' Z. A. CHANNA , J.-This appeal by the Provincial Government is directed' againstthe judgment and decree passed by a learned Additional District and Sessions Judge, Hyderabad, on 24-4-1965, in First Class Civil Suit No, 34, of 1962, decreeing the suit of the respondents for Rs, 4,38,762.81 with proportional costs. The suit was originally filed against the Government of West Pakistan and the appeal was also filed by it, but on account of the dissolution of the Province of West Pakistan and by reason of the provisions of P.
0. No, Il of 1971, the Government of Sind has been substituted m the proceedings before us in place of the Government of West Pakistan.
2. The litigation between the parties has arisen out of two agreements, Nos. B-2/3 and B-2/4, which were executed by them on 31-10.1955, where-under the work of laying two pipe lines in the city of Hyderabad, one of 54" and the other of 48% was entrusted to the plaintiffs/respondents, who are a partnership firm carrying on the business of contractors and manufacture of R. C. C. Pipes. This work involved, inter alia, excavation of trenches, providing and fixing of timbering and supplying and laying of R. C. C. Pipes. The main agreements, which were in the usual printed Form 8-2 for item rate tender and contract for works, were accompanied by typed schedules of rates and cyclostyled specifications, which formed an integral part of the agreements. The schedule of rates contained separate items for providing and fixing close and open timbering as also for excavation.
3. It is alleged that on a dispute arising between the parties whether timbering, which did not involve the leaving of planks or wood in the trenches, was to be paid for separately from the work of excavation, and if so, whether the rate of timbering was to be calculated on the basis of cubic feet or square foot of timber used in the operation, the matter was referred to the Superintending Engineer, who decided, vide his letter dated 27-4-1957, that the contractor can use the same timber as many times as required, that the rate of Rs, 12-8-0 per cubic foot for timbering had been agreed upon by both the sides and that from the calculations (submitted by the Executive Engineer) it has been found that if calculated on cubic feet basis the rate is the same as calculated on the basis of square feet.
4. On the basis of the above decision of the Superintending Engineer, the respondents were paid sums of money amounting to Rs, 3,27,568-5-0, in their running bills for the months of May 1957 to August 1957, on account of the item of timbering. Thereafter, however, fresh disputes arose between the parties in respect of this item and there was some correspondence between the officers of the appellants and the respondents in regard to it. The matter was referred to the Additional Chief Engineer, and on the basis of his decision, the two agreements, 8-2/3 and B-2/4, were amended and additional items were added thereto. One of the additional items related to close timbering, for which it was provided that payment would be made at the rate of Rs, 68 per square foot. A note was recorded under this item to the effect that the timber used was to remain the property of the contractor. No provision was made for open timbering, and Mr. Fateh Ali Vellani, who appeared for the respondents, stated at the bar that thereafter no claim for open timbering was made by the respondents. In pursuance of this arrangement, the Additional Chief Engineer sanctioned a sum of Rs, 1,70,000 for providing close timbering by the respondents, vide his letter dated 28-8-1958.
5. The audit, however, raised objections regarding payments for either close or open timbering, which objections were based on clause 7 of the specifications that timbering was to be done at the cost of the contractor, and accordingly not only the amount of Rs, 1,70,000 for close timbering sanctioned by the Additional Chief Engineer was not paid to'the respondents, but even the amount of Rs, 3,27,568-5-0, which bad already been paid to the respondents, was recovered from their future bills.
6. The respondents, thereupon, brought the present wait in 1962, claiming a sum of Rs, 5,47,688-5- 0---Rs, 3,27,568-5-0, being the amount first paid to and then recovered from them, Rs, 1,62,500, for 13,000 cubic feet of measured timbering done and an additional amount of Rs, 57,620 for the quantity of timbering work done but not entered in the measurement books.
7. The plea taken by the appellants in their written statement was that according to clause 7 of the agreement, the contractor had to leave the timbering wood in the trenches on both sides of the pipe line and since this was not done he was not entitled to any payment for this item of work. ' This was also the plea taken by the appellants In their memo. Of appeal filed in this Court.
8 The learned trial Court upheld the claim of the respondents for the amount of Rs, 3,27,560-5.0, which had been originally paid to them but was finally deducted from their future bills, as also a further amount of Rs, 1,11,194-5.0 on account of further work of close timbering undertaken by the respondents, but disallowed the respondents' claim in respect of the timbering work alleged to have been done by them but not entered in the measurement books.
9. Mr. Addul Satter Sheikh, the learned counsel for the appellants, did not canvass before the merits of the case but confined his arguments to the following legal contentions I-
(1) that clause 30 of the main agreement was an arbitration clause requiring submission of all disputes between the parties to the arbitration of the Superintending Engineer
(2) that the decision of the Superintending Engineer, vide his letter dated 27-4-1957, was an Award ; and
(3) by reason of the aforesaid Award, the respondents were precluded, in view of the provisions contained in sections 31 and 32 of the Arbitration Act, 1942, from instituting the suit, which was for the enforcement of the Award and involved its validity.
10. The learned counsel conceded that the stand now taken by him before us was materially different and could even be considered to be inconsistent with the stand taken by the appellants in the trial Court and particularly in the memo. Of appeal filed before this Court, where it is specifically contended that the decision of the Superintending Engineer was not in the nature of an Award or was binding, but since his contentions involved the construction of a document, these were questions of law and therefore he was entitled to raise the same before us. In support of this Argument he relied upon three decisions from the Indian jurisdiction, reported in AIR 1931 Oudh 133, AIR 1955 SC 62 and AIR 1959 Raj.
162. In the Oudh case the question which arose for consideration of the Court was whether a Deed created Waqf Al-al-Aulad or in the alternative create a gift. It was held, following an earlier Oudh case, that 'the question of the proper construction to be placed on a deed was a question of law and there could be no estoppel by pleading of law inasmuch as the other side must be -presumed to know what the law is "
11. In the case before the Supreme Court of India, the appellant therein had applied for registration under the Bombay Shops and Establishment .Act, 1948, and in the statement made under section 7 of the said Act he had described the nature of his business as a factory. The learned Judges of the High Court considered that this imported admission that his factory was a 'shop' because of the use of the word 'shop' in 'workshop'. The Supreme Court of India held : "This might have raised an inference of fact against the appellant had nothing else been known but when the facts are fully set out as above and admitted, the appellant's opinion about the legal effect of this fact is of no consequence in construing this section. Arises."
12. In the Rajhistan case, it was held that the ground that the suit in question is not maintainable inasmuch as it virtually amounts to a suit to enforce an Award is, "in the first place, a matter of pure law, and secondly, that it goes to the very root of the case".
13. Although no authority of a Pakistani Court was cited before us in support of the above contentions, we have, on the basis of the aforesaid authorities from the Indian jurisdiction, permitted the learned counsel for the appellants to canvass before us the position that the suit was not maintainable and was barred by the provisions of sections 31 and 32 of the Arbitration Act, 1940.
14. Coming back to the first plea raised by the learned counsel for the appellants, he urged before us that clause 30 in the printed form of the two agreements clearly amounted to an agreement in writing to refer disputes to Arbitration. The said clause 30 reads as follows :- "Clause 30.- Except where otherwise specified in the contract and subject to the powers delegated to him by Government under the Code Rules then in force, the decision of the Superintending Engineer of the Circle for the time being shall be final. Conclusive, and binding on all parties to the contract upon all questions relating to the meaning of the specifications, designs, drawings, and instructions hereinbefore mentioned and as to the quality of workmanship or materials as used on the work, or as to any other question, claim right, matter or thing whatsoever, in any way arising out of, or relating to the contract, designs, drawings, specifications, estimates, instructions, orders or these conditions, or otherwise concerning the works, or the execution on failure to execute the same, whether arising, during the progress of the work, or after the completion or abandonment thereof."
' In support of his argument the learned counsel referred us to a decision of the Lahore High Court reported in AIR 1947 Lab.
216. This case involved the interpretation of a P. W. D. Agreement which also contained a clause.
Almost identical to clause 30 in the two agreements before us, providing that the decision of the Superintending Engineer would be final. It was held in that case that "though the words 'arbitration', 'arbitrator' or 'arbitration agreement' do not appear in the clause, but that is, in my view, immaterial as long as the parties can be found to have agreed to allow the matter to be decided by a person of their own selection whose decision was to be final, conclusive and binding on them".
15. The final contention of Mr. Abdul Sattar Shaikh was that if it was held that the decision of the Superintending Engineer in the instant case was an Award, as was submitted by him, then the suit was really for the enforcement of the Award and involved its validity, and accordingly was barred by section 32 of the Arbitration Act. The argument, in other words was that the respondents by their suit were seeking decision upon the effect of an Award and in fact the main basis of the claim is the decision of the Superintending Engineer, which was an Award. In support of this contention the learned counsel referred us to a number of decisions from the Indian Jurisdiction as well as Pakistani authorities, reported in A 1 R 1946 Mad. 346, AIR 1952 Nag. 65, AIR 1958 AU. 506, AIR. 1964 Orissa 21, PLD 1955 Sind 282, PLD 1967 Lah. 365 and PLD 1970 Kar.
379.
16. In the Madras case, the question which arose for consideration by a Division Bench of that Court was whether in view of the provisions of the Arbitration Act, 1940, a party to an Arbitration Award, which had not been filed in Court, was entitled to enforce it by way of a suit? It was observed in that judgment as follows :- "The Act of 1940 was intended to consolidate and amend the law of India relating to arbitration matters. The scheme of the Act is to prevent the parties to an arbitration agitating question relating to arbitration in any manner other than act provided by the Act.
' The suit which the appellant filed clearly raises the question with regard to the existence and validity of the Award, and such a suit is expressly barred by section 32."
17. In the Nagpur case, the question for consideration was whether an Award, an application for fling whereof in Court had been rejected on the ground that the application was made beyond the prescribed period of 90 days, could act as a bar to bring a suit on the original cause of action ? The view expressed by the learned Judges was as follows : - ""In our judgment a plaintiff who has been a party to an arbitration agreement till an Award is won by him Is barred by sections 31, 32 and 33 of the Arbitration Act, 1940, from bringing a suit on the same cause of action, and be cannot ignore the Award or impeach its validity."
18. In the Allahabad case, it was held that tae question whether the arbitration agreement was operative or effective or not, whether it should be enforced or not, or whether it was frustrated or not, or whether it failed alongwith other clauses of the contract or not, are all questions regarding the effect of an arbitration agreement and sections 32 and 33 of the Arbitration Act bar suits for decisions of such questions and such matters must be determined only by means of an application under section 33 of the said Act.
20. In the Orissa case, it was held that the "effect of the Award is wide enough to cover a suit to enforce an award, and in that view of the matter a suit to enforce a claim under an Award is hit by section 32 of the Arbitration Act and is not maintainable".
21. In the Sind case, a learned Judge of the Sind Chief Court, relying on the decisions reported in AIR i946 Sind 117 and 1 L R 18 Cal. 414, observed that Once an Award has been made, the disputes between the parties relating to the subject-matter of the reference merged in the Award and no suit can lie which can have effect avoiding the Award except the provisions of section 31 of the Arbitration Act, 1940."
21. In the Lahore case, a Division Bench of the defunct West Pakistan High Court took the view that the phrase 'decision upon the existence or effect of an Award' is wide enough to cover suits which are aimed at implementing the terms of an Award and that "in cases where parties want to have Award enforced, the proper procedure is to first get that Award made a rule of the Court and then enforce and execute the decree which might be passed in the Award and they cannot resort to a procedure of filing a separate suit by by-passing the procedure laid down in the Arbitration ACt which deals with the Awards". It was further held in that case that the said. Act is comprehensive enough and no matter which is laid down in the said Act to be dealt with in a particular way can be dealt with in any other way under the ordinary law of the land.
22. In the Karachi case, it was held, firstly, that law does not require drawing up of an agreement in a formal manner, and secondly, that an Arbitrator is after all a Judge appointed by the parties and, therefore, the element of agreement in confirmation of jurisdiction on him should not be lost sight of and such acquiescence or agreement may result in estopping the party which had acquiesced from raising objections to the Award.
23. Mr. Abdul Sattar Shaikh contended, relying on the aforesaid authority that the responsibility of the respondent lay in filing the decision of the Superintending Engineer and getting it made a rule of Court and not by means of a separate suit. He, however, conceded that this argument was applicable only in respect of the amount of Rs, 3,27,568.5-0, which was originally paid to the respondent on the basis of the decision of the Superintending Engineer but subsequently recovered from him, and could not be made applicable to the further amount of Rs, 1,11,194, which the respondent is claiming as a result of work of close timbering or shuttering undertaken by him in consequence of the amendment in the two agreements B-2/3 and B-2/4.
24. Mr. Abdul Sattar Shaikh, however, very fairly referred U3 to a ruling of our own Supreme Court reported in PLD 1971 SC 516. In that case the dispute was regarding the transfer of certain land effected on the basis of a mediation by a retired Deputy Commissioner, who in consequence of the mediation, had written a rukka to the Girdawar requesting him to enter a mutation of sale in favor of the defendants for the price of Rs, 36,000. Their Lordships of the Supreme Court held as follows "Section 32 of the above-mentioned Act does not, in my view, debar a defendant from setting up a plea that an unfiled award which had been fully performed by him is a complete answer to the plaintiff's claim which was the subject-matter of the award. A similar view, we find, was taken by the Supreme Court of India in the case of Kashinathea Yamosa Kabadi, etc. v. Naraingea Bhaskarea Kabadl, etc. AIR 1961 SC 1077, where, in more or less similar circumstances, it was held that such a defence is not blinded on the plea that there is an award which bars the suit, but that the parties had by mutual agreement settled the dispute and that the agreement and the subsequent actions of the parties are binding. The defendant in such a case does not seek to obtain any decision upon the existence, effect or validity of the award but merely seeks to assert that the claim sought to be set up by the plaintiff has already been satisfied by the mutual consent of the parties. This is exactly what the defendants-respondents also sought to do in the present cases. "They merely asserted that the plaintiff-appellant's claim had already been fully satisfied by his acceptance of the unfiled award ; assuming that it was an award ; the subsequent implementation thereof by mutual consent and the entering of the mutation as per his own request in his letter (Exh. D. 8). Thereafter his title to the lands in dispute was extinguished and no further question of declaration of his title to the same lands could arise."
25. In regard to the question whether the mediation and decision by the faired Deputy Commissioner was an award, their Lordships held that it was not an award, as it did not emanate from a judicial determination, and laid down the following essential characteristic of an award : "The most important characteristic of an award, of course, is that it must emanate from a judicial determination. If a dispute is referred to a person and if that person decides that dispute by holding an enquiry and coming to a decision then undoubtedly what that person decides would constitute an award. On the other hand, if a matter is referred to a person and he is not called upon either to hold an enquiry or to give a decision but by the exercise of sagacity, knowlege or experience to bring about merely an understanding between the parties and restoring peace between them than he would only be discharging functions other than those of an arbitrator. But in order to determine this question one must not look merely at the form adopted or the expressions employed but rather at the substance of what the parties to the dispute really intended the person approached in that behalf to do and how that person acted in that particular matter."
26. Mr. Fateh Ali Vellani, the learned counsel for the respondent, on the other hand, strenuously argued-
(1) that clause 30 of the agreement did not constitute an arbitration agreement
(2) that the decision of the Superintending, Engineer in regard to timbering was not an Award
(3) that even if it be considered somehow to be an Award, it had acted upon and consequently did not bar the filing of a suit, and in the alternative, since the Award had not been filed in Court, a suit on the original cause of action was not barred ; and
(4) that on merits the case of the respondents was not only extremely strong but stood uncontroverted.
27. As the first two contentions raised by Mr. Fateh Ali Vellani are closely inter-linked, we propose to deal with them together.
28. In the Arbitration Act, 1940, the expression 'arbitration agreement' has been defined to mean- "A written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not."
29. The above definition is identical with the definition of the expression given in the English Law.
According to Russel on Arbitration (Eighteenth Edition), the essential requirements of an arbitration agreement are-
(1) that the parties should intend to make a submission to arbitration ;
(2) as with every other contract, there must be mutuality, and
(3) it must be possible to give a sensible meaning to the alleged agreement.
' It was held in Lovelock Ltd. V. .Exportles (1) that where a contract contained a clause referring "any dispute and/or claim" to arbitration in Engtand and this clause was followed by a clause referring "any other dispute" to arbitration in Russia, that the whole arbitration clause was void for ambiguity.
30. According to the learned author Russel, the expression "arbitration agreement"
"Covers both an arbitration clause by which the parties agree that if dispute arises they shall be referred to arbitration, and also an actual
(1) (1968) 1 Lloyd's Rep. 163 (C A) ' submission of a particular dispute or disputes to the authority of a particular arbitrator. These are two very different things, and it is often convenient to distinguish between them, calling the first an 'agreement to refer' and the second a submission'."
31. In the instant case, a close perusal of clause 30 would seem to indicate that it lacks the essential characteristics of an arbitration agreement. In the first place, reference to the Superintending Engineer and the finality of his decision was not only subject to the other provisions in the agreement but also made further subject to the powers delegated to him by Government under the Code Rules. It is not known whether any such powers were delegated to the Superintending Engineer in the instant case. Furthermore, the decision had to be of the "Superintending Engineer of the circle for the time being,"
' This term came up for consideration in the case reported in AIR 1947 Lah. 215, on which the learned counsel for the appellant had placed reliance. In that case it was observed "The words 'for the time being' in the above clause (allegedly arbitration clause) have first to be construed. Do they go with the word 'circle' only or do they go with the words 'Superintending Engineer?' The words are to say the least ambiguous. It is quite possible to conceive that the circle, being merely administrative, may change from time to time and what work is being done in one circle may by administrative arrangement be assigned to another. But, even if the expression 'Superintending Engineers of the circle' is to be taken collectively, it is not, in my opinion, possible to say with certainty as to which of the Superintending Engineers was intended to arbitrate. Was it the officer who held the office of the Superintending Engineer at the time when the suit was instituted or did it refer to the person who had held the office at the time when the 'question, claim, right, matter' etc arose for decision or in other words when the cause of action bad accrued to the plaintiff?"
32. In view of the above ambiguity it was held that the words in the agreement were too vague and indefinite to have the matter decided by the person who held the office of the Superintending Engineer at the time of the accrual of the cause of action or even when the suit was instituted and hence it was impossible to give effect to this agreement which was declared to be "unenforceable for want of certainty."
33. One of the essential features of a submission to arbitration is that the question referred must be determined in a quasi-judicial manner. It was contended by Mr. Fateh Ali Vellani, the learned counsel for the respondents, that the Superintending Engineer under clause 30 of the two agreements merely acted as an expert or as a value but not as an arbitrator, though his decision was binding and conclusive. In support of his contention he referred us to passages in Hudson's Buildings and other Contracts (Ninth Edition), p. 310 and Law and Practice of Building Contracts by Keating (Third Edition), p.
86. According to Keating, an architect in granting ordinary certificates in building contracts is not an arbitrator for the purposes of the Arbitration Act, but his decision as stated in his certificate may be as binding and conclusive between the parties as if it were an award. He learned author goes on to say that it has been said that the object of making the architect's decision in a final certificate binding and conclusive is to have the benefit of his skill and knowledge as an independent man to decide what is finally due between the parties without recourse to the enormous expense and trouble often involved in judicial proceedings.
34. Hudson, in the nineth edition of his treatise, Building and Engineering Contracts, bas explained the distinction between arbitration agreements from agreements for valuation or certification. At page 649 of his book, the learned author states as follows :- "It is important to distinguish between arbitrations, on the one hand, and valuations, appraisements and certificates, on the other, since in the latter cases the provisions of the Arbitration Acts are not applicable.
' If a person is appointed, owing to his skill and knowledge of the particular subject, to decide any questions, whether of fact or of value, by the use of his skill and knowledge and without taking any evidence or hearing the parties, he is not, prima facie, an arbitrator.
' It has been held that if a man is, on account of his skill in such matters, appointed to make a valuation, in such manner that in making it he may, in accordance with the appointment, decide solely by the use of his eyes, his knowledge and his skill, he is not acting judicially ; he is using the skill of a value, not of a Judge. In the same way, if two persons are appointed for a similar purpose, they are not arbitrators but only values. They have to determine the matter by using solely their own eyes and knowledge and skill.
' If, on the other hand, a person is appointed with the intention that he should hear the parties and their evidence and decide in a judicial manner, then he is an arbitrator."
35, We have also been referred to some decisions of the Sind Chief ,Court as to the essential ingredients of a submission to arbitration. In the first case so referred, reported in AIR 1934 Sind 200, which is based on a number of English decisions, the Court while holding that a clause in an agreement between the parties providing that the President of the District Local Board, Karachi, will be the Judge for the interpretation of the meaning and contention of the contract and for any complaint which the contractor may have and that his decision will be considered final, do not contemplate a submission of disputes to the arbitration of the President, observed as follows t "One of the essential ingredients of a submission to arbitration is that the parties should intend that the dispute intended to be referred should be determined in a quasi-judicial manner see Asbury's Laws of England, Vol. 1, para. 1071. If it is not to be so determined, the agreement does not amount to a submission to arbitration and the person who decides the dispute is not an arbitrator. Therein lies the distinction between an agreement for submission to an arbitrator and an agreement to accept the decision of a value or appraiser or of a racing steward or of the counsel of the parties. In all such cases there is no animus Arbitrandi."
3b. A similar view was held in the case reported in AIR 1936 Sind 201, where it was held that it was well settled that a mere agreement between two persons to be concluded by the decision of a third does not by itself constitute such third person an arbitrator, and to give him that character it should be intended that such person should determine the disputes in a quasi-judicial manner. It was further held in that case that where an architect or other technical expert in the service of one of the parties to a contract is clothed with authority to settle disputes between the parties, which he is required to decide merely by the exercise of his own skill and judgment, such architect r expert is not an arbitrator. The agreement in that case clothed the Superintending Engineer with authority to settle disputes between the parties which were required to be decided merely by the exercise of his own skill and judgment.
39. This aspect of the matter stands concluded by the decision, reported in PLD 1971 SC 516, to which we have already referred in an earlier part of our judgment, wherein it has been held that "the most important characteristic of an award, of course, is that it must emanate from judicial decision".
40. A bare reading of the decision of the Superintending Engineer, communicated vide his letter dated 27-4-1957, does not show, nor even has it been alleged on behalf of the appellants, that the Superintending Engineer had held any enquiry or acted in a quasi-judicial manner. In fact, the evidence on record shows that there was no submission of a case to him, but he acted solely on the basis of the letter of the Executive Engineer, aged 27-3-1957, to which reference has been made in the letter of the superintending Engineer. The letter in question of the Executive Engineer, waver, refers to additional items and then goes on to suggest that the unit of measurement for timbering should be square feet and not cubic feet as Calculations for this work in cubic feet would create complication of payments. The Executive Engineer, therefore, proposed that revised rate for item of timbering may be sanctioned subject to the approval of the contractor A bare perusal of this letter clearly indicates that there was no dispute, at least at that stage, in regard to payment for the item of timbering and what was only proposed was that for the sake of facility in calculations, the rate should D be in square feet and not in cubic feet, and that too should be done with the sanction of the contractor. It has not been alleged on behalf of the appellant that the Contractor had consented to the altered rate or he was even consulted. In fact, the Superintending Engineer did not agree to the proposal of the Executive Engineer and while so doing he observed that the Contractor could use the same timber as many times as required. There was, bus, no submission to the Superintending Engineer, as firstly, there was dispute between the parties regarding the rate at which work for timbering had to be paid for, aid secondly, because the Superintending engineer did not act in a quasi-judicial manner, which he would have certainly one if the dispute had been referred to him for arbitration, but merely acted a superior officer and in the exercise of his own judgment.
41. That brings us to a consideration of the third contention raised by r. Vellani. The first part of his contention was that the award had been ted upon and consequently did not bar the filing of a suit.
Of course, if he award had been acted upon by the parties by their mutual consent, the ictum laid down by their Lordship; of the Supreme Court in the case reported PLD 1971 SC 516. Would be applicable in the instant case and accord ugly the suit would be maintainable. However, we have taken the view hat the decision of the Superintending Engineer was not an award. Further-ore, it is rather doubtful if it can be categorically stated that the decision ad been fully acted upon by the parties by mutual consent. No doubt, the respondents were paid for the work of timbering at the rates specified in chedule of the agreements in the bills for the months of May to August 1957, but these were only running bills and in the future running bills, even before the final bill, deductions were made on account of the payments made for the timbering done. According to clause 8 of the agreements entered into by the parties all intermediate payments were to be regarded "as payments by way of an advance against the final payments only and not as payments for work actually done and completed, and shall not preclude the Engineer-in-charge from requiring bad, unsound, imperfect or unskilful work to be removed and taken away, re-constructed or re-erected, nor shall any such payment be considered as an admission of the performance of the contract or any part thereof in any respect or the accruing of any claim".
' It may finally be pointed out that if the parties had mutually agreed to and acted upon the award, then there was no reason for subsequent amendment of the two contracts, including a seep irate item for providing and fixing very close timbering to pipe trenches and for the removal of the same after pipe line was laid and jointed,
40. The second part of the third contention of Mr. Villain, that since the award had not been filed in Court, a suit on the original cause of action was not barred, however, has much greater substance.
In support of this contention, Mr. Villain referred us to a number of decisions from the Indian jurisdiction, reported in AIR 1960 Andh. Pra. 59, AIR 1964 Mad. 1 ; AIR 1965 All. 217 and AIR 1965 Pat.
239.
41. In the Andhra Pradesh case, it was held that though under the law prior to the passing of the Arbitration Act, 1940, a valid award operated to extinguish all claims which were the subject-matter of the reference to arbitration and the award alone furnished the basis by which the rights of the parties could be determined and any action on the original cause of action was barred, the Arbitration Act of 1940 had effected a change, in that it has prescribed the procedure for getting an award enforceable and the effecting of this change is that the passing of an award by itself does not extinguish the rights of the parties until such award is filed and made rule of the Court. The view taken was that no party could be prejudiced by the mere existence of an award made under the Arbitration Act, 1940, as it does not become operative and enforceable until it has been filed in Court and the Court adjudicates about its validity.
42. The Madras High Court, while reversing its previous decision, reported in AIR 1948 Mad. 436, came to the conclusion that where an award is made on a reference out of Court, it is not filed in Court in accordance with the provisions of the Arbitration Act and it cannot ordinarily be pleaded as a defence to a suit instituted by the parties thereto on the , original basis of the cause of action.
The Full Bench of the Madras High Court, however, went on to hold that if such an award is performed by one of the parties, it affords a good defence on the original cause of action by the other parties. The decisions of the two Full Benches referred to above were followed by the Allababad and Patna High Courts.
43. We are aware that a learned Single Judge of the Sind Chief Court in the case reported in PLD 1955 Sind 282, has held the view that once a dispute between the parties relating to any matter has been referred to arbitration, the only remedy open to the parties is under the Arbitration Act, 1940, and not through any suit, but the learned Judge seems to have followed the earlier decision of the Sind Chief Court, reported in AIR 19' Sind 117 (which was in respect of a matter under the Arbitration Act, 1899), without noticing the difference In the provisions in the said Act those contained in the Arbitration Act, 1940. On the basis of the various ludic authorities referred to above, we would agree with Mr. Villain that an unfiled award, unless it has been acted upon, would not act as a bar to the filing of a civil suit.
44. The only point remaining for consideration is in respect of the submissions made by Mr. Vellani in regard to the merits of the case. We are of the opinion, in view of the fact that the learned counsel for the appellants did not argue this aspect of the case, that no great discussion on this point is called for. We would accordingly confine our attention to a few salient facts. These may be summarized as follows :
(1) In the respective Schedule B to the two agreements, the items for excavation and providing and fixing close/open timbering are separately shown. If the intention was that timbering was included in excavations, then there was no point in providing a separate item therefor and specifying its rate.
(2) Schedule B uses two different terms, namely 'supplying' and 'providing'. The use of the different expressions is not without significance. It appears that wherever the intention was that some material was to be permanently supplied and either to be the property of the Government or to be incorporated in the works the term 'supplying' was used but where any material was to be used temporarily or for a limited period, the term 'providing' was used. In fact, this was the stand taken by the respondents in their letter, dated 30th July 1957, addressed to the Superintending Engineer, which is Exh.
56.
(3) The stand of the Government in their original statement and in the memo. Of appeal, that timbering means leaving timbers buried in the soil, or at any rate payment was only to be made when timbers were left in the soil, is not consonant with the dictionary meaning of 'timbering'. In Chamber's Technical Dictionary, Third Edition, the term 'timbering' had been defined as : "temporary timbers arranged for support of earth in excavations to prevent collapse of the sides".
(4) The other stand of the Government that since clause 7 of the specifications provided that timbering was to be done at the cost of the contractor and it was to be paid only for timbers left in the ground, also does not appear to us to have any merit. In the first place, this clause relates to deep excavations, while the item in Schedule B relating timbering, is in respect of timbering in trenches up to 10 feet. Even if it be considered that there is any inconsistency or conflict between clause 7 of the specifications and Schedule B, greater weight will have to be given to the Schedule, which contains specific item, in regard to close and open timbering. It is a well-established rule that general words cannot override specific provisions see 1957 All E L R 362 and 1893 All E L R 695.
(5) Though, in our opinion, the decision of the Superintending Engineer, vide his letter dated 27-4- 1957 is not an award, the Government cannot go behind this decision and say that either this amount is not due or a lesser sum is due.
(6) In any case, the respondents are entitled to the work of 13,000 cubic feet or measured close timbering done after the amendment in the t no agreements specifically laying down that the contractor would be paid at the rate of Rs, 63.80 per square foot for providing and fixing very close timbering, including removal of the timber after the pipe line is laid. In fact, for this work the Additional Chief Engineer, by his letter. Dated 28-8-1958 (Exh. 77), had sanctioned a sum of Rs, 1,70,000.
45. There was some correspondence between the parties whether the timber which had been used for the purposes of timbering was the property of the Government or of the Contractor, but we do not consider that it would be fruitful to examine this aspect of the case, since Schedule B did not provide that the timber would be the property of the Government, and according to us 'providing timbering' means only temporary providing of timber for the work of timbering. In any case, it appears from the record that no demand was ever made by the appellants from the respondents for the timber which had been used by the respondents in the timbering work.
46. It was presumably because of the above insurmountable difficulties that Mr. Abdul Sattar Shaikh did not deem it fit to argue the case on merits and hence this aspect of the case stands uncontroverted.
47. For the reasons discussed above, we are of the opinion that there is no merit in the appeal. We would, accordingly, dismiss the appeal with costs.
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