' MUHAMMAD AFZAL LONE, J---This appeal under Article 185 (2) of the Constitution, directed against the judgment dated 11-11-1991 rendered by a Division Bench of the Peshawar High Court, has arisen out of a suit filed by the respondent against the appellant for recovery of Rs,80,000. According to the averments made in the plaint, the parties ran a brick-kiln; the respondent invested a sum of Rs, 1,78,000; the business suffered a loss; the dispute was referred to `Jirga', which gave a verdict on 10- 5-1980 to the effect that a sum of Rs,80,000 was payable by the appellant to the respondent. The learned trial Court, after appraisal of the evidence of the parties, relying on the decision of the `Jirga' Exh. PW. 2/1, which bore the signatures of the appellant, passed a decree for Rs,80,000 in favour of the respondent, leaving the parties to bear their own costs. The contention raised by the appellant that, in the course of business, the respondent has been obtaining his signatures on the blank papers, and that one of such papers bearing his signatures, was converted into document Exh. P.W.2/1 was disbelieved by the trial Court. The appellant challenged this decree through an appeal before the High Court primarily on the ground that the decision of the Jirga Exh.P.W. 2/1 was in fact an Arbitration Award, which not having been made rule of the Court in contemplation of section 14 of the Arbitration Act, 1940 was a nullity and could not have been acted upon. The High Court, however, on examination of some case-law on the subject did not find any merit in the appellant's submission and maintained that the Arbitration proceedings envisaged by the Arbitration Act are characterized by any inquiry of the judicial nature followed by an award drawn in accordance with section 14 of the Act. It was observed that in the instant case the parties referred their dispute for decision to the Jirga in accordance with the custom prevailing in the society and were not even conscious of the statutory provisions of the Arbitration Act. It was further held that the determining factor was substance of the action taken and not merely the terminology used in describing the proceedings. On the scrutiny of the transaction between the parties culminating in decision of the Jirga Exh.P.W. 2/1 the Court came to the conclusion that it could not be treated as an award within the meaning of clause (b) of section 2 of the Arbitration Act. Resultantly, the appeal was dismissed. However, the learned Judges took the view that though the award of costs was within the discretion of the trial Court, yet as the appellant vehemently contested the suit, but failed, he should have been burdened with the costs. In the opinion of the learned D.B. The trial Court did not exercise its discretion judicially, and thus the respondent was awarded the costs throughout.
2. We have heard the learned Counsel for both the sides and examined the record to evaluate their submissions. As the view taken by the High Court in holding that the decision of the Jirga did not qualify to be an award within the meaning of section 2 (b) of the Arbitration Act, finds ample support from the case-law on the subject, the learned Counsel appearing for the appellant did not have much in questioning the validity of the impugned decision. He, however, expressed a grievance that the trial Court denied the costs to the respondent and this denial was not assailed by them through an appeal; the High Court, therefore, was not justified in giving a direction for payment of the costs throughout.
3. A reference to section 35, C.P.C. Will provide that though the costs in the suit are in the discretion of the Court, yet where the Court directs that the costs shall not follow the event, reasons have to be recorded in support of such direction. We find that the learned trial Court has not recorded any reason in denying the costs to the respondent, although the suit was decreed in his favour.
However, we feel that the controversy raised before the trial Court, as to whether or not the decision of the Jirga, could be treated as an award under the Arbitration Act was not without difficulty and at the High Court's level precedents were cited by both the sides in support of their respective contentions; on examination whereof the High Court chose to accept the submissions advanced on behalf of the respondent. In the circumstances of the case, the decision of the trial Court in refusing the costs, for want of reason suffers from an infirmity, but so far as ultimate conclusion is concerned, it does not lack in soundness.
' This appeal is, therefore, accepted and the impugned judgment altered to the extent that the award of the costs to the respondent is set aside. Resultantly, the trial Court's decree for Rs,80,000 in favour of the respondent it upheld. The parties are left to be their own costs.