1. ' WALI MUHAMMAD KHAN, J.---Province of Punjab and others, through leave of the Court, have called in question the judgment, dated 18-10-1989 passed by a learned Single Judge of the Lahore High Court, whereby their Appeal No,140 of 1989 against the judgment and decree, dated 19-3-1989 of the trial Court (learned Civil Judge 1st Class, Lahore) making unanimous award dated 7-5-1988, announced by the two Arbitrators appointed by the parties, rule of the Court, was dismissed. The leave granting order is to the following effect:--- "The Provincial Government of Punjab has through this petition sought leave to appeal; against the dismissal by the High Court, of its First Appeal against an order passed by a learned Civil Judge.
2. The dispute between the parties, as stated by the learned counsel, is regarding the admissibility of claim for reduction of auction bid of toll tax on the Ravi Bridge on account of the stated reasons of unrest, law and order situation and curfew imposed in Lahore at the relevant time. There is no dispute on the actual bid money nor the liability of the respondent to make the payment of the original amount has been questioned. The respondent's claim has not only been admitted as lawful but also granted on merits to a considerable extent. According to learned counsel the respondent claimed a loss of about 1/3rd of the original bid money of about one and a half crore rupees. The matter having been referred to arbitrators the trial Court made an award which went in respondent's favour, rule of the Court and rebate of 35 per cent. Was allowed to the respondent.
3. The High Court having dismissed the petitioners' appeal leave to appeal has now been sought.
4. ' Learned counsel, inter alias, contended that condition No,19 of the terms .And conditions of tender agreement does not permit such a rebate. He has also contended that the question of misconduct of the arbitrators has not been properly decided nor the award is based on any admissible material/evidence.
5. ' After hearing the learned counsel we consider it a fit case for examination of the aforenoted submissions as also the other points raised in this petition. Leave to appeal, accordingly, is granted."
6. ' The facts of the case, in nutshell, are that the recovery of toll tax over the New Ravi Bridge for the period of nine months from 1st October, 1986 to 30th June, 1987 was auctioned by the appellants for a sum of Rs,1,50,00,000 recoverable in nine instalments of Rs,17,15,106 per month in favour of Chaudhry Zia-ul-Islam and a regular deed embodying the terms and conditions of lease was duly executed and the lessee/respondent inducted in possession from effecting recovery w.e.f, 1-10- 1986. The respondent submitted a petition under section 20 of the Arbitration Act to the Civil Judge Ist Class, Lahore alleging reduction in traffic over the Ravi Bridge due to clashes between the police and students of Government Commercial Institute, clashes between the shopkeepers and the police of Shandra, arrival of Miss Benazir Bhutto, and strikes and curfew in Lahore, Karachi, Peshawar and Quetta and the consequent reduction in the income, putting the plaintiff/respondent to recurring loss of Rs,10,00,000 per month and requested for the reference of the dispute to the arbitrators to be appointed one each by the parties and decision according to their award. This petition was hotly contested by the appellants, who, in their written reply, denied the allegation of the alleged reduction in traffic and the resultant loss to the plaintiff/respondent and also that the agreement did not provide for reference to arbitrators on any such grievance.
7. However, arbitrators were appointed through mutual consent of the parties who submitted their award alongwith the relevant documents on 14-5-1988. The appellants objected to the award on the ground that the arbitrators had misconducted themselves in not giving opportunity to the appellants of being heard and allowing an opportunity to them to cross-examine the witnesses.
8. They also questioned the jurisdiction of the arbitrators and the Court. The learned Court, however, did not feel inclined to accept the objections and the award of the arbitrators was made the rule of the Court vide judgment dated 19-3-1989 and the appeal filed against it having failed, the necessity to file the instant appeal through leave of the Court arose.
9. ' We have heard Mr. Abdul Majid Shaikh, Advocate, for the appellants and the respondent in person, and have perused the record of the case.
10. ' The learned counsel for the appellants submitted that condition 19 of the tender specifically debarred the contractor from claiming any compensation on the plea that the amount of toll tax charged at the bridge has been reduced and in the presence of this specific condition the allegations made in the petition could not be made the basis for reference to arbitrators; that the plaintiff/respondent did not produce any evidence before the arbitrators except newspaper cuttings with regard to curfew, strikes and agitations in the country which could not per se establish the alleged reduction in traffic or the quantum of loss allegedly suffered by the respondent; that there was no data produced by the arbitrators to justify rebate of 35% of the contract amount; that the arbitrators did not record any convincing reasons within the meaning of section 26 of the Arbitration Act in support of their conclusions; that arbitrators refused to grant adjournment to the Executive Engineer Incharge of the case for appearance; and that the learned trial Court misconceived law by holding that the arbitrators were not guilty of misconduct for the simple reason that the word 'misconduct' was not specifically written in the objection petition. The respondent, on the other hand, argued that the arbitrators were appointed with the consent of the parties; that they had fully participated in the proceedings; and that both the arbitrators being employees of the Government could neither be influenced by the plaintiff/ respondent nor they could dare misconduct themselves in the submission of the award.
11. We have anxiously considered the submissions made on either side. The plaintiff/respondent had come to Court with a petition under section 20 of the Arbitration Act and it was his bounden duty to establish beyond doubt that the grounds agitated by him fell within the ambit of clause 25-A of the agreement entitling him to the reference of the dispute to the arbitrators and also to lead evidence in support of the losses claimed by him. We are conscious of the fact that the bidders normally take into consideration the prospective gains and losses, the possible impediments or the reduction in the input of the contract amount and the natural calamities before offering a bid for the contract. The allegations which have been made the basis for the reduction in the income of the contract are the normal phenomena prevailing in this country and the plaintiff/respondent must have been conscious of it before offering the bid. The resultant reduction in the income of the plaintiff/respondent due to the alleged strikes/agitation must have been a temporary phase and must have been followed by increase in the traffic on the following' days. The plaintiff/respondent was, therefore, required to produce documents showing the actual/probable losses suffered by him. The learned counsel for the appellants is right in saying that the mere occurrence of agitation/strikes could not be considered sufficient proof of the reduction in the income of the contractor and entitling him to claim rebate and that too, to the extent of 35 per cent. We are convinced that the impugned award of the arbitrators suffered from legal infirmity and could not be made the rule of the court.
12. ' Resultantly, we allow this appeal, set aside the award of the arbitrators and the judgments of the lower forums whereby it has been made the rule of the Court.
13. The plaintiff/respondent has already executed the award and has realised the amount of rebate.
14. The Government by way of grace has allowed one month's contract amount viz., Rs,17,15,106 as rebate to the plaintiff/respondent. The rest of the amount shall be refunded by the plaintiff/respondent to the appellants. It was suggested to the plaintiff/respondent if he wants repayment in instalments to which he did not respond. Accordingly, he is directed to make the payment within three months failing which coercive measures will be taken for the recovery of the amount. There is no order as to costs.