' Maulvi Muhammad Zufran and numerous others, on 10-7-1984 filed a representative suit under Order I, Rule 8, C.P.C. Against the defendants for a declaration to the effect that the suit property is ownership of village Shatial, Kohistan and the defendants of village Harban Kohistan have no title thereto.
2. The suit was dismissed in the trial Court on 31-1-1989 and the appeal before the learned District Judge, Mansehra also failed on 30-5-1992. The plaintiffs have come up in revision.
3. The concurrent findings of the two Courts below are attacked by Mr.Shaukat Ali Khan learned counsel for the petitioners on two main points, Firstly, that according to the lists provided by the defendants (Exh.PW1/D1 to Exh.PW1/D4) more or less 600 persons of the village required to be impleaded for which the case needs to be remanded. That if such 600 persons are not impleaded, any judgment in the instant case would not be binding upon them and they would be in a position to challenge it either collectively or individually at any time which would give rise to a chain of multiplicity of suits.
3. Second part of the arguments was, that both the parties had agreed before the District Judge on 14-9-1991 to refer the matter to arbitrators whereupon the matter was in fact so referred to five Ulemas, who gave their award on 1-12-1991. Against such award the plaintiffs submitted objections on 14-1-1992 upon which no proceedings were taken, no evidence pro and contra was recorded and ultimately the learned District Judge had given his own decision without making the award a rule of the Court. That though the award was not made the rule of the Court yet made the basis of the findings.
4. Mufti Muhammad Idrees learned counsel for the respondents resisted the arguments with reference to award on the ground that it was not at all an award and that it was a mere compromise between the parties which subsequently never materialized. The learned counsel was of the view that an arbitration could only be adhered to before the trial Court during the pendency of the suit and matter could be referred to the arbitrators only before the pronouncement of judgment. The learned counsel confined the pronouncement of the judgment to the one done 'by the trial Court and excluded that of the Appellate Court.
5. To controvert this Mr. Shaukat Ali Khan relied upon "Wajid Ali v. Syed Sajid Ali" 1985 SCMR 401 wherein it was held that an appeal is a continuation of the original suit and the Appellate Court has all the authority to exercise every power vested in the trial Court and thus the matter could be referred to arbitrators even by the Appellate Court. In the light of the above ruling, if one refers to the joint application of the parties on file, it is a complete and undisputed agreement for the appointment of arbitrators which were five in number. What reference is made to such 5 arbitrators, is a complete reference to arbitration and what judgment they have given pursuant to such reference, is an award within the contemplation of section 23 of the Arbitration Act. I hold that it was an arbitration and not a simple compromise that did not subsequently materialize.
6. Once it is held that the matter was referred to arbitration after a valid arbitration agreement, then the jurisdiction of the Court to decide the matter is ceased so long as such arbitration agreement is in the field. The Court can only exercise jurisdiction with regard to matters arising out of the award for example the receipt of award, the receipt of objections if any, the examination of evidence pro and contra and the examination of the arbitrator or arbitrators in order to see as to whether they have rightly acted in terms of the reference or not. The jurisdiction of the Court is not resumed until or unless the arbitration is dropped by the parties or the award is declared invalid and no further arbitrators are appointed by the parties.
7. In the instant case the objections on the award were received by the District Judge but no decision was announced qua such objections. If the objections were unfounded, the award required to be made as rule of the Court and the judgment given accordingly.. On the one hand the learned District Judge did not make the award a rule of the Court and on the other hand relied upon it as evidence in the case while giving his own judgment. This was a material violation of law and the learned District judge could not proceed without first deciding the objections over the award.
8. In this view of the matter the case needs to be remanded to the District Judge for proceedings accordingly and thereafter deciding the case in accordance with law but let it be kept aside for a moment till the second point is decided.
9. The second important point was with regard to the impleadment of 600 persons in the amended list to be annexed under Order I, Rule 8, C.P.C. The learned counsel for the respondents argued that the defendants in their very written statement had taken the objection that numerous persons of Harban were not impleaded as party. That this point was decided by the trial Court against which the defendants went in revision which was also dismissed and hence it does not lie in the mouth of the plaintiffs to agitate this matter in the second revision before this Court, for, a second revision' does not lie. It was really an intelligent argument but the learned counsel for the petitioners met it with equal force that till such decisions he was never aware of the names of any people who deserved to be impleaded and that all those persons which could be reasonably known after exercise of due diligence had already been impleaded. Now that when the defendants themselves came up with a list of 600 persons as Exh.PW1/D1 to Exh.PW1/D4, their impleadment has become necessary and this matter of impleadment was never decided by any of the Courts below after when the names of such 600 persons became known to the plaintiffs as well as the trial, Court. The argument is really forceful because when the names of not one or two but 600 persons became known to the Court as well as the plaintiffs, their impleadment had become necessary. Without such impleadment no judgment would have been binding upon them and in case any decision had been given in favour of the plaintiffs, such 600 persons could have come at any time either individually or collectively to challenge such decision. This is neither in the interest of justice nor in the interest of parties because it would have given rise to multiplicity of suits and it is not known as to where the matter would have ended. I, therefore, hold that it was a case of non-joinder of parties and the plaintiffs had not exercised due deligence in ascertaining the names of the people belonging to Harban who have a claim over the mountain in dispute.
10. When once it is held that the suit is bad for the non-joinder of the parties, the case needs to be remanded to the trial Court. For this matter in view, I had kept aside the decision given with reference to the award. It would be useless to remand the case to the District Judge to give fresh decision or award when 600 persons stand non-impleaded. For such non-impleadment the plaintiffs had been negligent and it is because of such negligence that the matter was contested before the first Appellate Court as well as before this Court in revision. In case of impleadment, the defendants are to be reasonably compensated.
11. Consequently, the revision petition is accepted, both the impugned judgments and decrees of the Courts below are set aside and the case is remanded back to the trial Court with direction for the plaintiffs to file amended plaint by adding all those persons, given in the lists Exh.PW1/Dl to Exh.PW1/D4, in the annexed lists to be filed under Order I, Rule 8, C.P.C. On payment of Rs,15,000 as costs. The amended plaint aforesaid shall be filed within seven days after the appearance of the parties before the trial Court and the amount of costs shall be deposited in Court before filing the amended plaint. If the parties still intend to refer the matter to arbitration, they shall be at liberty to do so. The parties are directed to appear before the learned Senior Civil Judge, Kohistan on 2-6- 1996.