' This Constitution petition has been filed to assail the order dated 13-9-1992 passed by the learned Additional District Judge, Nankana Sahib, respondent No,1 whereby petitioner's application under section 17 of the Arbitration Act for making the award rule of the Court was dismissed.
2. Briefly stated the facts of the case are that an oral agreement had taken place between the parties for running some business but subsequently disputes arose which were sought to be resolved through the written agreement dated 9-11-1985 (Annex. `A'). Under the agreement M/s. Sh.
Zahoor Ahmad, Haji Muhammad Anwar and Mian Muhammad Ashraf were appointed as Arbitrators for the said purpose. They announced the award on 17-1-1986 holding respondent No,2 liable to pay the disputed amount to the petitioner within sixty days. The petitioner filed an application under section 17 of the Arbitration Act (Annex. 'B') for making award rule of the Court.
Respondent No,2 filed a reply to the said application (Annex. 'C'). On 18-6-1986, the trial Court issued notice to the Arbitrators calling upon them to file the award in the Court. This order was repeated on a. Number of dates. On 8-2-1987, the trial Court noticed that the Arbitrators were not parties to the suit and that the direction issued to them for filing the award was premature.
Therefore, the said direction was recalled and further proceedings were held in the petition. Issues were framed on 12-4-1987. Burden of issue No,6 was placed on the petitioner and that of the other issues, on respondent No,2. The case was fixed for evidence on 28-6-1987. Within a period of about 2 years a number of adjournments were granted to the petitioner and ultimately his evidence was closed under the provision of Order 17, Rule 3 of the C.P.C. With the observation that the petitioner's right of rebuttal was intact. On the same day, the petitioner filed another application under section 14(2) of the Act for a direction to the Arbitrator to file the award in the Court. The prayer made therein was allowed vide the order dated 4-4-1989. This order was challenged before the learned Additional District Judge by way of a revision petition which was accepted on 7-3-1991 and the case remanded to the trial Court for passing a fresh speaking order. After remand, the trial Court passed an order on 4-4-1991 allowing the prayer made in the application under section 14(2) of the Act. This order was again challenged by way of a revision petition which was accepted by respondent No,1 vide order dated 13-9-1992. The revisional Court not only dismissed the application under section 14(2) of the Act but also the application under section 17 of the Act.
3. The petitioner's learned counsel contends that proceedings in the application filed under section 17 of the Act could not have been held without first requiring the Arbitrator to file the award in Court.
He places reliance on the case of "Farid Majid and another v. Muhammad Nawab" (PLD 1976 Karachi 891). He next submits that the provisions of Article 178 of the Limitation Act were not applicable in relation to an application under section 17 of the Arbitration Act. In this connection, he relies on "Jai Kishan v. Ram Lal Gupta" (AIR (31) 1944 Lahore 398). He further submits that the petitioner had prayed that the award be made rule of the Court. The Court was not justified to call upon the petitioner to produce evidence to support the award. Instead the Court ought to have taken up the objection petition filed by respondent No,2 and disposed of the same on merits in accordance with the law. According to the learned counsel, the revisional Court could have passed an order in relation to the application under section 14(2) of the Act and not one filed under section 17 of the Act.
4. On the other hand, respondents' learned counsel contends as under:--
(i) The petition suffers from laches. The order dated 13-9-1992 has been challenged with a delay of about 6 months.
(ii) The petitioner had acquiesced in the mode of disposal of his petitions before the trial Court. The trial Court had framed issues on 12-4-1987 and granted as many as 10 opportunities to the petitioner to produce evidence. The petitioner did not produce any evidence, whereupon his evidence was closed under Order XVII, Rule 2 of the C.P.C. After that no appeal was filed against the said order which attained finality.
(iii) The petitioner has not approached the Court with clean hands. He has suppressed material facts. The petitioner was in possession of the original award since the year, 1986 and he never placed the same on the record. Instead, he filed an application under section 14(2) of the Act (after his evidence was closed) for a direction to the arbitrators to produce the award. The said application was filed with mala fide intentions.
5. In reply the petitioner's learned counsel submits that the only question before the Revisional Court was as to whether the order dated 4-4-1991 was in accordance with law or not? The Court had no power to usurp the jurisdiction of the trial Court and decide the main petition filed under section 17 of the Arbitration Act. He submits that even if the order closing the petitioner's evidence holds the field still the respondent should have been required in the main petition to lead evidence in support of objection petition and thereafter the petitioner would have been given an opportunity to produce evidence in rebuttal. This course was necessary because the burden of all the issues except issue No,6 was placed on respondent No,2.
6. Admittedly, the order dated 4-4-1991 was passed by the learned Civil Judge on an application filed under section 14(2) of the Arbitration Act. The operative part of the said order reads as under:- - "In view of the above, I recall the previous orders made on and after 8-2-1987, except those concerning framing of issues, filing of award and filing of objections by the parties. The parties would be called to lead the evidence accordingly. The application filed under section 14(2)
Arbitration Act is accepted accordingly."
The revisional Court has given cogent reasons for setting aside the above order. In the facts and circumstances of the present case, there was hardly any justification to call upon the arbitrators to file the award in the Court because, as per his own admission in para. 2 of the application filed for making the award rule of the Court, a copy of the award was handed over to the petitioner on 17-1- 986 and thereafter the original award was delivered to him by the arbitrators on 19-3-1986.
Surprisingly, the petitioner never cared to place the original award or its copy on the record so as to justify the proceedings on his application for making the award rule of the Court. The provisions of section 17 of the Act deal with cases where the award actually comes before the Court either through a party or the arbitrator. Once an award comes before the Court then the Court has got jurisdiction to take further proceedings in accordance with the law and pass a decree thereon. The scheme of section 17 of the Act is that after an award is filed in the Court then an opportunity is given to the party challenging its legality or correctness to file an objection petition to set side the award. Such a petition has to be filed within a period of 30 days under Article 158 of the Limitation Act, failing which the party in whose favour the award is made is entitled to a decree in his favour. If the objection petition is dismissed on merits, then also the party holding the award in his favour is entitled to a decree. The above exercise contemplated under section 17 of the Act is necessary if the award has been filed in the Court. In the present case, the award and its copy though in possession of the petitioner, was never filed in the Court, therefore, further proceedings under the provisions of section 17 of the Act were merely an exercise in futility.
7. The petitioner's learned counsel has heavily relied on the judgment in the case of Farid Majid and another in support of his contention that the application filed under section 14(2) of the Act could not be dismissed for want of the petitioner's evidence and that burden of showing award to be bad and as such liable to be set aside lay on the respondents. In the above cited case, the award was not denied by the respondent. In fact, he had agreed to accept it on modified terms. Moreover, the party having the award in his favour had filed a photo copy of the award with his application for making the award rule of the Court and passing a decree in terms thereof. In the present case, the very award is denied by the respondents and the petitioner despite having the original award as well as its copy in his possession, never cared to file the same in the Court. Therefore, the revisional Court was justified to pass the impugned order.
8. For the foregoing discussion, I do not find any merit in this petition which is dismissed leaving the parties to bear their own costs.