1. ' IFTIKHAR MUHAMMAD CHAUDHARY, J.---By this common judgment, we have proposed to dispose of Civil Miscellaneous Appeal No,23 of 1996 and R.F.A. No,31 of 1996, because in both the appeals, order, dated 5th September, 1996, passed by Civil Judge, Pishin, has been challenged, whereby application under section 14 of the Arbitration Act, 1940, filed by one Khan Behram Khan son of Haji Mehmood Khan, for making the award, dated 20th November, 1995, as 'Rule of the Court' and to pass decree in pursuance thereof, has been dismissed.
2. ' Briefly the relevant facts giving rise to present proceedings are that vide Arbitration agreement, dated 9-8-1995 allegedly executed between appellants and respondent Haji Abdul Karim, in both the matters, whereby statedly they appointed Khan Bahram Khan as their Sole Arbitrator, to determine price/value of the immovable property measuring 71000 sq. Ft. Situated in Mahal and Mouza Kohna Bazar, Pishin. It was further stated that Arbitrator gave his Award on 20th November, 1995. Thereafter, on 3rd December, 1995, Arbitrator filed an application before the Civil Judge under section 14 of the Arbitration Act, 1940, whereby both appellants and respondent Haji Abdul Karim were arrayed as party. In the application, request was made that the Award may be made 'Rule of the Court' and decree in accordance with the terms of Award may be passed. Notice of the application was given to parties. The appellants submitted joint reply on 14th December, 1995, stating that they have no objection to the Award, therefore, it may be made as 'Rule of the Court'.
3. Whereas respondent Haji Abdul Karim, filed objections, contending therein, that as no dispute between the parties exist therefore, there was no occasion to appoint any Arbitrator. Non-joinder of necessary party was also made as one of the preliminary objection, seeking rejection of application, because besides him, there are other persons, who are recorded owners of the property. Validity of Award was also questioned for its being unregistered and in this behalf, it was explained that initially Arbitrator attempted to get the Award registered with the Sub-Registrar, Pishin in absence of respondent, but he could not succeed, therefore, he presented the same before the Assistant Commissioner, Karezat (Sub-Registrar), for registration in a concealing manner. On coming to know of this fact, respondent submitted an application before the Registrar, Pishin, who cancelled the registration made by him. On this sole ground the application is not maintainable. Similarly question of limitation in filing the application was also pleaded as a bar for dismissal of application. On merits, the application was also vehemently contested. Out of the pleadings of parties, learned trial Court framed following issues for determination on 28th February, 1996:---
(1) Whether the application is not maintainable in view of P.Os. 'B' 'C' and 'D' of W.S.?
(2) Whether the respondent appointed the applicant as Sole Arbitrator?
(3) Whether applicant is entitled to the relief claimed for?
(4) Relief?
4. ' In support of the application, Arbitrator led evidence of A.Ws. Ali Muhammad son of Ghaffar Khan, Abdul Samad son of Haji Behram Khan, Muhammad Musa Khan son of Haji Fazal Muhammad, Sabir Jamil son of Dr. Jamil Ahmad (Notary Public), Haji Zahir son of Muhammad Yakub and Saleh Muhammad son of Syed Muhammad (Petition Writer). It may be noted that last date i,e,, 18th August, 1996, was fixed for evidence, when two witnesses of Arbitrator were present but they were not cross-examined as Senior Counsel, Mr. Kamran Murtaza, was reportedly busy in some other Court, therefore, right to cross-examine the witnesses was closed and for statement of Arbitrator case was fixed for 20th August, 1996. In the meanwhile, counsel for respondent No,3, submitted an application for re-calling the witnesses. Notice of the same was given to counsel of applicant- Arbitrator, who filed rejoinder and the date was fixed for further proceedings to be 25th August, 1996. On this date, Arbitrator, appeared in person and requested for adjournment as he wanted to produce evidence and at his request case was adjourned for 5th September, 1996. It would be relevant at this stage to note that this date was fixed for orders on the application filed by counsel for respondent No,3, but it appears that order was passed and it is not understandable that how the case was postponed at the request of appellant for production of evidence. Surprisingly, on 5th September, 1996, neither applicant (Arbitrator) nor his counsel or any of his witness, was present, therefore, Civil Judge, Pishin, proceeded under Order XVII, rule 3, C.P.C., and dismissed the application vide impugned order. As such, instant appeals have been filed.
5. ' Against the impugned order, Arbitrator also filed Regular First Appeal No,29 of 1996, which was not pressed, because according to counsel, appearing on his behalf, Arbitrator does not fail within the definition of an aggrieved person, to prefer appeal against rejection of application under section 14 of the Arbitration Act. Thereafter, instant appeals were preferred by the persons in whose favour Award was given by Arbitrator. They impleaded Arbitrator Khan Behram Khan, as one of the respondent, but subsequently, they made request to delete his name, as no relief has been claimed against him. Their request was allowed in terms of the prayer so made by their counsel.
6. ' Messrs M.S. Rukhshani and Khushnood Ahmad, learned Advocates, respectively appeared on behalf of appellants. They argued that learned Civil Judge, had no jurisdiction to dismiss the application filed by Arbitrator, in exercise of powers under Order, XVII, rule 3, C.P.C., as according to them, Arbitrator was not bound to produce evidence on 25th August, 1996, because this date was fixed for arguments, on the application submitted by Mr. Kamran Murtaza, Advocate for respondent No,3, for re-calling the witnesses to cross-examine them, because in his absence the right of cross- examination on their statement was closed on 18th August, 1996. They further stated that even if it is presumed for sake of arguments that on 25th August, 1996, Arbitrator got adjourned the case for producing the witnesses on next date i,e,, 5th September, 1996, still the Court in absence of the Arbitrator or his counsel or the witnesses, if not produced, instead of proceeding with the matter under Order XVII, rule 3, C.P.C., may have called upon the Arbitrator-applicant to produce evidence, if any, or respondent No,3, should have been asked to produce evidence, because Issue No,1, was framed on basis of preliminary objection raised by him in the objections, or alternatively for want of prosecution, the application under section 14 of the Arbitration Act, may have been dismissed, but by deciding the application on merits, serious prejudice has been caused to them, as Arbitration Award has been filed before the Court and the relevant parties were before it, therefore, by setting aside the Arbitration Award irr a haphazard manner, serious prejudice has been caused to them.
7. ' On the other hand, Mr. Kamran Murtaza, learned counsel appearing for respondent Abdul Karim, stressed for maintaining the impugned order, on the ground that despite availing sufficient opportunity, Arbitrator failed to produce evidence in support of Arbitration Award. He further stated that no prejudice has been caused to appellants, because admittedly the Award in unregistered and also appears to be doubtful, even through the evidence, which was produced by Arbitrator himself, therefore, his request was that appeals may be dismissed. He also urged that appellants have not filed application under section 14 of the Arbitration Act, for making the so-called Award of Arbitrator, as 'Rule of the Court', therefore, they have no locus standi to agitate against the impugned order, by way of filing appeals, because the application of the Arbitrator, has been dismissed, who filed appeal but did not press the same. In addition to it, Arbitrator himself had no lawful authority to file Award before the Court, under section 14(2) of the Arbitration Act.
8. ' We also heard the parties' counsel at length and also carefully gone through impugned order.
9. ' In view of the objection put forth by learned counsel for respondent No,2, following two important points, emerges for consideration:---
(i) Whether Arbitrator at his own can invoke the jurisdiction of Court under section 14(2) of the Arbitration Act, for making the Award as 'Rule of the Court'? And
(ii) Whether after dismissal of application under section 14(2) of the Arbitration Act, filed by Arbitrator, appellants have locus standi to approach this Court for setting aside the impugned order, particularly in view of the fact that Arbitrator himself filed an appeal, which has been dismissed as not pressed, coupled with the fact that in appeal, the Arbitrator was impleaded as party, but his name was got deleted by appellants themselves, because no relief was claimed against him?
10. First of all, we would attend to the question, enlisted at Serial No,1, in view of the provisions of subsection (2) of section 14 of the Arbitration Act, 1940. A perusal whereof, suggest that any of the party to the Arbitration Agreement can request the Court for making directions to Arbitrator to file Award in the Court. If no such request is made by the parties to Arbitration Agreement, then any other person claiming under such party, like legal representatives, heirs, etc., can request to the Court that directions be made to the Arbitrator to file Arbitration Award. This part of subsection (2) speaks in respect of a request, which is to be made either by any of the party to the Arbitration Agreement or any person acting on their behalf. Apparently, there is no provision whereby the Arbitrator is restrained from filing Arbitration Award at his own. In this behalf Mr. Khushnood Ahmad learned counsel for appellant Dr. Fazlur Rehman, cited following two judgments from Indian Jurisdiction to substantiate that Arbitrator is also competent to file an Award:- ' AIR 1945 Nagpur 117 and AIR 1951 Nagpur 32, ' In both these Judgments it was held that Arbitrator suo motu is empowered to file an Award, for making it as 'Rule of the Court', It is known principle that Statute should be interpreted in such a manner, so it may not lead to absurdity or unnecessary ambiguity. Since under subsection (2) of section 14 of the Act, there is no express bar refraining the Arbitrator to file Award before the competent Forum for making it as 'Rule of the Court', therefore, we are inclined to hold that even in absence of a request either by any party to Arbitration Agreement or any person acting on behalf of such party, the Arbitrator at his own can also file the Arbitration Award. However, subject to condition, that it would be his sole responsibility that Award is valid for all intents and purposes and has been signed by him or them, strictly in accordance with law and it has been reduced in writing on requisite C Stamps Act. When the arbitration proceedings have been. Initiated outside the Court, at the request of parties to the Arbitration Agreement, in addition to this, it was announced and after its compilation, it has been duly registered with the Sub-Registrar under section 17 of the Registration Act. It may be noted that merely due to non-registration of Arbitration Award having value more than Rs,100 it would not be rendered inadmissible in view of the provisions of section 49 of the Registration Act, and s..Xh document essentially can be used for collateral purposes.
11. ' Now the next question is with regard to locus standi of applicant-Arbitrator, in view of the point framed at Serial No,ii, hereinabove.
12. ' There is no doubt that both appellants are beneficiary of the Award. Learned trial Court had dismissed the application of Arbitrator without allowing opportunity to produce evidence to establish that Arbitration Award is valid for all practicable purposes, as in pursuance thereof, they have been held entitled to claim a handsome amount from respondent towards the land, which has been sold by them. Therefore, they are aggrieved persons for the purpose of section 39 of the Arbitration Act, as well as section 96, C.P.C. In this behalf, reference can be made to PLD 1984 SC (AJ&K) 13 and PLD 1985 Quetta 56. In addition to it, it has also been settled by the time that appellate jurisdiction can be invoked by the party/person, who even was not before the Court when order, adverse to his interest was passed, as it has been held in PLD 1969 SC 65. Therefore, appellant being the persons, against whom impugned order is operating adversely, have competently filed appeals.
13. ' On having concluded that Arbitrator is competent to file Award without request of any party, we would proceed to examine; whether impugned order has been passed justly.
14. ' Before dilating upon this aspect of the case, it is to be borne in mind that Issues Nos.1 and 2, framed by trial Court, were based on assertions made by respondent No,3, in his written statement.
15. Therefore, prima facie burden to substantiate the allegations was upon him in view of Order XIV, Rule 1, C.P.C., as respondent No,3, has put forth certain objections to constitute his defence. But surprisingly, learned trial Court without determining the burden of onus on any one of the parties, proceeded to record evidence of Arbitrator. Be that as it may, even if for sake of arguments, it is presumed that onus of burden to prove all the issues, was rightly fixed upon applicant, even then there was no occasion for the trial Court to have dismissed the application in an arbitrary manner.
16. In this behalf, reference to order, dated 20th August, 1995, is relevant, when the case was fixed for orders on the application moved by Mr. Kamran Murtaza, learned counsel for respondent, for re- calling the witnesses to cross-examine them, whose statements were recorded on 18th August, 1996, as right of cross-examination was not given to him, as another Advocate appearing on his behalf, refused to cross-examine the witnesses. Thus, it is not understandable that on next date i,e,, 25th August, 1996, when matter was fixed for orders on application, how the learned Judge, without announcing order, has directed the Arbitrator for producing the evidence and at his request postponed the case for 6th September, 1996. On this date, incidentally, neither Arbitrator, nor his witnesses or counsel was present, but the learned trial Court proceeded to dispose of the application forthwith, rejecting thereby Arbitration Award, without giving opportunity of producing evidence to appellants, because they were its beneficiary. In such like matter, even in the interest of justice, it was E not warranted for the Trial Court to have dismissed the application for non- appearance, because as far as the real parties i,e,, appellants and respondent are concerned, they were before it. Presuming that applicant-Arbitrator was not interested to peruse the application, then in such situation, the Trial Court in large interest of justice, instead of passing the impugned order or dismissing the application in default, may have directed transposition of parties, by changing the position of appellants from respondents to applicants, in terms of Order 1, Rule 10, C.P.C., subject to all just exceptions.
17. ' Next question for consideration would be; whether impugned order can be set aside, despite the fact that Arbitrator, on whose application this order was passed, is not before the Court, as it has been explained hereinabove.
18. ' To overcome this difficulty, provisions of Order LI, rule 33 read with section 151, C.P.C., can be applied in the interest of justice.
19. Thus, for the foregoing reasons, appeals are allowed, impugned order, dated 5th September, 1996, is set aside and case is remanded to Civil Judge, Pishin, to proceed with the matter, from the stage where it was left on 20th August, 1996, after issuing notice to Arbitrator, Khan Behram Khan as well as appellants and respondent.
20. ' Parties are left to bear their own costs.