This petition under section 115 of Code of Civil Procedure arises out of a suit for recovery of Rs.24,300 as charges for use and occupation of property No.153/1, Talab Bazar, Toba Tek Singh instituted by the respondent against the petitioner. Initially the suit was resisted by the petitioner which led to the framing of various issues, on which evidence of the parties was also partly recorded. However, on 21-4-1990 it was stated by the parties that the suit be referred to Mr. Anees-ur-Rehman Butt, Ex- Councillor, Toba Tek Singh as referee and be decided on the basis of his decision. An order in those terms was passed by the trial Court on 21-4-1990.
2. Mr. Anees-ur-Rehman appeared before the Court on 2-6-1990 and placed before it his decision according to which the petitioner was liable to pay Rs.16,580 to the respondent. On the same day, the trial Court on the basis of that decision passed a decree for recovery of Rs.16,500 in favour of the respondent and against the petitioner.
3. Aggrieved the petitioner filed an appeal which was dismissed in limine by the learned District Judge, Toba Tek Singh, who was of the view that the decree of the trial Court being based upon the statement of the referee was deemed to be a consent decree which was not appealable in view of section 96(3) of Code of Civil Procedure, 1908.
4. In support of this petition Mr. Muhammad Ibrahim Khalid, Advocate has argued that the Courts below have 'acted illegally and with material irregularity in holding that Mr. Anees-ur-Rehman was appointed as a referee. In the submission of the learned counsel Mr. Anees-ur-Rehman was required to decide the dispute after hearing the parties he was an arbitrator notwithstanding that the parties had termed him to be a "referee". According to the learned counsel, the decision given by Mr. Anees-ur-Rehman was an award and the Court should have proceeded upon it in the manner laid down in the Arbitration Act, 1940. In support of this contention reliance has been placed upon Muhammad Hanif Khan and another v. Ghulam Farid Khan PLD 1988 Lah. 250 and Ghulam Farid Khan v. Muhammad Hanif Khan 1990 SCM R 763.
5. Respondent's learned counsel has, on the other hand, reiterated that the parties had clearly stated that Mr. Anees-ur-Rehman be appointed as referee and the dispute be referred to him in that capacity and as such the Courts below were justified in holding that the decision of the referee was binding upon the parties and operated as an admission.
6. The contention raised by the petitioner's learned counsel have force and are amply supported by law. It is true that in the statement made by the parties on 21-4-1990 and the order of reference Mr. Anees-ur-Rehman was described as a referee but it is also to be noted that he was required to decide the dispute after hearing the parties. The difference between the arbitrator and a referee is too well known; to need any detailed comment suffice it to say that while referee is I required to make a statement on his knowledge or belief before the court an ' arbitrator has to decide the dispute after hearing the parties on the basis of material produced before him.
7. From a perusal of the order, dated 21-4-1990 and statement of the parties it would appear that the dispute was referred to Mr. Anees-ur-Rehman for his "decision" which was to be arrived at after hearing the parties. When Mr. Anees-ur-Rehman appeared before the Court he did not make any statement but instead produced a written decision in which it was expressly stated that he had been appointed as an arbitrator and having heard the parties and had arrived at conclusion that the petitioner was liable to pay a sum of Rs.16,580. In face of this categorical statement, it would not have been held that Mr. Anees-ur--Rehman has acted as a referee and not an arbitrator. The pronouncement of the Supreme Court in Ghulam Farid v. Muhammad Hanif and others 1990 SCM R 763 is conclusive of the controversy.