SAEED-UR-REHMAN FARRUKH, J. - This revision petition under Section 115 of Code of Civil Procedure is directed against judgment dated 29.8.1996 passed by Additional District Judge whereby the appeal of respondent No. 1 assailing, the order of Civil Judge dated 16.3.1995, making the award of arbitrator rule of the Court, was allowed and case was remitted to Commissioner Sargodha, as arbitrator, for fresh award.
2. Brief facts, forming the background of this revision petition are State land measuring 1598 kanals was allotted to respondent No. 1 in 1970 for a period of ten years under remount breading scheme.
Its size was later on reduced to 600 kanals on 8.6.1981.
Allegedly, the performance of respondent No. 1 was very poor as a grantee with the result that the land was resumed in 1983. The order of resumption was challenged by respondent No. 1 through writ petition (W.P. 1102/83). It was disposed of on 9.10.1983 with the observation that remedy of arbitration vide clause 55 of the lease deed should be restored to. To enable respondent No. 1 to move the arbitrator (Commissioner Sargodha Division) status quo was ordered to e maintained upto 5th September, 1983.
3. Respondent No. 1 did not approach the Commissioner/arbitrator for arbitration. He, instead, filed a civil suit which was dismissed. He then filed an appeal which to was dismissed. Lastly, respondent No. 1 filed Civil Revision (C.R. 1385'85) which was decided on 30.10.1985 and it was observed that respondent No. 1 should furnish security (for the mense profits) to the satisfaction of Trial Court and the matter be referred to Arbitrator. Admittedly, security was not furnished by respondent No. 1.
Respondent No. 1 moved the Trial Court under Section 20 of Arbitration Act, 1940 on 3.5.1984 for direction to file lease agreement in Court, so as to refer the dispute to the arbitrator. This application was contested and was dismissed on 5.2.1985. Appeal against this order failed on 6.7.1985. However, on a revision petition by respondent No. 1, in view of the statement of the parties, both order and judgment of Civil Judge and Additional District Judge, respectively, were set aside and the dispute was referred to Commissioner/arbitrator in terms of clause 55 of the lease deed dated 12.8.1971.
4. The arbitrator pronounced his award in favour of the petitioner on 29.12.1994. It was found that respondent No. 1 was not entitled to the renewal of the lease "due to poor purchasing results/performance and flagrant violation of the terms and conditions -." It was held that respondent No. 1 was not maintaining single animal since 1979 and as such the leased land was liable to be resumed forthwith and "compensation of the crops for the period he remained in unlawful possession of the land be recovered from him."
5. Respondent No. 1, feeling dis-satisfied with the award, filed objection petition before learned Civil Judge. It was dismissed after contest, on 16.3.1995 and the award was made rule of the Court.
Possession of the leased land was taken over on 21.3.1995.
Respondent No. 1 challenged the order of learned Civil Judge dated 16.3.1995 through an appeal before learned Additional District Judge, who vide judgment dated 29.8.1996 allowed it and after setting aside the award referred the matter to Commissioner for fresh award after allowing parties chance to lead evidence. Hence this revision petition.
6. It is the case of the petitioner that the learned Additional District Judge passed the impugned judgment on considerations which are wholly untenable in law and since sufficient opportunity of hearing has already been afforded to respondent No. 1 by the Commissioner, there was no need to direct that he would pronounce the award de novo, and that to after recording the evidence.
Learned counsel for respondent No. 1, while vehemently contesting this revision petition has argued that since rights of leading evidence was denied to him therefore the award of the Commissioner was illegal and as such rightly set aside. It is also urged that the respondent had made huge investments over the leased land and as such the question of award of compensation could be only determined if necessary evidence was permitted to be led to prove it.
In this regard he has placed reliance on Colonel (Retired) Muhammad Aslam Versus Haji Muhammad Shafi and another (PLD 1993 Lahore 11) and Walton Tobacco Company Versus Azad Government State of Jammu and Kashmir (1993 CLC 73).
7. I find merit in this revision petition.
The dispute between the parties was referred to arbitrator in terms of clause 55 of the lease deed which reads as under:-
55. Arbitration.-- In the event of a difference or dispute arising between the Government and the tenant in the property and rights hereby reserved to the Government or as to any of the conditions of the tenancy or as to any matter or thing in any way connected herewith including a difference or dispute as to the interpretation of any terms or conditions of this instrument, and as to whether the lease has been duly terminated and the rights and obligations following from such termination, the decision of which has not been hereinbefore provided for, such difference or dispute shall be referred tor arbitration to the Commissioner of the Division whose decision shall be final and conclusive between the Government and tenant and where such decision directs the payment of any sum of money or delivery of any property by one party to the other no money or property shall be recoverable in excess of the money or property so awarded, in respect of the matter decided by such directions."
The crucial question falling for determination by the arbitrator was as to whether, in the facts and circumstances of the case, the lease of respondent No. 1 ought to have been extended by the collector or not.
Clause No. 51 of lease deed about extension of lease reads as under:- Renewal of Tenancy. (1) If the tenant one year prior to the expiry the tenure of his lease gives to the Government through the Director, a notice in writing of his desire to renew the tenancy and if the tenant has carried out the conditions of this grant in all respects to the satisfaction of the Director and that the Government desires. The tenant to continue in the tenancy, the tenancy may be renewed, in exceptional cases, for any further period to be decided by the Government at its discretion.
(2) The Government reserves the absolute right regarding future renewal and may not renew the lease, the Government shall have the right to change the conditions of the grant including reduction in size of the stud and the type and number of animals to be maintained."
Perusal of this clause shows that absolute discretion was vested in the collector in the matter of extension of the lease. This disection, unless exercised in arbitrary or capricious manner, could not be interfered with by a Court of law, much less by the arbitrator.
The initial lease period came to an end in 1980. It was resumed in 1983. It was for the respondent to promptly invoke arbitration clause. He did not do so. He rather filed a writ petition, which as maintained earlier, was disposed of with the observation that resort be had to arbitration. The respondent No. 1, with the obvious intention of prolonging his possession over the disputed land, did not file a petition under Section 20 of Arbitration Act before Civil Court for making a reference to the arbitrator. He, instead, filed a civil suit whereafter further litigation, arising out of this civil suit ensued upto the level of High Court. It is during the pendency of civil revision before High Court that on 30.10.1985 it was observed (by High Court) that the respondent should furnish security for mense profits. This security was not furnished. While pursuing his remedy of revision before this Court respondent moved petition on 3.5.1984 under Section 20 of Arbitration Act before Civil Court. It is unfortunate that again few years were consumed before matter actually went before Arbitrator. He allowed few opportunities of hearing to the parties and then pronounced the impugned award.
A perusal of the award shows that respondent did not ask for a chance to lead evidence. No material/evidence was brought on the record of the Trial Court either to this effect. It was thus to late in the day for respondent to claim that he was prejudiced due to lack of opportunity to lead evidence before arbitrator. The authorities relied upon by respondents are clearly distinguishable on facts of the present case.
8. It is clear that learned Additional District Judge, without taking note of the relevant facts of the case, has illegally set aside the well-reasoned order of Civil Judge, making the award rule of the Court. The impugned judgment is thus not sustainable in law.
Respondent No. 1 has resorted to prolonged litigation before different Courts of law, solely with a view to keep his hold over the State land, given to him for the limited period of ten years, and succeeded in enjoying it gratis for about 15 years even after expiry of lease period. He, unjustifiably, wishes to re-enter the land in question by having another round of uncalled for proceedings of arbitration. It may be noticed that though the undertook to furnish security for mense profits yet he wilfully avoided to abide by his undertaking with the result that he made recovery of amount due from quite difficult, if not impossible for the State.
9. For what has been stated above, this revision petition is accepted, with costs throughout, and after setting aside the impugned judgment of Additional District Judge dated 29.8.1996 the order of learned Civil Judge dated 16.3.1995, making the award of the arbitrator rule of the Court, is restored.