1. ' IFTIKHAR MUHAMMAD CHAUDHRY, J.---Brasstacks of this case are, that on 9th October, 1969, a Partnership Deed was executed between appellant Ejaz Ali Siddiqui, his father and two brothers Shaukat Ali and Irshad Ahmad, as well as Agha Ahmad Shah, Mr. Abdul Wahid and Mir Karam Khan, in pursuance whereof, latter surrendered their rights and shares in old concern of Messrs National Mining Corporation, Quetta, in favour of appellant Ejaz Ali Siddiqui, his father and two brothers, named above. As far as Agha Ahmad Shah is concerned, he was partner in the old concern, therefore, he was allowed to continue to hold his previous share. The name and style of partnership was designated to be National Mining Corporation. In 1977-78, Rana Irshad Ahmad Khan and Chaudhry Muhammad Iqbal (respondents) obtained mine from National Mining Corporation for raising coal on royalty basis at the rate of Rs,35 per ton. It is the case of respondents that they developed the mine and installed machinery for the purpose of extracting coal. It so happened that in the year, 1991, appellant Ejaz Ali Siddiqui alongwith other sharers sold the rights of Mine to Mir Changez Ahmad Kurd and Mir Kamran Ahmad Kurd sons of Mir Abdul Wahid Kurd. On attaining the partnership rights, differences arose between the respondents and the new owners, as they were not permitting them to raise the coal. As such, to settle the dispute, the parties entered into an Arbitration, in pursuance whereof, as per Arbitration Agreement, dated 29th June, 1991, the new owners of the Corporation namely Mir Changez Ahmad Kurd appointed Haji Khan Bahadur and Muhammad Murad Kurd as Arbitrators to determine the price of machinery, cost of labour and other expenditures. Whereas respondents appointed on their behalf, Haji Abdul Raziq and Haji Khuda Bakhsh as Arbitrators for decision with the owners, in respect of the mining machinery, underground and surface. These Arbitrators vide Award, dated 14th July, 1991, held the respondents entitled to receive rupees twenty-eight lacs and directed the new owners of the Corporation to make payment of this amount, immediately to them. It is an admitted fact that this Arbitration Award was not made as 'Rule of the Court', as in this behalf, no such request was made.
2. Subsequent thereto, on 12th November, 1991, another Arbitration Agreement was executed between respondents and appellant Ejaz Ali Siddiqui, wherein he was designated to be Party No,2, being the Managing Director of National Mining Corporation, Narwar. Later on, statedly behind the back of appellant, sole Arbitrator pronounced the Award on 24th December, 1991. In the concluding para., it was mentioned that the respondents are in total entitled to the sum of Rs,28,00,000 plus Rs,21,60,000 equal to Rs,49,60,000, to which appellant is bound to pay them, after eight months, from the date of finally compiling the Award. As such, immediately after the pronouncement of Award, no application was submitted before the competent Court of civil jurisdiction, for making the Award as 'Rule of the Court'. However, on 24th November, 1992, an application under the Arbitration Act, 1940 for making the Award, dated 24-12-1991, as 'Rule of the Court' was submitted by respondents. It is noteworthy that in the application, nothing was stated in respect of earlier Arbitration Award, which took place between the respondents and the new owners of National Mining Corporation. Appellant-petitioner contested the application and pointed out therein, inter alia, that on 11th July, 1991. Mir Kamran Ahmad Kurd and Mir Changez Ahmad Kurd, purchased share of 75 per cent. Of the remaining partners in the sum of rupees fifty-four lacs and this amount was to be paid by them to the partners, within eighty days and on account of change of ownership, the respondents opted, not to work with the new owners and demanded that they should be paid, for the machinery installed by them and for the works done in the mine. Accordingly to solve the dispute, matter was referred to four Arbitrators, details whereof, have already been given above, who gave Award, declaring that respondents are entitled for rupees twenty-eight lacs in lieu of machinery and other expenditures, incurred by them in the Mine. As at that time, respondents also owe an amount of rupees twenty-four lacs to appellant-petitioner, therefore, on payment of four lacs in cash, the amount of rupees twenty-eight lacs was adjusted. But despite final settlement between the respondents and the Firm and for the fact that appellant had no concern with the firm, the respondents kept on pressing their demands for more money and subsequently under the conspiracy and with the collusion of Arbitrator, it was arranged that he would intervene and call upon the appellant to enter into an Agreement of Arbitration with the respondents, with clear understanding that the question of arbitration already decided shall be upheld, ratified and legalized. Consequently the appellant was compelled, coerced and persuaded through mis- representation and deception to enter into Arbitration Agreement. Accordingly the appellant on 23rd December, 1991, appeared before the Arbitrator and found out the mala fides of the respondents and the Arbitrator. Except certain discussion between the parties and the Arbitrator, no further proceedings were taken by the Arbitrator. Inasmuch as no witness was examined, because the appellant explained to Arbitrator that he no longer represents the Firm and is not in a position to re-open the issue, already settled between the parties through Arbitration. With the result, the proceedings were adjourned sine die. After this hearing, the Arbitrator never took up the matter nor recorded statement of any witness in his presence nor he was afforded opportunity to place his case and to produce evidence before the Arbitrator. However, on 23rd December, 1991, appellant on having smelled the mala fide intentions of the respondents and the Arbitrator, informed the other partners, who on the next day i,e,, 24th December, 1991, notified to the Arbitrator that he should not take any proceedings in the matter, without their consent. As such, when the Arbitrator came to know about the stand of appellant, he did not take any proceedings in the matter. In the meanwhile in order to cause unnecessary harassment to appellant and his brother, one of the respondent namely Rana Irshad Ahmad disappeared, while the other filed a wrong and malicious report with the police about his abduction and tried to involve the appellant and his brother as culprits. The respondent Rana Irshad Ahmad remained underground for four months.
3. With the result, appellant and his brother were summoned by the police on many occasions and kept them sitting in the police station for many hours, merely to cause harassment and compelled them to accept unreasonable demands of respondents. This exercise continued for about four long months and during this period, behind the back of appellant, on 24th December, 1991, purportedly Arbitrator pronounced his Award, without informing the appellant and it appears that with the connivance of respondents, the Arbitration Award was written somewhere in September, 1992, but by anti-dating the same, it was shown to have been written on 24th December, 1991. After explaining the above background of the case, the appellant filed following objections under sections 30 and 33 of the Arbitration Act:--- "(A) That as per paras. 1, 2 and 3 of the application, applicants' case is that differences forming subject-matter of Arbitration Agreement related to applicants' claim arising out of development made and machinery installed in coal mines of the Firm (National Mining Corporation). As such, the Arbitration Agreement and Award are not enforceable and are invalid for following reasons:---
(i) On their own showing respondent had ceased to be partner in Firm (National Mining Corporation) following sale by him of his shares thereto;
(ii) Admittedly, independently of the Firm, there were not differences between applicants and objector-respondent so as to be subject-matter of an Arbitration Agreement or of Arbitration proceedings;
(iii) As ex-partner, respondent had no express authority to refer any dispute relating to business of the Firm to arbitration;
(iv) Even under law, implied authority of a partner does not empower him to submit a dispute relating to the business of the Firm to arbitration. In this behalf attention is invited to section 19 of the Partnership Act, 1932:---
19. Implied authority of partner as agent of the firm.-- (1) Subject to the provisions of section 22, the act of a partner which is done to carry on, in the usual way, business of the kind carried on by the firm, binds the firm.
4. ' The Authority of a partner to bind the firm conferred by this section is called his ' implied authority'.
(2) In absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to---
(a) submit a dispute relating to the business of the firm to arbitration,
(b) to (h) ...........................................................................................................
(B) That in the circumstances, the agreement in question is not covered by definition of Arbitration Agreement as contemplated by section 2(a) of Arbitration Act, 1940. It is not with respect to present or future differences.
(C) That neither the Award was made nor announced in presence of respondent nor for that matter any notice thereof was given to respondent. Therefore, filing of award is barred by time as contemplated by Article 178 of the Limitation Act, 1908.
(D) That the dispute in question was between the applicants on the one side and National Mining Corporation (a partnership firm) on the other therefore, the application against the answering respondent is not maintainable.
(E) That the National Mining Corporation is a Firm having 5 partners, therefore, the application is bad for misjoinder and non-joinder of parties.
(F) That award is also illegal, unjust and arbitrary and no reasons have been given in the award as required under section 26-A of the Arbitration Act, 1940.
(G) That in fact at the time of the execution of Arbitration Agreement, dated 12-11-1991, the Mine belonged solely to Kamran Ahmad son of Ahmad Shah and. Mir Changez Ahmad son of Abdul Wahid Kurd and before that the dispute between the applicants on the one side and the Firm on the other had already been decided by 4 Arbitrators on 14-7-1991, holding that applicants are entitled to payment of Rs,28 lacs in lieu of their interest in the Mine (Machinery and development work done in the Mine), therefore, there was no dispute between the applicants and the respondents to be decided by the arbitrator on 12-11-1991 in connection with the Mine, hence the Arbitration Agreement is void and is of no legal consequence.
(H) That Arbitration Agreement is a result of coercion, undue influence and fraud.
(J) That even otherwise the Arbitrator has not conducted himself and the proceedings in accordance with law which amounts to misconduct and misconducting the proceedings.
(K) That the arbitrator has awarded Rs,28 lacs as the price of machinery plus Rs,21,60,000 as 2/5th of the price of mine and has failed to take into consideration that the applicants have already received Rs,28 lacs as price of the machinery. On this ground alone the award is liable to be set aside.
(L) That after the decision by the Arbitrators on 14-7-1991, there was no dispute left between the parties to be referred for arbitration.
(M) That the award is not based on any evidence.
(N) That the award is patently bad, because as already explained above, amount of Rs,28 lacs has been paid to the applicants. Suppression of this payment by the applicants and inclusion of the same in the award by the Arbitrator renders the award as void, illegal and arbitrary.
(P) That without prejudice to above objections, application is premature."
5. Both the respondents filed reply to objection application under sections 30 and 33 of the Arbitration Act, wherein it was pleaded, that the Objection Application filed by appellant is time-barred, therefore, liable to be dismissed. The appellant participated and admitted the decision of Arbitrator and also joined in 'Dowai Khair' in this behalf and never raised objection at the relevant time and now by the principle of Waiver-estoppel, he is estopped from challenging the Award. The appellant submitted himself to the jurisdiction of Arbitrator, therefore, now he cannot challenge the Award or the jurisdiction of Arbitrator. The application is not maintainable under the law, in view of the provisions contained in Arbitration Act. On merits, it was admitted by them, to the extent that Mir Kamran Ahmad Kurd and Mir Changez Ahmad Kurd, purchased the shares of remaining partners i,e,, 75% for a sum of rupees fifty-four lacs. It was also admitted that four Arbitrators were appointed, but they were only appointed in order to estimate the price of mine and not expenses of development of mine and second arbitration agreement was executed between the appellant and respondent about the compensation of development of mine, which includes the development of tunnels, construction of power house, labour colony, Roads etc. For the purpose of arbitration agreement, dated 14-7-1991, a list of machinery was also prepared further all these proceedings of arbitration, dated 14-7-1991, were conducted in their absence and behind their back. Respondents also explained that after the Arbitration Award, dated 14th July, 1991, neither Mir Changez Kurd nor appellant Ejaz Ali Siddiqui, paid any amount to them and it has been wrongly stated by appellants that rupees twenty-four lacs were outstanding against respondents and after payment of rupees four lacs in cash, the amount of rupees twenty-eight lacs was adjusted. In fact the appellant has not paid a single penny to respondents. It was further stated that factual position is that respondents have no concern with the Firm or other partners and they have entered into Arbitration Agreement, with appellant. They had spent all they had and whatever they earned from this business, therefore, appellant is responsible for the amount of machinery and development and he sold his share to his partners. It was further emphasised that rupees twenty-eight lacs were never paid to them. Allegations of appellant that he was coerced, compelled or persuaded through misrepresentation or deception to enter into Arbitration, were repudiated, as according to them, appellant entered into Arbitration Agreement, dated 12th November, 1991, to settle the dispute through Arbitrator. It was further stated that Arbitrator called some other Mine owners on 23rd December, 1991 and after taking their verbal statement in presence of appellant, asked the appellant, who admitted his liability to pay Rs,49,60,000 to respondents. On his admission, the Arbitrator and other persons present there, made Dowai Khair'. The appellant had full opportunity to place his case before the Arbitrator. He has again wrongly stated that Arbitrator wrongly included rupees twenty-eight lacs which he has already paid to respondents. He had never paid them rupees twenty-eight lacs. The reply to objections raised by appellant under sections 30 and 33 of the Arbitration Act, were answered as under:--- "LEGAL OBJECTIONS:---
(A) That the objection application filed by the respondent is time-barred, therefore, liable to be set aside.
(B) Respondent participated and admitted the decision of arbitrator as well as participated in Dowai Chair in this behalf and never raised any objection at the relevant time, now by the principle of waiver, estoppel he is estopped from challenging the award.
(C) The respondent submitted himself to the jurisdiction of Arbitrator, now he cannot challenge the award or the jurisdiction of Arbitrator.
(D) The application is not maintainable under law in view of the provisions contained in the Arbitration Act.
14. The applicant submitted his reply to objection raised under sections 30 and 33 of the Arbitration Act as under:---
(A) That the respondent was partner as well as Managing Director of National Mining Corporation and all transactions were made between applicants and respondent. And for all purposes respondent deal in all matters, further, respondent received the amount for machinery installed by applicant and development of mines made by applicants from his other partners, therefore, solely he is responsible for the amount due in his personal capacity.
(i) Contents are not admitted. That the respondent had sold his share to other partners which include the price of machinery installed by applicants and price of development of mines made by applicant, therefore, he is responsible for payment. Further, he admitted his liability before the arbitrator, now he cannot change his position to avoid his liability. According to award he is personally liable to pay Rs,49,60,000.
(ii) Contents are not admitted. There was a dispute between the parties and to settle the same an agreement for arbitration was executed. The award is very clear in this behalf.
(iii) That the respondent is liable to pay in his personal capacity as stated in reply to clauses (i), (ii).
(iv) Contents are not admitted detailed reply has been given in the reply to application, however, it is not out of place that respondent was Managing Director of the firm and not an Agent, and he was liable for the amount in his personal capacity as he received the amount in respect of development as well as machinery.
(B) That the contents are not admitted. Factually there was a dispute between applicants and respondents which was resolved by the Arbitrator.
(C) That the contents are not admitted. The award was announced in presence of respondent who admitted the same and promised to pay the same within stipulated time. According to the terms of the award the respondent has to pay Rs,49,60,000 to the applicants within eight months and if respondent failed to pay the said amount within time then the applicant will at liberty to file the award in Court and get it/make it rule of Court in accordance with law and get recover the amount. The award was made on .24-12-1991 and eight months expired on 24-8-1992. Thereafter, applicants approached the arbitrator who after his satisfaction permitted the applicants to file the application for making the award rule of Court. The applicants submitted application on 22-10-1992 for making the award rule of Court. Therefore, the application is within time.
(D) That the contents of ground (C) are not admitted. The respondent was Managing Director of National Mining Corporation thereafter, on 11-7-1991 the respondent received Rs,54 Lacs from other shareholders which include the price of machinery installed by the applicant as well as developments made by the applicants, therefore, when arbitration agreement 12-11-1991 was executed he was not partner of the National Mining Corporation and thereafter, when he participated in the arbitration proceeding he was not partner or Managing Director of National Mining Corporation and he is responsible for all the liabilities in his personal capacity. Further, according to award he has to pay Rs,49,60,000 in his personal capacity. Therefore, in view of above facts National Mining Corporation have no concern with the present award.
(E) That the contents of ground (E) are not admitted as explained in answer to ground D the respondent is liable to pay the said amount in his personal capacity. Therefore, there is no need to join any other person in the present proceedings nor award set any liability on any other person except on respondent.
(F) That the contents of ground (F) are not admitted by reason of admission of respondent he is estopped from raising such objections.
(G) Contents of ground (G) are not admitted as stated and respondent wrongly stated that there is no dispute between the applicants and respondents. A detailed reply has been given above.
(H) The contents of ground (H) are not admitted if the Arbitration Agreement was result of coercion, undue influence and fraud why he did not take legal action against the same and on the contrary participated in the arbitration proceedings.
(J) That the contents of ground (J) are not admitted a detailed reply has already been given above.
(K) That the contents of ground (K) are not admitted. The respondents have not paid to the applicants 28 Lacs as price of machinery as alleged.
(L) Contents of ground (L) are not admitted. That there was a dispute between the parties, therefore, they entered into agreement for arbitration.
(M) That the award is in accordance with the law. The arbitrator took oral evidence and also inspected documents and discussed all the matters and after admitting the liability by respondent he gave the award.
(N) That respondent has not mentioned in ground (P) on what grounds objection, application is premature, therefore, the same cannot be replied."
6. ' Learned Trial Court, out of the pleadings of parties, framed following issues for determination:--- "ISSUES:
(1) Whether the objection application filed by the respondent is time-barred?
(2) Whether the respondent is estopped from challenging the award?
(3) Whether the respondent cannot challenge the award or the jurisdiction of Arbitration?
(4) Whether the objections filed by the respondent are not maintainable under the provision of the Arbitration Act?
(5) Whether the dispute in question was between the applicants and the respondent Ijaz Ali Siddiqui or the same was between the applicant and the Firm National Mining Corporation?
(6) Whether there was any arbitration proceedings and award between the applicants and the respondent National Mining Corporation decided by the 4 Arbitrators namely Haji Khan Bahadur, Muhammad Murad, Haji Khuda Bux and Haji Abdul Razik decided on 14-7-1991?
(7) Whether the applicants have received the amount of Rs,28 lacs awarded by the 4 Arbitrators on 14-7-1991?
(8) That after the decision of the Arbitrators on 14-7-1991, whether there was any dispute existing between the applicants and the respondent?
(9) That after selling his share whether the respondent had any authority to refer any dispute between the applicants and the Firm to the Arbitration in his capacity as ex-partner?
(10) Whether the Arbitration agreement and the award filed by the applicants in Court is enforceable?
(11) Whether any notice of the award was given by the Arbitrator to the respondent, if not, to what effect?
(12) Whether the application is bad for misjoinder and non-joinder of parties?
(13) Whether the Arbitrator has misconducted himself and the proceedings?
(14) Whether the award is legal and valid when the same is not supported by any reasons or evidence?
(15) Whether the award can be converted into decree to be passed against the respondent what should the order be?
(16) Whether any award on 24-12-1991, was given or the award was antidated given in September, 1992?"
7. ' Respondents led evidence of P.Ws. Muhammad Hussain, Haji Malik Muhammad Mirwani, Muhammad Ikhlaq, and Khalid Javed, Petition-Writer, who produced Arbitration Agreement (Exh.A/1), dated 12-11-1991 and extract from the Register (Exh.A/2). On the other hand, appellant got examined R.Ws. Mir Changez Ahmad Kurd, Khadim Hussain, Haji Abdul Raziq, who produced earlier Arbitration Agreements, dated 29-6-1991 as R/2 and R/3 and the Arbitration Award as Exh.R/1, Muhammad Murad, Sardar Saadat, Abdul Rehman, Haji Khuda Bakhsh, Masood Ahmad, Atta Muhammad, Head Constable, Police Station, Gawalmandi, who produce F.I.R. As Exh.R/2-A, and Shaukat Ali, brother of appellant. The appellant Ejaz Ali Siddiqui, also got recorded his own statement. Thereafter, respondent Rana Irshad Ahmad also got recorded statement in rebuttal. He produced Exh.A/5, letter of Authorization executed by Mir Shah Nawaz Kurd, Sole Arbitrator in favour of respondent Rana Irshad Ahmad as well as Arbitration Agreement alongwith affidavit of one Muhammad Khalil son of Jaffar Khan. Respondent Chaudhry Muhammad Iqbal did not make statement before the Court, however, he filed an affidavit, stating therein that the claim of Rana Irshad Ahmad is baseless and they have already received rupees twenty lacs from appellant Ejaz Ali Siddiqui, in pursuance of earlier Arbitration Award, dated 14th July, 1991 and presently nothing is outstanding against the appellant. It may be noted that on his application under Order 1, Rule 10, C.P.C., his name was deleted from the list of applicants, vide order, dated 16th June, 1997.
8. ' The learned Trial Court (Additional District Judge-I, Quetta) vide impugned judgment, dated 30th July, 1997, made the Award, dated 24th December, 1991, as 'Rule of the Court'. As such, instant Civil Miscellaneous Appeal No,25 of 1997 has been filed, wherein request has been made that the Award may kindly be set aside, as the Arbitrator has misconducted himself. Simultaneously Civil Revision No,251 of 1997, has been filed, wherein prayer has been made that the decree awarding Rs,49,60,000 against the petitioner and in favour of respondents be set aside and their claim in such behalf be rejected, with order as to the payment of costs throughout. In the revision, respondents filed Civil Miscellaneous No,170 of 1997, stating therein that there is no provision for filing revision under the Arbitration Act, and the same has been filed under section 115, C.P.C., therefore, it may be dismissed, in the interest of justice with special cost. Notice of this application was given to appellant-petitioner who filed reply, wherein it was explained that Civil Miscellaneous Appeal has been filed under section 39 of the Arbitration Act, scope of which, is to seek setting aside of Award, while the Civil Revision has been filed against the decree passed in favour of respondent, therefore, the objection is not well-conceived.
9. ' Since both the matters arise out of same judgment and decree, therefore, we intend to dispose of them, jointly by this judgment.
10. ' Messrs Basharatullah and Ehsanul Haque, Advocates appeared on behalf of appellant-petitioner, wheres for respondent No,1, Mr. Khushnood Ahmad, Advocate appeared and respondent No,2 was represented by Syed Ayaz Zahoor, Advocate, who filed a statement in writing to the effect that the claim of respondent No,2, has already been satisfied, therefore, he does not want to contest the proceedings.
11. ' It would be appropriate to first of all, deal with the objection of Mr. Khushnood Ahmad, Advocate, concerning, non-maintainability of revision petition. Learned counsel contended that Revision under section 115(1), C.P.C., is only competent, if no appeal lies thereto. According to him, under section 39 of the Arbitration Act, only appeal was competent, which has been rightly filed, therefore, the revision may be dismissed. In support of his contention, he made reference to 1994 SCMR 1893.
12. ' On the other hand, Mr. Basharatullah, learned counsel for appellant, stated that as within the scope of section 39(1) and (vi) of the Arbitration Act, appeal is only competent for setting aside of an Award, therefore, for challenging the decree, passed on basis of Award, appeal would not be competent and a revision will be maintainable. He relied on PLD 1986 Quetta 321.
13. ' We have examined the scope of section 17 read with section 39(i) and (vi) of the Arbitration Act.
14. Both these provisions of law, came for consideration in the reported judgment, relied upon by learned counsel for appellant, wherein it was held that when appellant challenges only order of rejection of application to set aside the Award, the same is appealable under section 39(i)(vi) of the Arbitration Act, and with regard to decree passed on basis of Award, appeal is not maintainable against the decree in view of clear provisions of section 17 of the Act, therefore, the revisional/supervisory jurisdiction of this Court for considering illegality, misexercise or illegal exercise of jurisdiction material irregularity in the proceedings or judgment or glaring violation of law, be exercised. In this behalf, reliance was placed on an earlier judgment, in the case of Amood Kumar Varma v. Hari Parsad Barman and others AIR 1958 All.
720. We have also examined the judgment cited by Mr. Khushnood Ahmad, Advocate, but in our opinion, it has not advanced his case, as far as question of maintainability of revision is concerned, therefore, it is held that for the purpose of setting aside the Award, appeal would be competent under section 39(i)(vi) of the Arbitration Act, and for the purpose of examining the validity of a decree, as no specific provision has been incorporated, therefore, revision would be the only remedy available to the judgment-debtor. As such, Civil Miscellaneous No,170 of 1997, filed by respondent's counsel, is hereby rejected.
15. ' Before proceeding on merits of the case, it is important to note that the Trial Court, while disposing of the matter did not adhere to settled principles of writing a judgment and had passed the same in a slipshod method, without discussing the evidence available on record. Inasmuch as, in respect of the issues, which pertain to misconduct by the Arbitrator, she had mentioned that same were not pressed. Whereas learned counsel for appellant, stated at bar that in view of the objections raised by appellant in reply to application submitted by respondents, they have repeatedly alleged misconduct by Arbitrator and to establish the same, evidence was also led, therefore, how it was possible for them, to destroy their whole case by not pressing such objection. We have also noticed that some of the issues have been treated to be inter-linked with each other by Trial Court, but on perusal of the issues as well as the evidence available on record, it has been found that those issues are absolutely not interconnected, but the Additional District Judge-I, Quetta (Mrs. Tahira Baloch) has attempted to dispose of the matter in a haphazard manner, by ignoring all the principles of law and procedure. We expect from a Judge of her standing to write a proper judgment, which may give impression that it has been delivered after applying judicial mind and with full devotion, because object of delivering the judgment, is not only to dispose of the matter, but it casts a duty upon the Presiding Officer to do justice between the parties, and if such factor lacks in the judgment, it reflects on the ability as well as conduct of the Presiding Officer. We, however, enquired from learned counsel for parties, that if they agree, case can be remanded to some other Judge for passing of an appropriate order, but they requested that matter may be disposed of, at this stage finally, as the parties had already suffered a lot, therefore, in view of their such request, we have decided to dispose of the matter in appeal finally.
16. ' Mr, Basharatullah, learned counsel contended that the objections raised by appellant in reply of application, have not been dealt with, while disposing of Issues 4 to 10, 12 and 13. We enquired from him, when appellant had not separately filed objections on the Arbitration Award, dated 24-12-1991, or on the arbitration agreement within the scope of section 33 of the Arbitration Act, whether the objections incorporated in the reply of application, filed by respondents to make the Award as 'Rule of the Court' can be deemed to be valid objections by appellant? On this, learned counsel Mr. Basharatullah, relied on the judgments reported in PLD 1970 SC 43, PLD 1976 Lahore 1273 and AIR 1997 Mad.
315. Whereas Mr. Khushnood Ahmad, learned counsel stated that if no objections were separately filed or were filed beyond period of limitation, those cannot be considered in law, as it has been held in 1985 CLC 1170, PLD 1994 Karachi 127 and PLD 1996 SC 797.
17. It may be noted that section 33 of the Arbitration Act, does not contemplate that a separate objection must be filed challenging the Arbitration Award, as according to its plain reading, any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an Arbitration Agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits. As far as the process of applying to the Court is concerned, that can be availed by submitting an independent application, after filing of the Award by the person, who is aggrieved from its existence or validity or such objection can be raised by filing reply of the application under section 14 of the Arbitration Act by a person, requesting the Court that the Award may be made as 'Rule of the Court'. As in the instant case, appellant when filed reply of application, he separately raised objections, which have been reproduced hereinabove, therefore, the respondents were also conscious in respect of the said objections, as such, they also submitted rejoinder to his reply for the purpose of answering the objections raised by appellant for setting aside the Award. In this behalf it is to be seen that in the case of Gadiraju Bangarayya and another v. Gottemukkula Ramabhadriraju (AIR 1947 Mad. 315), it was held that 'where after the filing of an award in Court one of the parties to the arbitration, being misled by the order of the Court posting the suit for objections, files objections instead of an application to set aside the award, and the objections not only are in substance an application to set aside the award, but almost so in form, the mistake made by the party is nothing more than an irregularity which is not such as to entitle the Court to overlook his objections and to pass a decree in terms of the award'. In the case of Badri Narayan Agarwala v. Messrs Pak Jute Balers Ltd. PLD 1970 SC 43, it was held that 'the provisions of sections 33 and 32 of the Arbitration Act, 1940 clearly permit a party to an Arbitration Agreement to challenge the existence of such an agreement by filing an application under section 33 of the Act. Section 32 bars a suit to obtain such a relief. The fact that B denied to have signed the contract will not disentitle him to challenge it under section 33 as the words ' any party to an arbitration agreement' in that section include a party who is alleged to be party to an agreement, but who challenges the existence thereof'. In the case of Province of Punjab through the Secretary to Government of Punjab, Communication and Works Department, Lahore and 2 others v. Nadeem & Company, Lahore PLD 1976 Lah. 1273, it was held that 'a challenge to the validity of Award, inter alia, on the ground of challenge to the validity of reference is not only covered by section 33, but can also be made in an application to set aside the award as being otherwise invalid.
18. ' As far as the Judgments relied upon by Mr. Khushnood Ahmad, Advocate are concerned, they deal with the limitation of filing objections beyond period prescribed under Article 158 of the Limitation Act, but this question would not require determination, because the trial Court while disposing of Issue No,1; whether the objection application filed by respondents is time-barred?
19. Concluded that in the present matter, Article 158 of the Limitation Act, is not applicable, thus, the Issue No,1, is resolved in affirmative. No cross-objection against these findings have been filed nor it has been otherwise challenged independently. Thus, for these reasons we are inclined to hold that a person who is party to an arbitration agreement or award, can challenge its existence or validity either by filing an independent application or in the reply submitted to the application filed by other side, seeking indulgence of the Court to make the Award as 'Rule of the Court'. As far as section 33 is concerned, it has not provided special procedure for challenging the arbitration agreement or award and if same have been challenged in the reply, by way of raising objection and the Court has disposed of the same, after framing the issues and recording evidence, it would be deemed that objections raised in the reply of application or making the Award as 'Rule of the Court' has been considered to be independent objections on behalf of the objector, therefore, the objection of learned counsel has no substance. Thus, affirmative findings of the Trial Court on Issue No,4 are reversed and this issue is decided in negative, in view of the discussion made hereinabove.
20. ' Now it would be seen, whether appellant is estopped from challenging the Award or jurisdiction of the Arbitrator in view of Issues Nos.2 and 3. First of all, it is to be borne in mind that admittedly composition of National Mining Corporation was changed, in pursuance whereof, Mir Changez Kurd and Kamran Ahmad Kurd became its owners. At the cost of repetition, it is once again noted that in pursuance of dispute between the new owners, respondents Rana Irshad Ahmad and Chaudhry Muhammad Iqbal, agreed to settle the dispute with them through Arbitrators, whereby both the parties appointed two arbitrators each and obtained an Award, dated 14th July, 1991. As far as this Award is concerned, it has not been disputed by Mr. Khushnood Ahmad, Advocate. After the pronouncement of this Award the remedy available to respondents was to seek its implementation either by it to make the same as 'Rule of the Court' or by following any other legal recourse. These observations are made without prejudice to the claim of any of the party. Surprisingly the respondents did not enforce this Arbitration Award for the reasons, known to them, but on 12th November, 1991, they entered into another arbitration agreement with appellant, who styled himself in the Award as Managing Director of National Mining Corporation Narwar, although after disposing of the total shares by appellant alongwith other shares of other partners, he was no more the Managing Director or the person, who can have any sort of interest in the Corporation. Now the proposition for consideration would be that as to whether the appellant was empowered to enter into second Arbitration Agreement or not? In this behalf, Mr. Bashratullah, learned counsel contended that respondents themselves were conscious of the fact that after selling the shares, appellant had no legal entitlement to settle the dispute with them. Therefore, with this background in their mind, they admitted in para. 2 of application filed by them for making the Award, dated 24- 12-1991, as 'Rule of the Court' that in 1991, appellant' sold his share to his partner in the said Company, due to which differences arose between appellant and respondents. Learned counsel stated that such situation attract to section 19(2) read with sections 32(2) and 45 of the Partnership Act and on applying these sections, it can be held that appellant had no legal competence to enter into Arbitration Award, therefore, as now an adverse Award has been given against him, thus, he has challenged the same.
21. ' Mr. Khushnood Ahmad, learned counsel contended that appellant at his will entered into Arbitration Award and since the decision has been given against him, therefore, he cannot question the validity of same on the ground that after dissolution of partnership firm, he was not legally competent to enter into arbitration with the respondent No, 1 . According to him, actually appellant had committed fraud, because by involving the respondent No,1, in the second arbitration proceedings he had supported to Changez Ahmad Kurd and Kamran Ahmad Kurd, who were bound to pay rupees twenty-eight lacs vide First Award, dated 14th July, 1991, therefore, in this manner, he cannot take the benefit of his own fraud and under the circumstances, is estopped to challenge the Arbitration proceedings as well as the Award, dated 24-12-1991. In this behalf, he placed reliance on PLD 1977 SC 644, PLD 1981 SC 282 and 1984 CLC 1729.
22. It may be seen that section 19(2) of the Partnership Act, cast a duty upon the partner of a firm to submit to a dispute relating to the business of the firm to arbitration and in absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to do so. Firstly it is to be seen that after the dissolution of the firm, appellant had no implied or express authority to submit to the Arbitrator to settle the dispute, relating to a partnership firm, shares of which have already been sold by him, not of his own but the shares of his other partners as well. In support of relevant Issues 2 and 3, no documents were brought on record by the respondents to argue, that he was authorized to enter into arbitration with respondents in respect of old disputes of the Corporation. As far as subsection (2) of section 32 of the Partnership Act is concerned, it speaks that 'a retiring partner may be discharged from any liability to any third party for acts of the firm done before his retirement by an agreement made by him with such third party and the partner of the reconstituted firm and such agreement may be implied by a course of dealing between such third party and reconstituted firm after he had knowledge of the retirement'. It is not the case of respondents that they were not aware about the fact that appellant alongwith other partners had already retired and they themselves had recognized his retirement by entering into Arbitration with new owners of the firm i,e,, Mir Changez Ahmad Kurd and Mir Kamran Ahmad Kurd on 29th June, 1991, whereby the respondents and new partners appointed two arbitrators each, to settle their dispute in respect of machinery, other expenditures and the labour, as it can be seen from the perusal of Arbitration Agreement. Thus, having acquired the knowledge about the dissolution of firm and consenting to settle the dispute with the new partners of the firm, the respondents by their conduct had established that as far as the appellant is concerned, he was not the person, who can resolve the dispute with them. As regards section 45(1) of the Partnership Act, it speaks that 'notwithstanding the dissolution of a firm, the partners continue to be liable as such to third parties for any act done by any of them which would have been an act of the firm if done before the dissolution, until public notice is given of the dissolution. The proviso attached thereto, is not relevant for our purpose. A plain reading of the words employed in this provision, indicates that if the public notice is not given in respect of dissolution, the retiring partners remain liable to discharge the liability. But in the instant case, as it has been pointed out hereinabove, the public notice to all concerned was very much there, as the respondents opted with their free-will and consent to enter into Arbitration with the new partners/owners of the firm. At this stage, it is also noteworthy that during cross-examination on the statement of respondent No,1, the appellant had suggested to him, that the Arbitration Agreement, dated 12-11-1991, is the result of his/their highhandedness. To prove this aspect of the case, reference can be made to F.I.R., which has been produced by R.W.-Atta Muhammad, Head Constable of Gawalmandi Police Station, contents of which have not been challenged. The F.I.R., contains the allegations that respondent has been kidnapped and suspicion has been shown for committing of the offence, on appellant and his brother. It is stated that this device was adopted by respondents to pressurize the appellant to extract more money from him. Mr.Ehsanul Haq, learned counsel stated that in pursuance of this F.I.R., the police authorities had been summoning the appellant and his brother to police station and for a considerable period, they remained under pressure, but surprisingly after 3/4 months from the date of registration of F.I.R., all of a sudden, the respondent himself appeared and stated that he was kidnapped by some unknown persons. According to the learned counsel, this document is also important from another angle i,e,, respondent No,2 Chaudhry Muhammad Iqbal admitted while recording F.I.R. That dispute with regard to payment of amount was settled, as they had already received rupees twenty-eight lacs. If the contents of F.I.R. Are considered with the background of the case, as discussed hereinabove, one can conveniently conclude that the respondents had been pressurizing the applicant by adopting different devices, so that he may concede to their illegal demand. In such view of the matter, the Judgments cited by learned counsel for respondent No,1, on the point that appellant after having entered into Arbitration Agreement is estopped from challenging the same are not applicable, because the facts noted therein are distinguishable from the peculiar circumstances of the instant case. As such, we are inclined to reverse the findings recorded by Trial Court on Issues Nos.2 and 3. Accordingly the same are decided in negative, for the reasons, stated above.
23. ' Mr. Basharatullah, learned counsel next contended that as the appellant was no more the partner of National Mining Corporation, therefore, if at all there was a dispute that was between the respondents and the Mining Corporation and not individually with the appellant. We enquired from Mr. Khushnood Ahmad, Advocate that whether he can show us any document to establish that after the earlier arbitration, between the new partners and the respondents, Award in respect whereof was given on 14-7-1991, the appellant was still liable to satisfy the claim of respondents?
24. Learned counsel stated that as throughout the period during which respondents had been working as Raising Contractors in the National Mining Corporation, it was the appellant who was dealing with them, therefore, he in the capacity of Managing Director was bound to enter into arbitration in his legal capacity with them. We are afraid to contribute to the contention put forth by learned counsel to be correct for the reasons that no documentary or oral evidence has been brought on record to show that appellant was responsible in his personal capacity to discharge the liability on behalf of other partners of the Mining Corporation. In such view of the matter, we are inclined to hold that after selling the shares in the partnership firm; by the appellant to new partners namely Changez Ahmad Kurd and Kamran Ahmad Kurd, the respondents had dispute with the Mining Corporation and not with the appellant in his personal capacity, particularly in view of sections 19(2) and 32(2) of the Partnership Act, after retiring from the firm, they were not liable to settle the dispute with appellant. Learned Trial Court while disposing of this issue had wrongly placed reliance on Exh.A/1 i,e,, Arbitration Agreement, dated 12-11-1991, because this document is under objection and admittedly it was executed between the parties after the dissolution of first partnership between the parties, as such, the findings of trial Court on Issue No,4, are reversed holding that the respondents had no dispute in personal capacity with the appellant and if at all there was a dispute, that was between them and the National Mining Corporation through its partners, who have stepped into the shoes of appellant and other partners, who have already been retired.
25. ' As far as Issue No,6, is concerned, it relates to the fact as to whether any arbitration proceedings and award between the applicants and respondent---National Mining Corporation conducted and decided by four Arbitrators namely Haji Bahadar Khan, Muhammad Murad, Haji Abdul Raziq and Haji Khuda Bakhsh on 14th July, 1991, is concerned, has also been wrongly decided in negative by the trial Court, because the two arbitrators namely Abdul Raziq and Khuda Bakhsh appeared on behalf of appellant and they proved the contents of arbitration agreement, dated 29th June, 1996 and the Arbitration Award, dated 14-7-1991 (Exh.R/1). Even during hearing Mr. Khushnood Ahmad, Advocate admitted that earlier there had been arbitration proceedings between the parties, but according to him that was for specific purpose. As far as such aspect of the case is concerned, it would be dealt with later on. It is necessary here to make mention of the fact that in the Arbitration Award, dated 24-12-1991, which is under challenge, figure of rupees twenty-eight lacs find mention, being the cost of the machinery etc., which was already awarded to respondents vide earlier Arbitration Award, dated 14th July, 1991. In this behalf, one of the respondent namely Chaudhry Muhammad Iqbal had also admitted this fact in F.I.R., Exh.R/2, but the trial Court without referring to these pieces of evidence had wrongly decided the issue in negative. Thus, for the reasons mentioned hereinabove findings on Issue No,6 are reversed and this issue is decided in affirmative.
26. ' Mr. Basharatullah, learned counsel next contended that Issues Nos.7 and 8 have also been illegally decided by the Trial Court, without making reference to the evidence available on record, that no payment was received by respondents in pursuance of earlier Arbitration Award, dated 14th July, 1991. In this behalf, he made reference to the evidence of witnesses produced by appellant.
27. ' Mr. Khushnood Ahmad, learned counsel, contended that in fact the amount of rupees twenty- eight lacs has not been paid to respondents either by appellant or new partners/owners of the firm.
28. ' Because the burden of proving both these issues was on the appellant, therefore, it would be appropriate to make reference of the evidence, led by him. First of all statement of Mir Changez Ahmad Kurd may be referred. He gave the details of the partnership business which he has purchased from appellant and other partners. Then he deposed that he insisted upon the respondents to carry out the work, but they declined to do so and thereafter, Arbitrators were appointed between him and the respondents. The Arbitrators gave an Award in favour of respondents, holding them entitled to receive rupees twenty-eight lacs. According to him this amount was not received by them, as according to their stand, they would take this amount from appellant, because they also owe an amount of rupees twenty-five lacs to him. Therefore, after deducting that amount, balance was given to them, by the appellant. During cross-examination, the adjustment of rupees twenty-eight lacs as described by the witness in his examination-in- chief, was not challenged effectively. R.W.2 Khadim Hussain, used to work as Manager from 1985 to 1986. He deposed that on 10th July, 1997, Rana Irshad Ahmad, left the charge of mine at his own will and handed over the same to Changez Ahmad Kurd. Thereafter, he created a dispute with regard to payment of amount, which has been spent on the mine, as such two arbitrators from each side were appointed. They gave award declaring respondents entitled for the amount of rupees twenty- eight lacs. According to him, they did not receive this amount from Changez Ahmad Kurd, as they owe an amount of Rs,23/24 lacs to appellant. According to him from 1st August, 1991, he started working with Mir Changez Ahmad Kurd. During this period he had been working with Rana Irshad. In the meanwhile some amount was paid by appellant to Rana Irshad Ahmad, through him. He stated that correct figure is not remembered to him, but it was 1 and 1/2 or 2 lacs, which the appellant paid to respondent No, 1 In cross-examination concerning payment of rupees twenty-eight lacs he stated that this amount ought to have been paid by Changez Kurd to respondents, Besides this, no other question was put to him, with regard to the payment of amount. R.W.3 Haji Abdul Raziq, who was one of the Arbitrators appointed by respondents, stated that Arbitrators concluded that a sum of rupees twenty-eight lacs is to be paid to respondents by Changez Ahmad Kurd. According to him this was also settled that Ejaz Ali Siddiqui has to pay this amount to the respondents after deducting the amount which they owe to him. In this behalf in cross-examination, no specific objection was raised. Same is the statement of R.W. Khuda Bakhsh, who was the second arbitrator on behalf of respondents. He also supported to Haji Abdul Raziq. Similar type of evidence was given by R.W. Muhammad Murad. Appellant Ejaz Ali Siddiqui and witness Shaukat Ali Siddiqui in their own statements have also maintained that this amount was paid on behalf of Changez Ahmad Kurd to respondents, after deducting the amount, which respondents owe to him. At this stage, reference to the F.I.R. (Exh.R/2) produced by R.W. Ali Muhammad can also be made, wherein respondent No,2, admitted that amount of rupees twenty-eight lacs has already been received by him. In this very context affidavit of respondent No,2, filed before the Trial Court affirming that their claim has been settled and subsequent request made by him through an application that his name may be deleted from the proceedings, coupled with the fact that even during hearing of this appeal, Syed Ayaz Zahoor, learned counsel stated in writing on his behalf that his claim has already been satisfied, is sufficient proof of the fact that said amount has been paid to them. We may mention here that affirmative findings of the Trial Court on these issues are also not sustainable, because she has not discussed the evidence, however, only for the purpose of disposal of instant proceedings, it can conveniently be held that if at all it presumed that the amount of rupees twenty-eight lacs was not paieby Changez Ahmad Kurd to respondents, then for that matter, they should have filed suit against him and how they can hold the appellant responsible for the same.
29. Even this amount cannot be added in the last Arbitration Award, dated 24-12-1991, therefore, the findings of the Trial Court are reversed and for the above discussion, the issues are decided accordingly.
30. ' As far as Issue No,9 is concerned, that requires no discussion in view of the findings given at Issue No,4.
31. ' Mr. Basharatullah, learned counsel, contended that Issue No,10 i,e,, whether the Arbitration Agreement and the Award filed by the applicants in Court is enforceable? Has also been disposed of wrongly by the trial Court. According to him, once the matter was settled between the new owners and the respondents vide Arbitration Award, dated 14-7-1991, the arbitration agreement and the Award, dated 12-11-1991 and 24-12-1991, respectively were not enforceable in view of the provisions of section 11 and Order II, Rule 2, C.P.C., because when the earlier arbitration reference, dated 29-6-1991 was executed the respondents if, had any other sort of claim, they should have incorporated the same therein. According to him, on this point he has two-fold stand. Firstly the earlier Arbitration Agreement and award has covered the total dispute as it reflects from the contents of reference, Marks-1 and 2 as well as Exh.R/1, and secondly if respondents can legally prove that arbitration proceedings had not covered the dispute, but for want of such conditions to be in existence, they were estopped under the law to initiate second proceedings of arbitration by way of executing Arbitration Agreement, dated 12-11-1991, in pursuance whereof sole arbitrator Mir Shah Nawaz Kurd gave the arbitration award, dated 24-12-1991. In this behalf learned counsel made reference to AIR 1978 Calcutta 228.
32. ' Mr. Khushnood Ahmad, learned counsel stated that admittedly there were arbitration proceedings between the new owners/partners of the firm and the respondents, but that was for limited purpose, as such, with regard to recovery of charges of the development of the mine, the respondents entered into second arbitration agreement with the appellant, who being the Managing Director of the Corporation was solely responsible, to settle the dispute with them.
33. ' In view of the admission made by the respondent's counsel in respect of the earlier arbitration it would be necessary to observe, that in both the References, executed by Mir Changez Ahmad Kurd and Mir Kamran Ahmad Kurd, whereby they appointed to Haji Abdul Raziq and Khuda Bakhsh, as their arbitrators and the second reference, wherein respondents appointed to Haji Khan Bahadur and Muhammad Murad as their Arbitrators, suggest to hold that earlier arbitration was in respect of the price of machinery, other expenditures and labour as well as mining machinery, underground and surface and the three arbitrators namely Muhammad Murad, Abdul Raziq and Haji Khuda Bakhsh, categorically deposed by appearing as witness on behalf of appellant, that in previous arbitration proceedings, total dispute has been settled. At this juncture reference to the arbitration agreement, dated 12-11-1991, (Exh.A/1) can be made. In this agreement as well, there was no specific reference of the nature of dispute except mentioning that there is a dispute between the parties in respect of National Mining Corporation, Narwar, therefore, they appointed to Mir Shah Nawaz Kurd, as their sole Arbitrator. Thus, from the contents of this document, the contention of counsel for respondent No,1, gets no support that the second arbitration proceedings, were drawn in respect of the dispute of development made on the mine. It is also important to note that in the Arbitration Award, dated 24-12-1991, figure of rupees twenty-eight lacs has also been shown, which is due against appellant, although in the previous Award, dated 14th July, 1991, this amount was found due against Mir Changez Ahmad and Mir Kamran Ahmad Kurd, therefore, we are inclined to hold that the earlier arbitration proceedings have covered the whole dispute, as such, the second arbitration agreement, dated 12-11-1991, was not enforceable, in view of the Judgment relied by learned counsel (AIR 1978 Calcutta 228), wherein it was held that 'claim in respect of which reference sought, forming principle of previous claim of which award was given, reference is barred by principle of constructive res judicata'. It was also held that though Order II, Rule 2 does not in terms apply to proceedings under the Arbitration Act, there is no reason why the principles thereof, should not be applied to arbitration proceedings in appropriate cases. Thus, it is held that arbitration agreement, dated 12-11-1991, was not enforceable. This issue has been dealt with Issue No,11, by the Trial Court, which relates to the fact; whether any notice of the Award was given by the Arbitrator to the respondent, if not, to what effect? In this behalf it is to be mentioned that as per the statement of Sardar Saadat Ali, Arbitrator informed him that he is not in a position to give the Arbitration Award, therefore, he advised him on 23rd December, 1991, not to give the decision but on the next day, allegedly Award was announced by the sole Arbitrator i,e,, 24th December, 1991.
34. Admittedly at the time of announcement, no notice was given to appellant and he fixed the time of eight months for its enforcement. Therefore, in such view of the matter, affirmative findings recorded by Trial Court on both these issues are not sustainable, as such, it is held that the Arbitration Award was not enforceable nor after its completion, any notice was given to appellant by the Arbitrator.
35. ' Mr. Basharatullah, learned counsel then argued that Issues Nos.12 and 13 have been disposed of in a slipshod manner by the Trial Court. As far as Issue No,12, is concerned, it is in respect of non- joinder of parties. Suffice it to observe that respondents had themselves admitted the status of Mir Changez Ahmad Kurd and Mir Kamran Ahmad Kurd, as new owners/partners of National Mining Corporation, as they entered into arbitration agreement with them. Therefore, if they had any dispute in respect of the Mine, as per the contents of the Arbitration Agreement (Exh.A/1), dated 12th November, 1991, it was incumbent upon the respondents to have joined the new owners as party.
36. Similarly if they were of the opinion that the retiring partners were necessary party, they should have joined all of them in the arbitration proceedings, as well as before the Court, because if at all it is presumed that one of the retiring partner i,e,, Ejaz Ali Siddiqui has validly entered into arbitration proceedings with the respondents, as far as the remaining partners, who have already retired, would not be bound with his acts and deeds, Same would be the position of new owners/partners.
37. As such, it is held that the application is bad for non joinder of parties. In forming this opinion we are supported by the judgment, delivered in the case of Messrs Ahmad Bakhsh, Abdul Rashid v.
38. Muhammad Aslam & Brothers and another (PLD 1954 Lah. 620).
39. ' As far as Issues Nos.13 and 14 are concerned, have been framed to resolve; whether the Arbitrator has misconducted himself and whether Award is legal and valid, when the same is not supported by any reasons or evidence?
40. ' Mr. Basharatullah, learned counsel, contended that as far as the expression 'misconduct' is concerned, it has not been defined in the Arbitration Act, itself, but according to him, the Hon'ble Supreme Court in the case of Brooke Bond (Pakistan) Ltd. v. Conciliator appointed by Government of Sindh and 6 others (PLD 1977 SC 237) has defined the expression 'misconduct'. He also made reference to Messrs Shafi Corporation Ltd. v. Government of Pakistan through Director-General of Defence Purchase, Ministry of Defence, Karachi (PLD 1994 Kar. 127). On the strength of these two authorities, he argued that section 26-A of the Arbitration Act, cast a duty upon the Arbitrator to state in the Award, the reasons for the Award in sufficient detail to enable the Court to consider any question of law, arising out of the Award. Whereas its subsection (2) says that where the Award does not state the reasons in sufficient detail, the Court shall remit the Award to the Arbitrator or Umpire and fix the time within which the Arbitrator or Umpire shall submit the Award together with the reasons in sufficient detail. Its subsection (3) further lays down that an Award remitted under subsection (2) shall become void on the failure of Arbitrator or Umpire to submit it in accordance with the directions of the Court. According to him, without prejudice to his different pleas, raised hereinabove, the sole Arbitrator violated the mandatory provision of law. Inasmuch as no evidence was recorded nor any opportunity was given to appellant, to defend himself and arbitrarily the arbitration award was pronounced.
41. ' On the other hand, Mr. Khushnood Ahmad, learned counsel stated that the Arbitrator act as an Administrative Tribunal and is not required to give detailed reasons of his decision, as are normally expected from the judicial officer and if from reading the contents of the Award, one can spell out that the Arbitrator had applied his mind, keeping in view the facts and circumstances of the case, it would be sufficient to hold the award to be valid. He relied on PLD 1971 Lahore 30, PLD 1982 Quetta 52, 1982 CLC 1984 and 1984 CLC 952.
42. ' Admittedly the Arbitrator had not recorded evidence of the parties at the time of deliberations, nor he assigned reasons in giving the award in favour of respondents. It is not understandable that on basis of what material, it has been concluded that the respondents are entitled for rupees twenty- eight lacs plus Rs,21,60,000 which are due against appellant. Mr. Khushnood Ahmad, learned counsel could not point out from the statements of respondents as well as the witnesses appeared on their behalf that of ever any evidence was recorded or heard in presence of appellant. It appears that merely on basis of guesswork, the Arbitration Award was compiled. At this juncture, it is also noteworthy that it is the allegation of appellant against the Arbitrator, that he had adjourned the hearing on 23rd December, 1991 and thereafter, matter remained pending before him and actually after about eight months the Award was compiled and delivered, in order to make it enforceable from 24th December, 1991, a period of eight months for its implementation was fixed and on the actual date, which should be somewhere in the month of July, 1992, the authority letter was executed by him without dates in favour of respondents i,e, Exh.A/5. Thus, according to learned counsel the award has been given in clear violation of section 26-A of the Arbitration Act. He further stated that in such-like situation it would be deemed that the Arbitrator on bypassing the mandatory provisions has misconducted himself. We have considered this aspect of the case and also examined the Authorities quoted by learned counsel. First of all, in this context, reference can be made to the judgment of Hon'ble Supreme Court, delivered in the case of Brooke Bond. The Hon'ble Supreme Court, while taking into consideration the implication of section 30 of the Arbitration Act, defined the expression 'Misconduct' and 'misconducted' the proceedings. Relevant para. Therefrom is reproduced hereinbelow:--- "The term 'misconduct' used in connection with arbitration does not necessarily imply anything in the nature of fraud or moral turpitude. In the judicial sense the misconduct of an Arbitrator means his failure to perform his essential duty, resulting in substantial miscarriage of justice between the parties. According to Atkin, J., in Williams v. Willis, p.45, the words ' misconducted the proceedings' mean such a mishandling of arbitration as is likely to cause some substantial miscarriage of justice. In the American Jurisprudence, Vol.3 on pages 964-5 it is observed that awards which are valid on their faces may be set aside in equity for misconduct on the part of the arbitrators, and the extrinsic evidence is admissible to prove such misconduct. Conduct inconsistent with the duties imposed upon those selected as the arbitrators, either at the hearing, or in reaching their conclusions will frequently constitute misconduct as will impeach an award."
43. ' Similarly the learned Division Bench in Karachi High Court in the case of Shafi Corporation defined the expression ' misconduct' as follows:--- "...The expression ' misconduct' appearing in clause (a) of section 30 of the Act is not defined in the Act. It is used in technical sense and with reference to arbitration proceedings it points out towards irregularity. Normally, it does not refer to moral turpitude of anything to it. It is now settled proposition of law that an award of the arbitrator is binding upon the parties and same cannot be set aside, unless it suffers from any error of law apparent on the face of record, or is in violation of principles of natural justice, which is not the case here. As regards counterclaim, it is noted that counterclaim is on better footing than additional work."
44. ' As far as the judgment cited by respondent's counsel, reported in PLD 1971 Lah. 30, is concerned it is not applicable because it deals with a criminal matter under the West Pakistan (Industrial Disputes) Ordinance IV of 1968. However, in the case of Province of Balochistan and another v. Malik Haji Gul Hassan (PLD 1982 Quetta 52) it was held that ' misconduct of proceedings, misadoption of such procedure in arbitration proceedings is either not warranted by facts of case or oppose to principles of justice and implies breach of duty and non-observance of common rules of justice'. Similar judgment in the case of Associated Constructors Ltd. v. Karachi Municipal Corporation (1982 CLC 1984), would also, therefore, not be applicable to the proposition in hand. Whereas in case of Qamardin Ahmad & Co. v. Pakistan and others (1984 CLC 952), it was held that 'evidence whether material or not improperly taken or admitted renders award to be bad'.
45. ' Thus, for the foregoing reasons and keeping in view the principles of law, discussed in the above judgments, particularly by Hon'ble Supreme Court in the case of Pakistan Brooke Bond Ltd. we are inclined to hold that in this case, sole Arbitrator misconducted himself and had rendered the Award invalid by not assigning the reasons, after recording evidence. As such, the findings of Trial Court on these issues to the effect that same have not been pressed by learned counsel, are not sustainable, because these were the two material issues and it is not known as to how the Presiding Officer has concluded that the issues were not pressed. Consequently both the issues are decided in affirmative.
46. ' Mr. Basharatullah, learned counsel stated that because the Arbitrator, has misconducted himself and the Award is not supported by any reasons or evidence, therefore, decree cannot be passed upon it. Since we have already resolved Issues Nos.13 and 14 in affirmative, therefore, Issue No,15, which pertains to the conversion of Award into decree, is decided against the respondents, in view of the findings of Issues Nos.13 and 14, that the Award being invalid/nullity in the eye of law, cannot be converted into decree.
47. ' As far as disposal of Issue No,16 is concerned, it does not call for separate determination, because we have already held that the Award is nullity in the eye of law.
48. ' No other point was argued by the parties' counsel.
49. ' Thus, for the above discussion Civil Miscellaneous Appeal No,25 of 1997 and Civil Revision No,251 of 1997 are accepted. Consequently Award, dated 24th December, 1997 and the Arbitration Agreement, dated 12th November, 1991 are declared to be illegal and of no legal consequences.
50. Resultantly, impugned judgment/decree, dated 30th July, 1997 passed by Additional District Judge-I, Quetta is set aside with cost against respondent No,1 throughout.
51. ' Office is directed to prepare Decree Sheet.