1. Naib Shah, plaintiff-appellant herein, has filed this appeal against the judgment and decree dated 2-11-1993 of the learned District Judge, Gilgit whereby objections filed by the plaintiff- appellant against the Award of the Arbitrator were not accepted and the Award was made the Rule of the Court with the result that the suit of the plaintiff-appellant was dismissed.
2. Briefly stated the facts of the case are that the plaintiff-appellant filed a civil suit against Mst.
Rubab Khatoon, defendant-respondent No,1 herein and four others, claiming restitution of conjugal rights against defendant-respondent No,1 and for issuance of permanent injunction against defendants-respondents Nos.2 to 5. He claimed that defendant-respondent No,1 is his legally- wedded wife and is now living in the house of defendants-respondents Nos.2 to 5, who are not allowing her to live with plaintiff-appellant.
3. Defendants-respondents contested the suit by submitting written statement, to which replication was also filed by the plaintiff-appellant. The learned Trial Judge after framing the issues and recording evidence of the parties, dismissed the suit of the plaintiff-appellant, vide judgment dated 16-10-1990.
4. Dissatisfied with this judgment/decree, the plaintiff-appellant filed an appeal before the District Judge, Gilgit where at the consent of the parties, the matter was referred to "Shari Arbitrator" for resolving the controversy with regard to the existence of a valid Nikah between the plaintiff- appellant and defendant-respondent No,1. In this connection, with the consent of the parties, Syed Hussaini, a resident of Gulmit, Tehsil Nagar No,2 was appointed as the sole Shari Arbitrator, who after some time, submitted his Award on 16-6-1993. The learned District Judge then invited objections, if any, by the parties. The plaintiff-appellant filed his objections against the Award, to which defendants-respondents filed reply. In support of his objections, the plaintiff-appellant recorded his statement and got examined two other witnesses, namely, Zawar Malik Shah and Muhammad Ali. In rebuttal, the defendant-respondent No,1, recorded her statement through her Attorney Muhammad Yaqeen and also produced the Arbitrator. The learned District Judge, Gilgit thereafter recorded the impugned judgment and made the Award of the Arbitrator the Rule of the Court, vide his order dated 2-11-1993, which has now been impugned before this Court with a prayer that the same should be set aside and the case be remanded to the District Judge for deciding the appeal on merits.
5. I have heard the learned counsel for the parties at great length and with their valuable assistance have gone through the record very carefully. The only issue between the parties was and is, "whether the Nikah of the plaintiff-appellant with defendant-respondent No,1 is valid or not?"
Admittedly both the parties belong to Shia Sect. The only argument of the learned counsel for the plaintiff-appellant is that the Award was submitted by the Arbitrator at the back of the appellant; therefore, it comes within the misconduct of the Arbitrator. Hence, the same should be set aside. As against this, the learned counsel for the respondents exhaustively argued the case and quoted valuable rulings on the point to which I would refer at proper stage.
6. It is borne out from the record that respondent No,1 succeeded before the Trial Court where the suit of the plaintiff was dismissed. The plaintiff assailed the dismissal of his suit before the learned District Judge, Gilgit where in spite of the strong position of the respondent No,1, she consented that let the case be decided by a "Shari Alim" and then with the consent of the parties, Syed Hussaini was appointed as the sole Arbitrator for giving a Shari Award. However, the learned District Judge in all fairness invited objections against the said Award which were submitted by the appellant. The respondent No,1 filed her replication to the objections, whereafter evidence, pro and contra, was recorded by the learned District Judge who, it may be pointed here, has framed as many as seven issues, including the relief, arising out of the contentions of the parties before him, and after considering the said evidence coupled with the relevant provisions of law, he came to the conclusion that the objections of the appellant are without any force. He then repelled the same and made the Award the Rule of the Court.
7. The record shows that the two witnesses produced by the appellant before the learned District Judge have admitted in most unequivocal words that they were not present when the consent of respondent No,1 was obtained with regard to her alleged Nikah with the appellant. This point has been elaborately dealt with by the Arbitrator who has not recorded the statements of these two witnesses for the obvious reasons that though they were present in the gathering wherein alleged Nikah between the spouses was performed, but actually they were not present at the time and place, where the consent of respondent No,1 was obtained. As such the Arbitrator was legally correct in saying that they were not the material witnesses for the determination of the point in issue, viz. Whether respondent No,1 has given her free consent according to Sharia? The statement of the Arbitrator was recorded by the learned District Judge in the presence of the counsel for the appellant and he was put to test but nothing could be dug out therefrom to discredit his statement making a case for setting aside the Award submitted by him.
8. Now I revert to the legal position under which an Award can be set aside. The same is available in section 30 of the Arbitration Act, which lays down: "An Award shall not be set aside except on one or more of the following grounds, namely:--
(a) That an Arbitrator or Umpire has misconducted himself or the proceedings;
(b) That an Award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35;
(c) That an Award has been improperly procured or is otherwise invalid."
9. True that the Arbitrator has submitted his Award after a lapse of nine months, but a look at the order-sheets makes it clear that the adjournments for submission of the Award were granted in presence of the learned counsel for the parties, therefore, the appellant cannot now turn up and say that the Award should be set aside in compliance of clause (b) of section 30 of the Act. The other aspect of late submission of the Award is but natural. The issue between the parties related to Sharia, therefore, the Arbitrator was required to have given his full attention to the point of controversy between the parties and after due investigation, he submitted his Award showing conclusively that no valid Nikah was proved to have been performed between the spouses. As no valid Nikah was proved, therefore, no question of its repudiation by exercise of option of puberty by respondent No,1 arises, as the very existence of a valid Nikah has not been proved on record. With reference to this, I hold that a party participating in proceedings before the Arbitrator is estopped from challenging arbitration agreement, reference or award, (PLD 1981 Azad J&K 71). Again I get full support from another authority reported in (1981 CLC Karachi 379) which says: "defendants having consented to the appointment of Arbitrator, having taken part in proceedings before such Arbitrator and having taken a chance for a favourable decision, are estopped from challenging the Award on ground of having not been appointed in accordance with section 8 of the Arbitration Act". In the instant case, the Arbitrator' has given reasons for the conclusion arrived at in this Award submitted by him. Even if the Arbitrator does not give reasons in support of his Award, the authority reported in (1983 CLC Lahore 513) comes to his rescue which reports that an Arbitrator is not bound to state reasons or his failure to do so, is not misconduct on his part.
10. From what has been discussed above, I have come to the inevitable conclusion that the impugned judgment is well reasoned, based on correct appreciation of law and fact. The parties have appointed the sole Arbitrator with their free will and consent and fully participated in the arbitration proceedings, therefore, none of them can turn around now and assail it. The Arbitrator fully investigated the point at issue between the parties from Shari point of view, therefore, character of the Shari Arbitrator cannot be impeached by the appellant. The appellant miserably failed to prove any plausibility for a wrong Award and also to disbelieve the Arbitrator, who was appointed with their free will and consent. The result is, that this appeal fails and is dismissed with no order as to costs.