SHAFIUR RAHMAN, J: --Leave to appeal was granted to the plaintiffs to examine whether an appeal was not competent under section 39 of the Arbitration Act which was unsuccessfully availed of without further challenge, and the act of defendants in participating in the subsequent suit proceedings precluded them from challenging by way of a civil revision the order which had by their own conduct and in view of the antecedent proceedings acquired finality.
2. The appellants sued as heirs of Mst. Noor Bibi for a share in the estate left by her. The defendants contested the suit claiming a prior purchase of the disputed property from Mst. Noor Bibi. While the proceedings were pending in the Civil Court, the parties filed an agreed statement to refer the dispute to Arbitrators and the decision of the suit on the award of the Abritrators. The Qazi allowed this submission on 19-4-1986 and the matter was referred to the Arbitrators. On 4-5-1986, the Arbitrators submitted their award recommending the dismissal of the suit of the plaintiffs on the ground that the sale in favour of the defendants was proved. The plaintiffs objected to the award on the ground that the Arbitrators had passed the award on the statements of two witnesses which were recorded without oath. This plea prevailed with the Qazi and the award was ignored or set aside. The defendants/respondents filed an appeal before the Majlis-e-Shoora which was dismissed on 7-8-1986 as incompetent. Thereafter the defendants sought no further relief, and participated in the proceedings before the Qazi where evidence was recorded and adjudication on merits followed, and the Qazi Turbat on 28-12-1986 decreed the claim in favour of the plaintiffs. An appeal was filed by the defendants before the Majlis-e---Shoora which was dismissed. A revision was thereafter filed in the High Court in which extensive challenge was made to the earlier order of the Qazi whereby the award was set aside or ignored and the adjudication proceeded on merits.
3. The learned Judge in the High Court by the impugned judgment examined the facts of the case in great detail and came to the conclusion that reference to the arbitration was good, that the award was unanimous, that its setting aside on the ground of non-examination of two witnesses on oath could not be ordered and that the Civil Court had become functus officio after reference to the Arbitrators and all proceedings were without jurisdiction. The finding recorded is as hereunder:- "In such view of the matter the next question which requires consideration would be whether proceedings drawn by the Qazi after setting aside the arbitration award are with jurisdiction? Reply to the same is again that Court becomes functus officio unless the award falls within the mischief of section 30 of the Arbitration Act or unless the reference is annulled by the Court below on the grounds as provided under section 33 of the Arbitration Act-----Having concluded so, I find substance in the arguments of the counsel for the petitioner that the proceedings conducted by the Qazi after setting aside award became void."
As regards the conduct of the defendants in participating in the subsequent proceedings, the Court observed as hereunder:----- "The attempt of the petitioners to challenge the orders setting aside the award before the Majlis-e- Shoora indicates that they were vigilant and did not accept the said order passed by the Qazi. They challenged the same after comprehensive decree and judgment were passed. The petitioners are entitled to raise all legal questions in revision petition once the same is admitted by High Court.
Particularly so when a question which goes to the root of the proceedings and which touches otherwise jurisdiction of the Court is not ordinarily disallowed, more so when order passed is not appealable. This contention, therefore, is devoid of force and is rejected as such."
5. Finally, the High Court granted the relief in the following words:---- "For the reasons mentioned above, I accept this petition and set aside both the judgment and decree dated 28-12-1986 and dated 24-3-1987 respectively passed by Qazi Turbat and Majlis-e- Shoora Makran, but remand the case to Qazi to proceed with the matter afresh in accordance with relevant provisions of Arbitration Act and pass order on the award."
6. Mr. Tahir Muhammad Khan, Advocate the learned counsel for the appellants contended that the defendants having not pursued the remedy further after the Order of Majlis-e-Shoora could not invoke a ground once more to get the judgment and decree of the Civil Court set aside. Their prolonged participation in the proceedings without objection disentitled them to any relief in the revisional jurisdiction of the High Court.
7. After going through the record and hearing the learned counsel for the parties we find that reference to arbitration in a pending civil suit was quite in order and had been consented to by both the parties. An award had been given and the only objection taken to its validity was that two witnesses had been examined without oath on the basis of which the award had been given.
Nevertheless, the ground had prevailed with the Qazi and he had in terms bf clause (vi) of subsection (1) of section 39 of the Arbitration Act set aside the award and had not given effect to the award as provided under that section. It was an appealable order and appeal lay to the Majlis- e-Shoora. The defendants had availed of that remedy but the Majlis-e-Shoora had, in treating that order as a non-appealable Order against which only a revision petition was competent, evidently declined to exercise the jurisdiction which it possessed and had to exercise under the law. It had no discretion in the matter.
8. It is true that the defendants did not pursue any remedy at that stage against that order of Majlis-e-Shoora declining the jurisdiction in the matter where it was possessed of it. They submitted to the order of Qazi till the judgment and decree was passed and then they challenged it on all the grounds available before the Majlis-e-Shoora. Having failed there, they approached the High Court in revision. The revisional powers of the High Court cannot be limited or abridged by the act of the parties. It can in supervisory jurisdiction of superintendence and control, oversee and correct all jurisdictional errors or errors which have materially affected the proceedings of subordinate Courts in which appeal does not lie to it. An appeal, in this case, under section 39 did not lie to the High Court and therefore, the revisional jurisdiction was available in respect of the proceedings and every order passed therein.
9. We are also clear that the Civil Judge had the jurisdiction to deal with the objection that was presented before him. The Qazi had also the jurisdiction to determine whether the Objection to the award was correct or incorrect. In deciding that Objection he may have committed a legal error but it cannot be said to be a jurisdictional error. That order was certainly amenable to the revisional jurisdiction of the High Court irrespective of the conduct of the parties and independently of it. The only question that has caused us some anxiety is whether it is not a case where it should have corrected, in the same suo motu revisional jurisdiction and the power which it exercised, though on an application by unsuccessful defendants, the very Order of Majlis-e-Shoora which declined the jurisdiction in the matter when it was evidently within its jurisdiction to decide the appeal. That would have been far better if the High Court had in the process of revising the order set aside that order and directed the Majlis-e-Shoora to hear the appeal against that appealable order which was brought before it so that the High Court itself could have had the views of the appellate authority on the subject and the authorities also could have had the benefit of a hearing before an intermediary competent authority. It would have also been proper in exercise of the supervisory jurisdiction to keep under control, supervised and guided the appellate Court with regard to exercise of their own jurisdiction as well, instead of directly going to the foundational order for which a statutory relief was available.
10. In the circumstances, for keeping the channel of decisions in the civil hierarchy uninterrupted and for doing complete justice under Article 187 (1) of the Constitution, we accept the appeal, set aside the judgment of the High Court,remand the matter in appeal to the Majlis-e-Shoora which should hear it reviving the earlier appeal which it had dismissed as incompetent and dispose of the two together taking up first the earlier one and thereafter and only consequentially the appeal arising out of the judgment and decree subsequently passed. In deciding the appeals the Majlis-e- Shoora should not be prejudiced by the finding of the High Court on the legality of the proceedings of the Qazi pertaining to the setting aside of the award which is the subject-matter of the first appeal. The matter shall go to the Majlis-e-Shoora for decision of the two appeals afresh.
No order is made as to costs.