CH. MUSHTAQ AHMAD KHAN, J.- Briefly stated, facts of the case out of which this civil revision has arisen are that on the basis of an agreement for reference to arbitration dated 26.1.1984, the petitioner and respondent No.1 Haji Muhammad Shaft referred the dispute with regard to the value of the plot in question to the Arbitrators named in the agreement, who further appointed respondent No.2 as an Umpire who gave an award dated 13.5.1985. Admittedly no notice of the filing of the award was served upon the petitioner either by the Arbitrators or by the Umpire.
However the Umpire filed the Award along with the proceedings, in the court of learned Senior Civil Judge, Kasur for making it rule of the Court, on 16.7.1985 through an application under section 14 of the Arbitration Act. The respondents which include the petitioner were summoned in the application initially for 9.9.85 and ultimately for 28.10.1985. According to the petitioner on coming to know of the proceedings pending in the trial court in relation to the said Award, the petitioner appeared in court on 28.10.1985 and filed objections on 10.11.1985, the date fixed by the court for filing of objections. These objections have been contested by respondent No.1 and one of the objections raised is that the objections were filed beyond time. The learned trial court framed the following issues: -
1. Whether the objections filed by the respondent No.1 are barred by time?
2. Whether respondent No.1 is estopped by his conduct to object to the award?
3. Whether the appointment of Umpire by the Arbitrators was illegal? If so, to what effect?
4. Whether the award is void?
5. Relief.
The parties did not lead any evidence and hence the learned trial court held that beyond a period of one month as per agreement Umpire could not have been appointed and award could not have been delivered beyond a period of four months without express permission by Court or at least consent of the parties. Objections were held to have been filed within time. Issue of estoppel was decided against the respondents for want of evidence. The learned trial court vide order dated 7.2.1988 set aside the award' as being invalid and void. Aggrieved of the same order, respondent No.1 filed an appeal before the learned District Judge, Kasur which has been accepted vide order dated 29.5.1988 and the objections have been rejected as being barred by time on the ground that the petitioner had knowledge about the filing of award and from the date of the knowledge, the objections were not filed within 30 days and hence are barred by time. Learned first appellate court has decided other issues as well against the petitioner and directed that the award should be made as rule of the court. The main ground which has weighed with the appellate court for deciding other issues in favour of the respondent is that the petitioner participated in the arbitration proceedings. This order has been challenged in this civil revision by the respondent petitioner.
2. Kh. Muhammad Akram Advocate learned counsel for the petitioner has argued that the period of limitation has to start with effect from the date of service of notice under section 14(2) which admittedly was not served upon the petitioner and therefore the objections could have been filed on any date fixed by the court for filing of the objections which were filed as per order of the court, therefore, it cannot be said that the objections were filed beyond time. Reliance in this behalf has been placed by the learned counsel on the case of Sh. Din Muhammad v. Jan Muhammad and another (PLD 1971 Quetta 30), Messrs Shaft Corporation Limited, Karachi v. Government of Pakistan through Director General of Defence Purchase (PLD 1981 Karachi 730), India Rayon Corp. Ltd. V.
Raunaq and Company Pvt. Ltd. (1989 MLD 1489) and Pakistan through General Manager, Pakistan Railways v. M.S. OMR Expert Consultants (PLJ 1990 SC 428) and further that the court was even otherwise bound to look into the award and could not have been made the same as a rule of the court merely on the basis of the decision of issues of preliminary. Nature Reliance is placed on case of Syed Tariq Farboq v. Nasruddin and another (PLD 1989 Quetta I) and Province of the Punjab Versus Syed Shafiq Ahmad (PLD 1989 Lahore 261). Learned counsel has further contended that the finding recorded by the leamed court on issues No. 2,3 and 4 are sketchy and findings of the learned trial court on these issues have illegally been set aside. Malik Muhammad Nawaz learned counsel for the respondent has argued that it stands established on the record, as is narrated in the order passed by the learned appellate court, that the petitioner had the knowledge of filing of the award prior to 30.9.1985 but the objections were filed beyond 30 days thereafter, therefore the same were barred by time and could not have been entertained and the learned first appellate court has rightly set aside the finding of the learned trial court on all the issues. Reliance is placed on PLD 1981 Karachi 730 and 1989 MLD 1489 referred to supra. Elaborating his arguments, learned counsel for the respondent has taken me through the order sheet appended with the civil revision in order to demonstrate that the summons in the case were issued to the petitioner on 21.7.1985 for 9.9.1985 for which date respondent No.2 was served but summons issued to the petitioner were not returned. On 9.9.1985 against the summons were issued to the petitioner but were not returned and the case was fixed for 6.10.1985. Process fee was not deposited for this date and vide order dated 6.10.1985, it was directed that the petitioner should be served through registered notice for 28.10.1985 on which date Ch. Muzaffar Ali Khan Advocate appeared on behalf of the petitioner and filed his power of attorney which has been executed on 30.9.1985 and therefore it should be presumed that the petitioner had acquired the notice of the filing of the award on 30.9.1985 and as the objections were filed on 10.11.1985, the same were clearly barred by time and hence have been rightly held to the time barred by the learned first appellate court. Reliance is placed on the cases of 1989 MLD 1489 Wadero Muhammad Tayyab V Akbar Hussain and another (1489 MLD 3952) and PLD 1981 Karachi 730.
4. I have considered the arguments addressed by both the learned counsel for the parties, have perused the record and have also gone through the judgments cited by both the learned counsel.
As per provision of section 14(2) of the Arbitration Act, it is quite clear that the terminus a quo for starting the limitation against the objector is the date of service of the notice of the filing of the award. In this case admittedly no notice of filing of the award was ever served upon the petitioner by the Umpire or by the Arbitrator or by the court. As soon as the petitioner came to know about the proceedings under section 14 of the Act, the objections were filed by the petitioner within a period of 30 days with effect from knowledge and on the date fixed by the court. Merely because Vakalatnama was signed on 30.9.1985 is not a sufficient proof for holding that the petitioner had the notice of filing of the award on 30.9.1985. Onus of Issue No.1 was on the respondent No: 1 and he failed to lead any evidence to prove that the petitioner had a notice of filing of the award prior to 28.10.1985 or had acknowledged the filing thereof prior to the said date. Even otherwise the objections filed in pursuance of a notice of the application under section 14 for making the award as a rule of the court, has no relevancy to the starting of limitation against the objector and if the objections are filed on or before the date on which the court directs the objections to be filed, they shall be deemed to be within time as nobody can suffer due to act of the court. Reliance is placed on Khan Shah Muhammad Khan V. Allah Diwata and others (PLD 1961 (W.P) Lahore 743), Malik Hadayat Ullah and 2 others V. Murad Ali Khan (PLD 1972 S.C. 69), Malik Barkat Ali Dogar V.
Muhammad Shafi and others (PLD 1990 S.C. 60). Even otherwise the notice issued by the learned trial court is for the purpose of appearance and filing reply to the application under section 14 of the Arbitration Act. There is no notice on the file of the case which was issued to the petitioner but there is a notice which was issued to Haji Muhammad Shafi respondent No.2 and presumably a similar notice must have been issued to the petitioner which was not returned as served/unserved.
Wording of the notice issued to the respondent No.2 is reproduced as under: ' &*'>*<*'*.* is* ^ -f ^ *'*'*0*?' {{Urdu text}} a photo copy whereof shall form part of this judgment. There is nothing on the record to show that the notice issued in the application was accompanied with the copy of the application as well.
Words used under section 14(2) of the Arbitration Act which provide a terminus quo for starting the period of time for filing of the objections are:- "And the court shall thereupon give notice to the parties of the filing of the award."
Period for filing of the objections is to commence w.e.f, the service of notice of filing of the award.
Had it been the intention of law to start limitation with effect from service of notice of application under section 14, instead of words" notice of filing of the award" "notice for filing" or notice of application should have been used in the section. In the case in hand, there is absolutely nothing on the record to show that notices were issued which can be said to be the notices of filing of the Award. The notices issued in the case are not the notices of filing of the Award but are notices for appearing in the court in the application under section 14 of the Arbitration Act. For the first time, a notice for filing of the Award shall be deemed to have been served on 28.10.1985 on which date the case was fixed for filing of the objections, in presence of the learned counsel for the petitioner and the respondent No.2. The period of limitation therefore for filing of the objections shall start w.e.f.
28.10.1985 and not earlier thereto. On this score as well the objections have been filed within time.
Resultantly finding of the learned first appellate court on the issue of limitation is set aside and it is held that the objections filed by the petitioner were not time barred and hence the finding of the learned trial court on issue No.1 are resorted.
5. Learned counsel for both the parties have not addressed arguments on other issues but I find that the finding recorded by the learned trial court on issues Nos. 2, 3 and 4 have been set aside by the learned appellate court and if those finding remain in the field, the result of the case shall remain the same i.e. The award shall be made as a rule of the Court. Consequently I have decided to examine the findings recorded by the learned first appellate court on issues Nos. 2, 3 and 4 as well inasmuch the same have been challenged in the memorandum of the revision petition Issue No.2 was decided against the respondent No.1 by the learned trial court for want of evidence. This finding has been set aside by the learned first appellate court on the ground that as the petitioner has been participating in the arbitration proceedings, hence he is estopped by his conduct to object to the Award. This finding rendered by the learned first appellate court is without any evidence produced by the respondent on whom onus of the issue was. Even otherwise merely because a person participates in the arbitration proceedings does not debar him from raising objections which is a statutory right Consequently finding of the learned first appellate court on Issue No.2 is set aside and the finding recorded by the learned trial court on issue No.2 is maintained. Learned trial court had decided issue Nos.3 and 4 against the respondent on the ground that the Umpire was not appointed within the stipulated period and further that the award is void inasmuch as it was delivered beyond a period of four months, findings on these two issues recorded by the learned trial court have been set aside without there being any evidence or material on the record by the learned first appellate court on an erroneous ground that the petitioner did not object of the appointment of the Umpire at the time of his appointment and the parties agreed to continue the proceedings on 16.11.1984 i.e. Even after the expiry of the period necessary for appointment of the Umpire and further that the award is not proved to be void. Learned appellate court however while reversing the finding of the learned trial court on issue No.4 had not written a speaking order and has not given any reasoning for coming to a different finding than the one which was recorded by the learned trial court while deciding issue No.4 against the respondent and holding that the award is void. The learned appellate court has directed the award to be made as a rule of the court after decision of the issue No.1 to 4 without even being conscious about the merits of the objections which have been filed by the petitioner to challenge the award. Some of the objections relate to the conduct of the Umpire whereas the other relate to the legality and vires of the Award itself. These objections have been controverted by the respondent in the reply submitted to the objections raised by the petitioner.
Neither the learned trial court nor the learned first appellate court has decided the merits of the objections. Learned first appellate court has not even cared to go through the award and to record an independent finding as to whether the award can be made as a rule of the court. It was the duty of the learned appellate court while deciding the question about the validity of the award and while making the same as a rule of the court to have gone into the award as well as all the objections with regard to validity thereof and then to have recorded a definite finding as to whether the award can be made a rule of the court. This view finds support from the cases of Syed Tariq Faruq V. Nasaruddin and another (PLD 1989 Quetta 1) and Prof. Shauka! Hussain V. Sarfraz Hussain and 10 others (PLD 1989 Quetta 89) and PLD 1989 Lahore 214 supra. Similarly learned trial court while deciding issue Nos.3 and 4 against the respondents has taken into consideration only legal objections and did not determine the questions of fact involved in the case which could only have been determined after recording of evidence and determination thereof had to affect on the finding on issue Nos.3 and 4 as well and these issues could not have been decided independent of decision of the objection petition on merits. Resultantly finding of both the learned courts below on issue Nos. 3 and 4 are set aside and the result is that these two issues shall have to be decided afresh.
In view of the above I accept this civil revision, set aside the judgment of the learned appellate court on all the issues and judgment of the learned trial court on issues Nos.3 and 4 and remand the case to the learned trial court for decision thereof fresh after framing of issues on merits of the objection petition as controverted in reply thereto. Finding on issues Nos.1 and 2 as recorded by the learned trial court have been upheld. Learned trial court shall be obliged to decide the fresh issues on merits alongwith issues Nos.3 and 4 referred to above. The parties shall be given an opportunity to lead evidence on the fresh issues which shall be framed by the trial court as well as on issues Nos.3 and 4 before deciding the case. The parties are left to bear their own costs.