Noor Nabuwwat, the petitioner, and Moulvi Muhammad Noor Ali Khan, the respondent, are sons of Muhammad Saeed, who died in the year 1992. During his lifetime, Muhammad Saeed transferred through gift mutations on three different occasions certain lands to the petitioner. Through gift Mutation No.9485 attested on 6-2-1977, 4 Kanals and 1 Marla was transferred, by Mutation No.9786, dated 16-9-1980, 4 Kanals, 11 Marlas was gifted while through Mutation No.9984 attested on 11-10- 1983, 15 Marlas were transferred to the petitioner. The mother of the petitioner and the respondent, Mst. Gul Rabia Jana, who expired soon after her husband's death also gifted to the respondent 5 Marlas and six Sarsais of land through Mutation No.92 attested on 21-12-1992. Dispute between the petitioner and the respondent arose regarding these transfers, soon after their parents died. The two brothers nominated Moulvi Abdur Rauf and Moulvi Abdul Samad to settle their dispute in accordance with Sharia. It appears from the record that the matter could not he resolved in accordance with the mandate and, therefore, on 24-5-1993 the parties by a written agreement re- appointed Moulvi Abdur Rauf and Moulvi Abdul Samad to decide their dispute, the parties undertaking that they would be bound by the decision and in case any party does not abide by the decision will not only forego the surety amount deposited but would also be liable to social boycott by the co-villagers. The two persons so nominated gave their decision on the same day, to the effect that half of the property gifted by the parents of the parties to the petitioner would remain with him, whereas the other half would go to the respondent, out of which the respondent would also be liable to give to their sister. Mst Ilam Bibi, her Shari share in the estate of their father. The petitioner was not burdened with satisfying the claim of Mst. Ilam Bibi from his half share, because he had looked after his parents and had borne some of their expenses. It was also decided that the three Kanals and fourteen Marlas of land in possession of the respondent would be divided between the parties in accordance with the law of inheritance. Entry in the Rornamcha to give effect to the decision of the Arbitrators was made vide Mutation No.58 dated 8-3-1994 Exh . P. W .1 /4). However, the mutation was not attested and cancelled at the behest of the petitioner on 29-7- 1993. Thereafter, the respondent filed an application in the Court of Senior Civil Judge, Bannu for making the decision, dated 24-5-1993 (hereinafter referred to as the Award) as rule of the Court. In his reply to the application, the petitioner denied that he had ever appointed Arbitrators for settling their disputes, claiming that the properties in dispute had been validly gifted to him by his parents.
2. From the controversies emanating from the pleadings of the parties, the trial Court framed the following five issues:--
(1) Whether the petitioner has got cause of action?
(2) Whether petition is within time?
(3) Whether petitioner is estopped to file the present suit?
(4) Whether arbitration decision is fake, if so, its effect?
(5) Relief.
The respondent plaintiff besides testifying himself examined sir witnesses, Including the two Arbitrate. 'The petitioner/defendant appeared as his own witness and in addition produced two witnesses. The trial Court held that the application by the plaintiff was filed within the limitation period. On issues Nos. l and the Court found that the agreement between the parties, dated 24-5- 1993, Exh. P W .2/l and hereinafter referred to as the Arbitration agreement) and the Award (Erh.P.W.2/2) were genuine, but the Award could not be made rule of the Court, because the agreement was not an arbitration agreement in the strict sense and that the Award was ambiguous. Further that the Arbitration ward was not acted upon by both the parties.
Consequently, the application of the respondent was dismissed on 30-11-1995.
3. Two appeals, one by the petitioner No.5/13, and the other by the respondent No.6/13 were preferred against the findings of the trial Court. The District Judge, Bannu dismissed appeal of the petitioner and allowed the appeal of the respondent, with the result that the application of the plaintiff/respondent was accepted and the Award was made rule of the Court. Against this judgment and decree of the District Judge dated 19-3-1996. The petitioner has preferred the present revision petition.
4. The first objection raised by the learned counsel for the petitioner. Mr. Dost Muhammad Khan, was that the application filed by the respondent/plaintiff for making the award rule of the Court was not within the time prescribed by Article 178 of the Limitation Act, which prescribed period of 90 days and that both the Courts have erred in applying the residuary Article 181 of the Act (ibid) to the facts of the case. In this context he pointed out that the Award was given on 24-5-1993 and that the cancellation of the mutation in pursuance to the Award was made on 29-7-1993, whereas the application before the trial Court was filed by the respondent on 20-1-1994. It was, thus, contended that even if 29-7-1993 be considered as refusal by the petitioner to abide by the Award and time be considered to run from that date, even then the application was filed five months and 28 days thereafter. To this objection, the learned counsel for the respondent, Syed Zafar Abbas Zaidi, contended that the relevant article of the Limitation Act would be Article 158, under which application for setting aside an Award or get an award remitted for reconsideration must be filed within thirty days of the service of the notice for filing the Award. This controversy has been resolved by the Lahore High Court in the case of Muhammad Shafi v. Muhammad Sabir PLD 1960 W.P. (Lah.) 591, in which it was held that the words "the date of service of the notice of the making of the Award" have a technical meaning and mean notice provided by section 14 of the Arbitration Act, i.e. a notice in writing to the parties of the making and signing of the Award. It was thus, ruled that the time limitation prescribed under Article 178 is restricted to those applications for filing award to the court where notice was given in pursuance to section 14 of the Arbitration Act notwithstanding that the ward was announced in the presence of the parties. The Court further held that to cases where the parties do not request the Arbitrators to file the Award in the Court but directly goes to the Court Article 181 of the Limitation Act would apple which provides that such an application can be made within three years from the date when the right accrues In the present case the respondent/ plaintiff (lid not apply to the Arbitrators but directly applied to the Court for A making the award rule of the Court. Thus, the provision of Article 181 and not 178 of the Limitation Act would be attracted to the facts of the present case therefore, the respondent applied to the trial Court within time. The findings of the two Courts on the question of limitation are, therefore, upheld.
5. The learned counsel for the petitioner next questioned the genuineness of the arbitration agreement as well as the Award. He maintained that the original award was given by the Arbitrators to one Abdur Rehman's (D.W.1), who claims to have thrown it away after it was spoiled by water while his car was being washed. Another witness, Shah Qiaz (D. W .2; who was signatory to Exh.P.W.2/l, the Arbitration agreement was produced to support the story put forward by Abdur Rehman's. When confronted, he expressed doubt about the correctness of his signatures appearing on Exh.P.W.2/1. The learned counsel for the petitioner maintained that the signatures appearing on Exh.P.W.2/1 and Exh.P.W.2/2 should have been sent to the Handwriting Expert for his opinion. In response to these contentions, the learned counsel for the respondent argued that since the two Arbitrators had testified to the genuineness of Exh. P. W.2/ 1 and Fxh. P. W.2/2 and that even the petitioner had not denied the execution of an agreement between him and the respondent to refer the dispute to Arbitrators the agreement and the Award stand proved. I would agree with the learned counsel for the respondent. The petitioner, who appeared as D.W.3 admitted that he had appointed Maulana Abdul Samad and Maulana Abdur Rauf to resolve their dispute but that he did not accept the decision because it was not in accord with Sharia, Though he denies the genuineness of Exh.P.W.2/1 and Exh.P.W.2/2 but when specifically asked in cross-examination he states that he does not know the contents of that decision. It seems quite strange that the petitioner does not know the contents of the decision yet he terms it as contran--to Sharia. Again, it has not been explained as to why the alleged Award was given to Abdur Rehman's, who was neither a party to the dispute, nor one of the Arbitrators. The story, about its damage and destruction is equally unbelievable. On the other hand, the two Arbitrators had testified the correctness of Exh.P.W.2/1 and Exh.P.W.2/2. Their statements were duly supported by Haji Nazar (P.W.6) and Haji Umardad (P.W.7), who were also signatories to Exh.P.W.2/1 and Exh.P.W.2/2. For these reasons and because of the concurrent findings of the two Courts below in favour of the genuineness of these two documents, I have no reason to believe that Exh.P.W.2/1 and Exh.P.W.2/2 are fake.
6. Having held Exh.P.W.2/1 and Exh.P.W.2/2 to be genuine, the next question that falls for determination is whether they fulfil the requirements of Arbitration agreement and "Award" prescribed under the Arbitration Act, 1940 The learned counsel for the petitioner had argued that Exh.P.W.2/1 could not he termed as an arbitration agreement within the meanings of section 2(a) of the Arbitration Act, as it was fake and so also the Award was void, because it determined the share of the sister of the petitioner and the respondent, though she was not a party to the arbitration agreement. Reliance was placed on the case of Deep Narain Singh and others v. Mt. Dhaneshwari and others AIR 1960 Pat 201. With reference to section 2(a) of the Act (ibid) and pressing into service of case of Brooke Bond (Pakistan) Ltd. v. Conciliator appointed by the Government of Sindh and 6 others PLD 1977 SC 237, the learned counsel submitted that the Arbitrators mis-conducted themselves within the meaning of section 30 of the Act, because no reasons have been given by them for their decision. In reply, it was contended on behalf of the respondent that there is no controversy between the parties regarding the property that was the subject of arbitration and that no elaborate reasons are required to be advanced by the Arbitrators in their Award. In this context, the case of Messrs Nawab Brothers Ltd. v. Project Director, Office of the Project Director, Special Projects, Planning and Development Department, Karachi and another 1981 CLC 638 was cited. As regard non-involvement of the sister of the parties to the arbitration proceedings, the learned counsel argued that the petitioner cannot plead her case and that in any case under the Arbitration award, it has become the responsibility of the respondent to satisfy any claim of his sister.
7. It was rightly pointed out by the learned counsel for the petitioner that before making an award rule of the Court and pronouncing judgment in the terms of the Award under section 17 of the Arbitration Act, it was the duty of the Court to see that there was no cause to remit the Award for reconsideration or to set it aside. This power can be exercised suo motu (see Deep Narain Singh and others (ibid) and Abdul Khaliq v. Province of East Pakistan and another PLD 1964 Dacca 166).
Like all agreements, an Arbitration agreement would also be void under section 29 of the Contract Act, if its terms are not certain. Exh. P. W.2/ 1 is the only document exhibited at the trial to prove the arbitration agreement but it does not at all refer to the nature of the dispute between the parties let alone the description of the property over which the dispute had arisen. The agreement is, therefore, clearly far from certain as regards the subject-matter of the dispute that the arbitrators were supposed to resolve. The Arbitrators in their Award (Exh.P.W.2/2) had decided that all the properties gifted to the petitioner by his father and mother were to be divided equally between him and the respondent, without describing the property so gifted. The arbitration Agreement was void, because it was ambiguous and the Award is to be set aside not only because it was made in consequence of a void agreement, but also on the ground that it failed to specify the properties regarding which the decision was made.
8. The Award can also not be allowed to stand, because the Arbitrators have not given any reason for their decision. The division of the property gifted to the petitioner could not have been made, unless the gift mutations were accepted by the Arbitrators. Yet no reasons at all have been advanced by the Arbitrators as to why they disbelieved or did not accept the gifts in favour of the petitioner. The judgment of the Karachi High Court in the case of Messrs Nawab Brothers, referred to above, is not relevant, because it was delivered on 2-10-1980 before the addition of section 26-A in the Arbitration Act, which provides that the Arbitrators must give reasons for the Award in sufficient details to enable the Court to consider any question of law arising out of the Award. The consequence of not giving reasons for the Award would be to remit the Award to the Arbitrators for re-consideration.
9. The Award is void for another reason too. It has decided upon the share of the sisters of the parties, Mst. Ilam Bibi, who admittedly was not a party to the arbitration Agreement. In the case of Deep Narain Singh (ibid), the Patna High Court had held that an arbitration agreement to which all the persons interested in the subject-matter of the dispute are not parties is not a valid and not binding even on the consenting parties. It was further, held that section 17 of the Arbitration Agreement confers suo motu powers on the Court to examine the validity of the award and the Court can set aside an invalid award without even waiting for the objection. That being the case, the argument of the learned counsel for the respondent that Mst. Ilam Bibi had not raised any objection to the arbitration agreement or to the award is without force. The Award was a nullity because it pertained to the ancestral property of Muhammad Saeed, one of whose legal heirs was totally disassociated with the proceedings.
10. Admittedly, the award. Was not registered. The Supreme Court of Pakistan to the recent case of Mst. Farida Malik and others v. Dr. Khalidal Malik 1998 SCM R 816, relying upon the case of Hail Nawab Din v. Sh. Ghulam Haider and another 1988 SCM R 1623, has held that award which G purports to transfer land worth more than Rs.100 cannot be made rule of the Court if not registered, in view of section 49 of the Registration Act. The same view was expressed in the case of Lachman Dass v.
Ram Lal and others by the Supreme Court of India reported in 1990 PSC 809.
11. From the above discussion it follows that the Award (EXh.P.W.2/2) cannot be made rule of the Court, because the arbitration agreement was void for ambiguity, the award did not furnish reasons for the decision made therein, an interested person, namely, Mst. Ilam Bibi, was not made party to the arbitration proceedings and, finally, the award was not registered under the Registration Act. The Civil Revision is, therefore, allowed, the impugned judgment and decree of the Appellate Court are set aside and the application filed by the respondent for making the award rule of the Court is dismissed. There shall be no order as to costs.