' Through this Civil Revision Order dated 20-12-1994 passed by Rana Riaz Ahmad, learned Civil Judge, First Class, Lahore in the proceedings under section 20 of the Arbitration Act has been challenged.
2. The brief facts are that the Privatization Commission, Ministry of Finance, Islamabad, invited bids for the sale of Messrs United Industries Ltd., Faisalabad. The bid submitted by the petitioners was accepted and accordingly an agreement to that effect was executed on 21-5-1992 by the Ghee Corporation of Pakistan (Pvt.) Ltd., Lahore through the Privatization Commission (respondent No,2).
According to the assertions of the petitioners, 90% of the total shareholding of the Company was sold for a consideration of Rs,5,34,60,000. The petitioners paid a sum of Rs,2,13,84,000, being 40% of the total consideration. The balance sale price amounting to Rs,3,20,76,000 was to be paid in three equal instalments. To secure payment of balance amount bank guarantee was issued by Messrs Mehran Bank Ltd. The stocks of the Company were valued at Rs,6,70,793.13 which amount was to be paid by the petitioners in four equal instalments within a period of two years. The payment of this amount was also secured by a bank guarantee issued by Messrs Union Bank Ltd. The sold unit was handed over to the petitioners on 24-5-1992.
3. Some differences arose between the parties and accordingly in accordance with Clauses 13 and 14 of the agreement dated 21-5.1992 the determination of the liabilities and valuation of assets (other than fixed assets) was referred to the joint audit of two auditors, one nominated by each party. It is stated that since the dispute could not be resolved, fresh agreement was executed as is reflected in the letter dated 23-5-1993, according to which, as stated by the petitioners, the bank guarantees were not to be encashed unless the joint audit was completed and the accounts were finally settled.
4. The agreement dated 21-5-1992 contains arbitration clause, which is as follows:- "(11) In case of any difference or dispute arising out of this agreement, or relating to the meaning, intent, import or interpretation of any of the terms and conditions of this agreement including the 'Instructions To The Bidders', between the Seller and the Buyer and their Successors, assigns or legal representatives, the same shall be referred to the Secretary, Ministry of Finance, Government of Pakistan for decision who shall be the sole arbitrator and his decision shall be final and binding on the parties subject to the remedies available under the Arbitration Act."
5. The present petitioner filed a petition under section 20 of the Arbitration Act, in the Court of Senior Civil Judge, Lahore, for reference of the dispute to the named arbitrator in accordance with the arbitration clause. Alongwith this petition an application under section 41 of the Arbitration Act was also filed for interim relief in the following terms:-- " the respondents be restrained from encashing the Bank Guarantees furnished by Union Bank Ltd.
And Bank Guarantee dated 23-5-1992 furnished by MA. Mahran Bank Ltd. Or from taking any action to the detriment of the rights of the petitioners."
6. The Privatization Commission (respondent No,2) filed reply to this application contesting the proceedings before the learned trial Court and objecting to the interim relief sought by the petitioners.
7. On 1-12-1993, learned Senior Civil Judge, Lahore passed an elaborate order observing that no injunction could be granted against payment of the instalments by the petitioners. The operative part is as follows:-- "The balance bid price of Rs,3,20,76,000 was to be paid by the petitioners till 23-5-1995. This amount is subject to the adjustment calculated by the auditors. The auditor appointed by the respondents has given an amount of Rs,2,95,94,725 as amount to be adjusted towards the liabilities. If this amount is accordingly adjusted then the remaining amount towards bid price is calculated as Rs,24,81,275 which shall be paid by the petitioners in two equal instalments, one on 23-5-1994 and the other on 23-5-1995 and subject to this decision the bank guarantee to the extent of Rs,24,81,275 shall remain intact and the bank guarantees to the extent of the remaining amount shall be released. In the alternate the petitioners can furnish a fresh bank guarantee for the payment of an amount of Rs,24,81,275 while withdrawing the previous bank guarantee given for the bid price. So far as the question of stocks are concerned, an amount of Rs,1,67,66,948 has already been paid by the petitioners. The remaining amount comes to Rs,5,20,57,823, which has to be paid by the petitioners in three equal instalments and as per the arguments of the learned counsel for the petitioners, the petitioners are ordered to pay another instalment to the tune of Rs,1,73,52,607 within 15 days from this date."
8. In para. 7 of the Order dated 1-12-1993 the learned Senior Civil Judge further observed that:-- "Before parting with this order I would like to maintain here that as per the report of the two auditors the disputed amount, according to their reports, comes to Rs,2,24,43,100 for which I hold that a dispute has arisen under clause 11 of the admitted agreement executed in-between the parties on 21-5-1992. So, I hereby refer the matter under reference to the Arbitrator i,e, to the Secretary, Ministry of Finance, Government of Pakistan, for decision, who shall be the sole arbitrator in this case."
9. It is admitted position that none of the parties challenged Order dated 1-12-1993 of the learned trial Court before any higher forum, thus the same has attained finality. However, subsequently the petitioners filed two applications under section 151, C.P.C. On 31-5-1994 and 6-12-1994. In the first application a direction was sought against the respondents for the release of bank guarantee issued by Mehran Bank Ltd., and also restraint order was sought against the respondents: "from extracting any further payments from the petitioners through encashment of bank guarantees or otherwise". Through second application a direction was sought against the respondents in the following terms:-- "To obtain the requisite permission from the State Bank of Pakistan for the release of guarantee and margin with Mehran Bank Ltd., and till such permission is granted status quo be maintained with reference to further payments."
10. Both these applications were dismissed by Rana Riaz Ahmad Khan, learned Civil Judge First Class, Lahore, to whom the 'case was subsequently entrusted for disposal, vide his Order dated 20- 12-1994. This last order of the learned Civil Judge has been challenged in the present Revision Petition.
11. Mr. Shahzad Jehangir, Advocate, learned counsel for respondent No,2 has raised preliminary objection against the maintainability of this Revision Petition as according to him the impugned order was passed by the learned Civil Judge on the said applications which were filed under section 151, C.P.C., therefore, Revision Petition against such a discretionary order was incompetent under section 115 of the C.P.C. He placed reliance on Haji Muhammad Zaman v. Zafar Ali Khan and others (PLD 1986 Supreme Court 88), Abdul Rehman Wahla v. Dr. Sher Dil Batra (PLD 1986 Supreme Court 234), Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 Supreme Court 53) and Abdul Hameed v. Ghulam Muhammad etc. (1987 SCM R 1005). These cases are not of much help.
12. It is correct that the High Court does not ordinarily interfere in revisional jurisdiction with an order passed under section 151 C.P.C. In the exercise of discretionary jurisdiction. But this is not an absolute rule, as revision petition under section 115, C.P.C. Is competent where the subordinate Court fails to exercise its inherent jurisdiction or where the other is perverse or illegal. Reference may be made to the judgments in the cases of Ikram Bus Service and others v. Board of Revenue, West Pakistan and others (PLD 1963 Supreme Court 564), Qaim Din and another v. Mistri Muhammad Irahim (PLD 1960 (W.P) Lahore 296) and Falah-ul-Momineen Trust v. V. Abdullah (PLD 1970 Karachi 179).
13. On the merits of this revision petition, Mr. S.M. Masood, Advocate, learned counsel for the petitioners submitted that the dispute between the parties relates to the losses in stock which occurred during the intervening period between the date of execution of agreement and the handing over of the Unit to the petitioners. According to him this dispute covers an amount of Rs,2,20,00,000 which is differential between the amounts determined by the two auditors, one appointed by each party. Mr. Azmat Saeed, Advocate who also appeared on behalf of the petitioners submitted that the petitioners wanted the implementation of Order dated 1-12-1993 passed by the learned Senior Civil Judge, Lahore on the petition under section 41 of the Arbitration Act. He further contended that the petitioners, under this order have discharged the obligations, whereas the respondents have failed to discharge their obligations. Learned counsel for the petitioners argued that the order passed by the learned Civil Judge dated 20-12-1994 dismissing their applications was not warranted as the relief sought in these two applications ought to have been granted in view of the fact that the respondents had failed to discharge obligations in pursuance of the Order dated 1-12-1993.
14. Mian Tariq Sultan, Advocate, learned counsel for respondent No,1 (G.C.P.) submits that the dispute relates to the valuation of net assets which have been referred to ' arbitrator by the learned Senior Civil Judge, Lahore.
15. It is admitted position that the order dated 1.12-1993 passed by the learned Senior Civil Judge, Lahore has been accepted by both the parties as the same was not challenged by any of them.
This order consists of two separate parts. The second part as contained in para.7 of the order related to the reference of dispute with regard to the amount of Rs,2,24,43,100, the differential amount between the decision of the two auditors, which has been referred for determination to the arbitrator under clause 11 of the agreement dated 21-5-1992. The other part of the dispute relates to the payment of the undisputed sale price of the shares and stock. This has been resolved by the learned Senior Civil Judge in para. 6 of his Order dated 1-12-1993, relevant portion whereof has been reproduced earlier in this judgment.
15. The learned counsel for the parties argued that they wanted implementation of the order dated 1-12-1993. Since the order of reference to arbitrator dated 1-12-1993 was not challenged by the petitioners, the aforesaid two applications under section 151, C.P.C. Submitted by the petitioners were not maintainable as the relief sought therein was in conflict or at least at variance with the decision given by the learned Senior Civil Judge earlier on 1-12-1993. The learned trial Judge could not re-open the matter, through miscellaneous applications, which was decided by his learned predecessor on 1-12-1993 and had attained finality. Thus the order passed by the learned trial Court on 20-12-1994 dismissing petitioners' applications under section 151, C.P.C. Is unexceptionable.
16. None of the conditions enumerated in section 115 of the C.P.C. Are present in this case justifying interference with the impugned order by this Court. The revision petition is thus without merit and is accordingly dismissed in limine.