalid having been made beyond the time;
(ii) that the contract containing the arbitration agreement was not stamped and therefore not admissible in evidence; and
(iii) that the appeal against the non-award of interest by the decree passed by the learned Senior Civil Judge was incompetent.
9. Taking up the first contention, it was submitted by the learned counsel that the arbitrator had entered upon the reference on 12-7-1975, therefore, he ought to have given the award in the absence of any agreement to the contrary and extension of time under section 28 by the Court, within four months as provided in condition 3 of the First Schedule to the Arbitration Act, but the award was given after more than 2 years and 8 months' time. There is no doubt that the award was given beyond the time, but in reply it was submitted by the learned counsel for the respondents that firstly the appellants had agreed to the extension of time for giving the award, secondly they continued to appear before the arbitrator without any objection, participated in the proceedings till last and took chance of a favourable award, therefore, they acquiesced in the proceedings, waived their right to object to the award and are now estopped from challenging the same. The learned counsel for the appellants then submitted that the representative of the appellants, who appeared before the arbitrator, had no power to agree to the extension of time and the advocate, who was appearing for the appellants before the arbitrator, had applied only for one extension; the appellants have not acquiesced in the proceedings or waived their rights and are not estopped from questioning the award by the participation of their representative in the proceedings before the arbitrator.
10. As regards the first submission that the representative of the appellants who appeared before the arbitrator had no power to agree to the extension of time, it may be stated that the appellants by their letter dated 6-2-1976 Ex.P.W.1/D.1 addressed to Sh. Abdur Rehman, the sole arbitrator, had informed him that Haji Sanaullah Khan, Executive Engineer of the Project was thereby authorised to attend the arbitration proceedings in the noted contract and thereafter he and his advocate did not only attend the proceedings but represented the appellants before the arbitrator throughout and did everything which the appellants themselves were required to do. What meaning is to be assigned to the words "to attend the proceedings"? It seems that the authority was to authorise Haji Sanaullah Khan to represent the appellants before the sole arbitrator which he did throughout. It could not be only for the purposes of watching the proceedings before the arbitrator for that could be done without any authority. Further 'to attend' means "to apply oneself and to direct one's mind and efforts". According to Webster's New International Dictionary, 2nd Edition, page 178, it means "to care for; to look after; to take charge of; to watch over the working or. (Syn.-follow, conduct, serve).Therefore, Haji Sanaullah Khan was authorised to represent the appellants. At no stage of the proceedings anybody else acted on behalf of the appellants. Then the appellants were also represented by an advocate who, besides Haji Sanaullah, had also signed the application for extension though according to the learned counsel for the appellants, only once. But they continued to appear till the last date of hearing. Therefore, the appellants are bound by their acts and conduct. There is no doubt that the appellants continued to appear before the arbitrator through their representative and advocate and participated in the proceedings till the last date without any objection and took chance of a favourable decision, therefore, they waived their right to object to the award on that ground, acquiesced in the continuation of the proceedings by the arbitrator and are estopped from challenging the award on that ground.
11. The question for consideration is whether by consent, the parties can waive the prescribed period of four months by taking part in the arbitration proceedings and submitting themselves to the jurisdiction of the arbitrator. There is no express provision in the Arbitration Act that there can be such waiver or estoppel. The only provision which throws some light on the question is contained in section 28(2) which provides that any provision in an arbitration agreement whereby the arbitrators or umpire may, except with the consent of all the parties to the agreement, enlarge the time for making the award, shall be void and of no effect.
' Reading section 3, implied Condition No,3 in the First Schedule to the Arbitration Act and section 28 thereof together, the position of law appears to be clear that the parties are free to enlarge the time for making the award with their mutual consent as with the consent of all the parties, a term can be incorporated in the arbitration agreement giving powers to the arbitrator to enlarge the time for making the award. By Condition No, 3 in the First Schedule, statutorily an implied term is incorporated in the agreement that the award shall be made within four months after entering upon the reference. By this statutory provision, the term is to be taken as an integral part of the arbitration agreement and is subject to alteration with the consent of the parties like any other term of a contract. If that were not the intention of the legislature, section 28(2) would not make valid a provision in the arbitration agreement empowering the arbitrator or arbitrators to enlarge the time for making the award with the consent of the parties. If the parties after the expiry of the four months submit themselves to the jurisdiction of the arbitrator and take part in the proceedings enabling him to make an award, it cannot be said that the arbitrator acted without jurisidiction. In such a contingency, the principles of waiver and estoppel would apply with full force.
12. It is now well settled that where the party had all along submitted to the proceedings of the arbitrator without any protest, he cannot turn round and object or insist that the award was made out of statutory period. In Province of Balochistan v. Malik Haji Gul Hasan PLD 1982 Quetta 52, M/s. Sind Cotton Exporter v. M/s. A.B.Sadiq Brothers PLD 1955 Sind 268 and M/s.Musa Ismail & Co. v. Amin Agencies Ltd. PLD 1955 Sind 242, it was held by the High Courts of Baluchistan and Sind respectively that the party raising no objection before the award is given and voluntarily acquiescing to arbitrator's jurisdiction, such party was debarred from raising objection at later stage. It was also held by a Division Bench of the Lahore High Court in the case of Ghulam Mohiuddin v. Federation of Pakistan PLD 1967 Lahore 204 that if a party takes part in the proceedings even after the expiry of four months without raising any objection, it cannot be allowed to raise such an objection. In this case a large number of cases on the point from Pakistan and other jurisdictions were reviewed and discussed. It may be useful if para 8 of the judgment is reproduced below which reads as follows:- "8. The fifth point raised by the learned counsel was that the arbitrator in this case had given the award after four months of his entering upon the reference and the same as such was void being in violation of paragraph 3 of the Ist Schedule attached to the Arbitration Act, 1940, provisions whereof were to he considered as implied terms of the Arbitration Agreement as laid down in section 3 of the Act. No doubt the award in this case was given beyond four months, but the point to be noticed is that the provisions of the 1st Schedule simply became the terms of the Arbitration Agreement and did not acquire a status higher than that. The proposition is well settled that if the terms of any agreement are not complied with in this respect, the consequence is not that the award becomes invalid. If from the conduct of the parties concerned it can be inferred that they agreed to the proceedings being continued beyond the period stipulated, then the objection loses all the significance. This proposition was thrashed out fully in a Division Bench ruling of this Court reported in Haji Sattar Haji Muhammad and 9 others v. Abdul Karim Haji Issa and 3 others PLD 1958 Karachi 378, where it was laid down that the provisions of the Ist Schedule do not acquire any greater status than becoming implied terms of the Arbitration Agreement. It has been laid down in numerous rulings that when a party continues to take part in arbitration proceedings after the period stipulated in the agreement for concluding those proceedings, and does not take objection to their continuation, then he cannot raise this objection afterwards. Reference can be made to Meman Tayab Sharif and another v. Kasam Adamji, Haji Abdul Latif Ebrahim Bavani and others (PLD 1955 Sindh 224), Bibi Patto Kumari Saheba v. Upendra Nath Ghosh (50 I C 52), Messrs Habib & Sons v. Messrs Virk Co. (PLD 1957 Karachi 245), Donald Campbell & Co. v. Jeshraj Girdhari Lal (AIR 1920 P C 123), Asa v. Mst. Bhuran (AIR 1936 Lahore 466), Madura Mills Cos., Ltd. v. N.M.S. Krishana Ayyar (AIR 1937 Mad. 405), Nani Bala Saha w/o Narayan Chandra Saha v. Ram Gopal Saha and another, minors, represented by pleader guardian Babu Kumar Gurukrama Mozumdar and another (AIR 1945 Cal. 19) and Madipalli Venkatachellam v. Madipalli Suryanarayanamurty and others (AIR 1941 Mad. 129). In view of the above weight of authorities we hold that the award cannot become invalid in the instant case due to the mere fact that it was not given within four months, the reason being that the appellant did not raise this objection at the proper time and rather acquiesced in the continuance of the arbitration proceedings, led evidence and took chance of a favourable decision and when the decision has gone against him he cannot be allowed to say that the arbitration proceedings extended beyond the time limit implied in the Arbitration Agreement. If the terms of an agreement can be changed by the parties by their mutual consent (as for example by writing) then it is obvious that the terms about time matter could also be changed with their consent implied from their conduct. In the instant case the consent of the appellant in continuation of these proceedings is obvious because he raised no objection with regard to it at any stage of the case before the arbitrator and it is the finding of the learned appellate Court as well.
' The question of invalidity of the award in view of sections 3 and 28(2) and Condition 3 contained in Schedule I of the Arbitration Act came up for consideration in the case of Shambhu Nath v. Surja Devi and others (AIR 1961 Allahabad 180) and it was observed in para 4 of the judgment as follows.
"(4) The combined effect of section 3 and Condition No,3 is that every arbitration agreement contains a condition as to time which is of the essence of the agreement. If this condition is broken, either party to the agreement can treat the arbitration as at an end. But a condition in an agreement has not the same effect as a statutory condition which goes to the root of the jurisdiction of a Court or any other authority. It is like any other condition in an agreement and can be waived by the parties.
' This general principle under the Law of Contracts is given statutory recognition by section 28(2) of the Arbitration Act, which says.
' Any provision in an arbitration agreement whereby the Arbitrators or Umpire may, except with the consent of all the parties to the agreement, enlarge the time for making the award, shall he void and of no effect.
' In other words, any condition in an agreement empowering the arbitrator or umpire to extend the time for making the award is void, but not a condition enabling him to do so with the consent of all the parties to the arbitration agreement.
' It is thus clear that the time limit of four months can be waived with the consent of both the parties. Further, it may be observed that in a statutory arbitration it is competent to the parties to renounce or waive statutory provisions which are for their benefit. See Russell on Arbitration page 166 (16th Editi in). In support he has relied on the case of Caledonian Railway v. Lockhart L860) 3 Macq. (H.L.) Cas. 808 wherein it was observed.
"The first point urged by Mr. Collier was that the award was made after the time for making it had expired, and therefore was a nullity, and that the objection could not be cured by consent of parties. I do not think that objection is good. The arbitration clauses being introduced for the benefit of the parties, they are at liberty to renounce at their pleasure the advantages which those clauses afford.'
' Accordingly, we hold that the appellants are estopped from challenging the award that it is beyond the time and they waived their objection that the arbitrator ceased to have jurisdiction to proceed with the arbitration as according to their own statement in the appeal the arbitrator had entered upon the E reference on 12-7-1975 and issued notice for 17-1-1976 and they continued to appear before the arbitrator without any objection till the last date when the award was given without any objection or demur. If they had raised the objection at the earliest opportunity any of the parties would have applied to the Court for extension of time. Accordingly the award is not invalid on this ground.
13. Taking up the second contention that the arbitration agreement was not stamped and therefore was not admissible in evidence, it may be stated that section 35 of the Stamp Act, 1899, prescribes that "no instrument chargeable with duty shall be admitted in evidence for any purpose or shall be acted upon . ] ", but section 36 prescribes that if any instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped and even the appellate Court's power to entertain objection as to the admissibility of the documents has been done away with by section 61 ibid which instead expowers the appellate Court to collect duty payable on the unstamped instrument together with a penalty. Reference may also be made to Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique (PLD 1978 Supreme Court 279) wherein it was observed at page 286 of the report as follows:-- "It is strange that the question whether an unstamped instrument is valid or not has seldom come up before the Courts. But in Joyman Bewa v. Easin Sarkar (AIR 1926 Cal. 877), the Calcutta High Court held that the failure "duly to stamp a document. . Does not affect the validity of any contract therein contained, but renders the document inadmissible in evidence." Thirty years later the Madras High Court took the same view in Subramanian Chettiar v. Revenue Divisional Officer, Devakottah and another (AIR 1956 Mad. 454). And, as I will presently show, on the whole, this appears to have been the view of the Lahore High Court in Gopi Mal v. Vidya Wanti etc. (AIR 1942 Lah. 260). And further as English Law is not dissimilar, I cannot do better than quote the dictum of Lindley, L.J., Powell v. London and Provincial Bank (1893) 2 Ch. 555, at page 560.
' No case that I know of can be cited to show that . . . An erroneous stamp would invalidate the deed.
' Similarly in re : Indo-China Steam Navigation Company (1971) 2 Ch. 100, a transferor, who had executed a transfer deed for the sale of his shares attempted to repudiate the sale, on the ground that the transfer deed was invalid, because it was unstamped. The Court rejected this plea and held that the transferor could not contend "that the transfer was void and his signature a nullity".
' I agree with the view taken in these judgments, which coincides with my own views, and, I would hold that an arbitration agreement which is unstamped or is not properly stamped, is subject only to the disabilities specified in section 35 and these disabilities can be removed in the manner prescribed in sections 35 and 36. But such an agreement is not invalid."
14. The learned counsel for the appellants, however, referred to Pakistan Cement Industries Ltd., Rawalpindi v. Teekayef Trading Co. (PLD 1971 Lahore 522). This case was also cited before this Court in PLD 1978 SC 279 (supra) and was distinguished at page 290 of the report.
15. Taking up the third contention that the cross-objections against non-award of interest by the decree passed by the learned Senior Civil Judge were incompetent, the argument was that an appeal as provided under section 39(1) of the Arbitration Act would lie only from the orders mentioned in that section and from no other orders. Therefore, no cross-objections, which are in the nature of cross appeal, were maintainable.It is true that under section 39(1) of the Arbitration Act an appeal lies from the following orders:
(i) An order superseding an arbitration;
(ii) An order on an award stated in the form of special case;
(iii) An order modifying or correcting an award;
(iv) An order filing or refusing to file an arbitration agreement;
(v) An order staying or refusing to stay legal proceedings where there is an arbitration agreement;
(vi) An order setting aside or refusing to set aside an award: ' But the appellants had also filed an appeal from the decree passed on award and if the trial Court had not awarded interest as provided in section 29 of the Arbitration Act, the appellate Court has had ample powers under Order 41, rule 33, C.P.C. To pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power could be exercised by the Court in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.
' Rule 33 of Order 41, C.P.C. May be quoted here for ready reference which reads as follows; "Power of Court of Appeal.--The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: ' Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
' Therefore, the third contention also has no force.
16. For all these reasons, we find no merits in both the appeals and-accordingly dismiss them with costs.