1. WAHIDUDDIN AHMAD, J.-This order will dispose of civil Petitions for Special Leave to Appeals Nos.
2. K-20 of 1969 and K-37 of 1969, which arise from the judgment of the High Court in Letters Patent Appeals Nos. 148 and 152 of 1966, dated the 27th January 1969. These have arisen in the following circumstances :---- Messrs Qamaruddin Ahmad & Co., a partnership, firm consisting of D. B. Ghadially and Mr. Qamaruddin Ahmad, entered into contract with M. E. S. For construction of 100-bed Hospital at Wah Cantonment at an estimated cost of Rs.18,00,000. During the execution of the said contract, the services of Messrs Haji Din Muhammad, Muhammad Shafi were obtained by an agreement dated the 21st November 1958, for shuttering work to be carried out in the said contract. It is alleged that during the continuation of the said contract Chowdhury Manzoor and Zubair Ahmad of Messrs Manzoor Zubair & Co. And Mr. Abdur Rauf of Messrs Rauf Brothers, were also admitted as partners of Messrs Qamaruddin Ahmad & Co., by two agreements dated the 24th August 1959 and 23rd October 1959.
3. It appears that the firm of Messrs Haji Din Muhammad, Muhammad Shafi did not carry out the work entrusted to them properly and the work of the contract at Wah suffered for that reason. On the 17th March 1963, Messrs Qamaruddin Ahmad & Co., claimed from the said firm a sum of Rs. 50,748- 13-6 as damages. It further appears that on account of the default and negligence in the performance of the contract, M. E. S. Cancelled the contract. Consequently, there arose differences between the said two firms and the dispute between them was referred to the sole arbitration of Mr. Zahoorul Haq, Advocate, who entered upon the reference and made his award on the 28th February 1962, awarding a sum of Rs. 49,295-14-0 to Messrs Haji Din Muhammad Shafi. The award was filed in Court under section 14(2) ,of he Arbitration Act, 1940, for making it as Rule of the Court.
4. Mr. Qamaruddin Ahmad and Mr. D. B. Ghadially filed objections challenging the said award in Suit No. 54 of 1963. A learned Single Judge of the High Court dismissed the objections by judgment dated the 2nd March 1966. This judgment was challenged in Letters Patent Appeals Nos. 148 of 1966 and 152 of 1966. The Letters Patent Bench of the West Pakistan High Court, by judgment dated the 27th January 1969, dismissed these appeals. The petitioners seek permission to file an appeal against the said judgment of the High Court.
5. It was next urged by Mr. Z. U. Ahmad that the award was not in terms of the agreement between the parties. It will be noticed that the alleged agreement was in regard to the mode of the payment of the amount due from the petitioners firm. This agreement was not brought on the record and it is difficult to hold that the arbitrator, by not making it as basis of the award, has miss-conducted himself. In any case it is open to the petitioners to enforce any such agreement by independent proceedings. It was further urged by Mr. Z. U. Ahmad that respondent No. 1 firm being an unregistered firm could not participate in the proceedings in the High Court as they were barred under section 69 of the Partnership Act to do so. This contention also has no force because admittedly, respondent No. 1 firm did not file any objection. This objection might have been taken if respondent No. 1 firm had filed any objection in the proceedings in the High Court for making the award as Rule of the Court. Since no objection was filed, the question of the application of section 69 of the Partnership Act does not arise.
6. Objection was also raised that the award was given beyond the time prescribed by the Law. In this connection it will be seen that the parties requested the arbitrator to give the award in the extended time. The Letters Patent Bench has considered this request and has extended the time in exercise of the power vested in it. In view of this, Mr. Z. U. Ahmad did not press this objection.
7. As a last resort, Mr. Ali Nazar, contended that the judgment of the Letters Patent Bench is without jurisdiction because at the relevant time Qadeeruddin, J. Was an ad hoc Judge of this Court. This contention also has no force because by becoming an ad hoc Judge of this Court, the learned Judge has not ceased to be a Judge of the High Court. The provision of Article 55 of the Constitution on this point is very clear.