1. ' WAJIHUDDIN AHMED, J.---Mr. S.A. Nizami, a former Law Secretary, was the sole arbitrator in the referred dispute between the parties. The arbitration proceedings, effectively, commenced on 28- 5-1989 and, by consent of the parties, the time for rendering the award was extended up to 25-12- 1989, written agreements being submitted by then. Without, however, seeking any further extension and without making the award, the sole Arbitrator issued a notice dated 2-1-1990 to the parties to file further pleadings, if desired, before 18-1-1990. None of the parties filed any further pleadings nor objected to the continuation of the proceedings beyond the time allowed. An award, apparently after about a year, was signed on 6-1-1991 and filed on 10-7-1991, the petitioner objecting and the respondent moving an application for extension of time till the date of making of the award. The latter application was numbered as C.M.A. No,1102 of 1992 in Suit No,827 of 1991, the suit being founded on the award itself. A learned Judge in Chambers of the High Court of Sindh allowed the application for extension, in terms of section 28(1) of the Arbitration Act, 1940, on 25-6-1992. High Court Appeal No,97 of 1992, taken by the present petitioner before a Division Bench of the same Court, was dismissed on 3-3-1998, giving rise to this leave petition.
2. ' Before the High Court reliance for extension of time was placed on WAPDA v. Khanzada Muhammad Abdul Haque & Co., PLD 1990 SC 359, and in particular the under-noted observation occurring therein: "Accordingly, we hold that the appellants are estopped from challenging the award that it is beyond the time and they waived their objection that the arbitrator ceased to have jurisdiction to proceed with the arbitration as according to their own statement in the appeal the arbitrator had entered upon the reference on 12-7-1975 and issued notice for 17-1-1976 they continued to appear before the arbitrator without any objection till the last date when the award was given without any objection or demur. If they had raised the objection at the earliest opportunity any of the parties would have applied to the Court for extension of time. Accordingly the award is not invalid on this ground."
3. ' Two-fold contentions have been raised before us by Mr. A Latif A Shakoor, the petitioner's learned counsel. In the first place, it is contended that there was no acquiescence or waiver on the part of the petitioner as regards the continuation of the proceedings before the learned Arbitrator nor did the petitioner participate in such proceedings after the expiry of the time allowed to the Arbitrator to render the award. Next it is urged, relying on Hari Shanker Lal v. Shambhu Nath, AIR 1962 SC 78.
4. That, upon expiry of the time, the arbitrator became functus officio and thus stood precluded from making the award. The first of these is a question of fact and the learned Single Judge in the High Court as well as the appellate Bench has held against the petitioner. Nothing has been placed before us to show that any perverse view on the material available was taken and, therefore, the question of fact, thus, decided is not open for examination at this level.
5. As to the second contention that an arbitrator becomes functus officio once the time allowed for making the award has run out, the position may or may not be such but then there is a specific power and clear jurisdiction vesting in the Court to extend the time even after the award has been made, albeit beyond time. Section 28 of the Arbitration Act is this:-- "28. Power to Court only to enlarge time for making award.-- (1) The Court may, if it thinks fit, whether the time for making the award has expired or not and whether the award has been made or not, enlarge from time to time the time for making the award.
(2) Any provision in an arbitration agreement whereby ,the arbitrators or umpire may, except with the consent of all the parties to the agreement, enlarge the time for making the award, shall be void and of no effect."
6. Thus, once time has lawfully been extended for making an award, even though ex post facto, the question that the arbitrator at the time he made the award had become functus officio or not no longer remains a question open for any further objection.
7. ' Here note may be taken of Pakistan v. Gayer & Co., PLD 1964 Karachi 3, where a Division Bench of the erstwhile High Court of West Pakistan, while dismissing a Letters Patent Appeal against the setting aside of an award, rendered beyond time, made an observation as reproduced below:-- "It is, therefore, abundantly clear that the arbitrator was not taking the reference made to him seriously and protracted the proceedings on flimsy grounds. He failed to discharge his duties properly. In these circumstances the learned Single Judge was perfectly justified in refusing to exercise his discretion in favour of the appellants. We find no ground to interfere with the view taken by the learned Single Judge in this respect. We would, therefore, repel the contentions raised on behalf of the appellants and hold that the learned Single Judge was perfectly justified in the circumstances of the case in setting aside the award."
8. ' The opinion of the High Court, as reported and reflected above, in the circumstances of the case, is not open to any exception. However, each case has to be decided on its own facts. The period of delay involved in the precedent case ranged between July 1954 and August 1957 and besides lack of interest there was questionable protraction as well, each of which went against upholding of the award. None of these is applicable to the present case, all the more so when no objection to the continuation of the arbitration proceedings beyond the time stipulated was raised by the petitioner at the crucial juncture when the proceedings were still pending examination. Much the same may be said regarding Fazal Textile Mills Ltd. v. Sattar Cotton Ginning Factory Ltd., 1982 CLC 97, where too an oral request to extend time under section 28 was denied by the Court.
9. For the reasons set out above, we are of the, view that the discretion to extend time in the High Court was correctly exercised. We are further of the view that where the parties agree to a domestic forum, such as that of an arbitrator it is not routinely open to them to question the proceedings merely on technicalities and unless delay is material, detrimental or otherwise unconscionable the Court has ample jurisdiction and clear discretion under section 28(1) of the Arbitration Act to extend the time, which is shown to have been done in the impugned proceedings.
10. There is yet another aspect which has weighed before us and such lies in the fact that the petitioner, according to its learned counsel, has duly objected to the award on merits and the objections are still pending, where matters of substance can always be agitated.
11. ' The petition is dismissed and leave to appeal is disallowed.