' By way of this revision petition Khan Muhammad petitioner has impugned the validity of orders dated 12-6-1990 and 12-10-1991 passed respectively by Ch. Muhammad Tamar Hayat, Civil Judge, Mailsi, and Ch. Muhammad Iqbal Naroo, Additional District Judge, Vehari, in the course of proceedings of a civil suit filed for specific performance of a sale agreement dated 2-10-1982. by Khan Muhammad against Abdul Rasheed. I need not narrate the history of the litigation, that finds mention in a sufficient measure in the impugned orders.
2. While the matter was pending before the Civil Judge, the parties are stated to have agreed on 10-4-1989 to refer it for decision to an arbitrator, Mian Muhammad Iqbal Borana, Chairman, Union Council, Karampur, Tehsil Mailsi, District Vehari. He gave an award on 16-4-1989, expressing himself against the defendant, who according to him had agreed to sell two acres of his land for a consideration of Rs,15,000 to Khan Muhammad plaintiff and received from the latter an amount of Rs,12,000 and then resiled. Khan Muhammad deposited the balance amount Rs,3,000 with the Court, but it was revealed that Abdul Rasheed was owner of a total area of 12 Kanals and 17 Marlas only. Even a Mutation (No,454 dated 24-10-1983) was shown to have been sanctioned in favour of Khan Muhammad and incorporated in the Revenue Record.
3. Award was announced on 25-5-1989, and Khan Muhammad submitted an application on 29-5- 1989, with a prayer that the award be made the rule of the Court under section 14, Arbitration Act This application was opposed by Abdul Rasheed, who made a point-blank refusal about having agreed to appointment of any person as referee or arbiter at all. The learned Civil Judge heard the learned counsel for the two sides, in regard to the question whether or not Khan Muhammad's petition was maintainable, and came to the conclusion that the matter could not be referred to arbitration, without adverting to the question if the parties to the dispute had ever agreed to have the controversy resolved through arbitration. This opinion was endorsed by the appellate Court below.
4. Chapter IV, Arbitration Act, 1940 deals with arbitration in pending suits. As provided by sections 21 to 25, parties whose interests are involved in the pending litigation may refer their differences to arbitration at any time before the judgment is pronounced, but this has to be done not without intervention of the Court. The parties are required to apply in writing to the Court for an order of reference, and appointment of arbitrator shall be made in the manner, as agreed upon between the parties. A reasonable time has to be given to the arbitrator for announcing the award, and so long as the matter remains with the arbitrators, the Court shall not deal with it in any manner, save as permitted by the provisions of the Act. Of course, the suit may continue so far as it relates to the parties, who have not agreed to such reference and as regards matters left out of the reference, in the event of the same being separable from rest of the subject-matter of dispute, and only those parties who have actually joined the exercise being bound by the award.
5. There should thus be no confusion about the proposition that although the parties to a litigation may arrive at a settlement outside the Court and bring the litigation to an end, as stipulated by Order 23, Rule 3, C.P.C., if the controversy has to be resolved through arbitration, in a pending case, steps to have the same materialised will be taken with the knowledge and permission of the Court, and such arrangement cannot be enforced without intervention of the Court. The only exception provided is the one contemplated by section 47, a residuary section, proviso to which makes a provision for implementation of such awards, which are brought into being, without intervention of the Court, and may be enforced as an adjustment of the suit or settlement of the dispute under Order 23, Rule 3, C.P.C., but sine qua non for such an eventuality is the consent of all the parties interested. There is no legal bar to the parties agreeing to refer their dispute to arbitration, without intervention of the Court, and then to place the award, made in pursuance of such arbitration, for consideration as a compromise or `adjustment' of the suit.
6. In the instant case the parties are not only at variance respecting the so-called award, one of them has disputed his initial agreeability to appointment of an arbiter for settlement of the dispute, without the routine exercise to be undertaken by the Court in civil proceedings.
7. As such, the learned lower Courts have rightly held that the Court could not enforce such an 'award'. Where was the necessity then to call upon the parties- to lead evidence, in that regard, in order to find out if the appointment of the arbitrator had been made, as maintained by the defendant-respondent, without his consent? The argument of the learned counsel that it was only an application for setting aside an ex parte decree, that was pending before the Court, and it could not be treated as proceedings of a civil suit, attracting applicability of the above-said provisions of the Arbitration Act (sections 21 to 25), is obviously devoid of force. The contention that the matter was disposed of by the lower Courts in a summary manner, without putting the parties to trial as regards execution of the agreement, for decision of the dispute through arbitration, does not merit consideration, since a party to the dispute has denied execution of such agreement, as also his submission to authority of the arbitrator, and has questioned the validity of the award.
8. There is hardly any merit in the revision petition, which is hereby dismissed, but without any order as to costs. The parties shall go back to the trial Court, where the civil suit shall be decided in accordance with law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.