1. ' NAZIM HUSSAIN SIDDIQUI J.--This appeal is directed against the order dated 23-2-1998. Passed by learned Single Judge on C.M.A. No,114 of 1998 in Suit No,875 of 1997. Whereby said application was dismissed. The facts relevant for decision of this appeal are as follows: ' The respondent No,1, China International Water and Electric Corporation, filed said suit against the appellant and Deutsche Bank, under section 20 of the Arbitration Act, 1940, hereinafter called the Act, for issuing directions to the appellant for filing arbitration agreement in the Court for referring the dispute of the parties, to the Arbitrator. It is alleged that, after completion of all legal formalities, an agreement was executed between the respondent No,1 and the appellant for construction of Ratodero Pump Station, Contract RTD-I. The contract price of project was Rs,108,668,800 and the period for its completion was 15 months commencing from 28-6-1996 to 28-9-1997. The respondent No, 1 furnished performance guarantee dated 21-5-1996 for Rs,16,300,320 and so also the mobilisation advance guarantee on said date for said amount through the respondent No,2, Deutsche Bank.
2. ' It appears that learned Single Judge appointed Mr. Justice (Retd.) Saleem Akhtar as sole arbitrator, restrained the appellant on certain conditions from encashing the bank guarantee, appointed Major-General (Retd.) Iftikhar Ahmed Kingravi as a Local Commissioner for measurement of works, done by the respondent No,1, to prepare inventory of material and equipment lying at site, directed the Local Commissioner to submit report within three weeks from the date of the order, which was passed on 21-10-1997. The order about the appointment of Local Commissioner was passed on C.M.A. No,4404 of 1997, which was filed by respondent No,1 under section 41 of the Act. The Local Commissioner,. However, on health ground, declined to accept the assignment and thereafter, Mr. Mehmood Rab, former staff officer of Pakistan P.W.D., Karachi, and Mr. Bashir Memon, Official Assignee were appointed as Joint Commissioner on the same terms mentioned in the order dated 21-10-1997, on tentative fee of Rs,40,000 which was to be shared equally.
3. ' The appellant then filed C.M.A. No,114 of 1998 alleging that the respondent had deliberately committed default by discontinuing work at site and prayed to dispense with the appointment of Commissioner. It was dismissed by impugned order.
4. ' Mr. Bilal A. Khawaja, learned counsel for respondent No,1, as a preliminary objection, challenged the maintainability of appeal on the ground that order dated 21-10-1997 was passed under section 41 of the Act read with its Second Schedule, which deals with, inter alia, inspection of the property or things, which is subject-matter of the reference, as such, it does not fall within the ambit of section 39 of the Act, which enumerates the appealable orders. As against above, learned counsel for the appellant contends that impugned order was passed on an application filed under section 151, C.P.C., therefore, it could be challenged, being basically an order under C.P.C. Learned counsel also submits that he has not challenged the impugned order under section 39 (supra). In support of his contention, he cited Sri Krishen and another v. Radha Kishen and another AIR (39) 1952 All. 652 (C.N.135) and Tharpal v. Arjunsingh AIR 1957 Madhya Bharat 22 (V 44 C 13 Jan.). Ratio decidendi of these cases is that where an order is not an order under the Arbitration Act, but is under the provisions of C.P.C., the Arbitration Act would not apply.
5. ' It is significant to note that C.M.A. No,4404 of 1997 was filed under section 41 (supra), for purpose of restraining the appellant in any manner dealing or interfering with the site work of respondent No, 1 . It is clear that said order was passed under section 41 of the Act and in view of its nature, it could not be impugned under section 39. In fact, the appellant, through application under section 151, C.P.C. Sought review of order dated 21-10-1997 which was not permissible nor appeal could be preferred against it. Simply because the appellant applied section 151, C.P.C., it would not change its nature and for all practical purposes, it continued to be an order passed under the Act. It is the content of the order and not .The caption of application, which matters. Besides, at the initial stage, when Major-General (Retd.) Iftikhar Ahmed Kingravi was appointed as Commissioner, no objection was raised by the appellant. Preliminary objection of learned counsel for respondent No,1 is valid and the appeal is not maintainable.
6. ' On merits also, the appeal cannot succeed. The case of the appellant is that the respondent has committed default under clause 63 of the conditions of contract and, despite reference of dispute to arbitration, the obligations of the parties shall not be altered nor that execution of work shall be stopped and that the obligations under the contract were to be performed by the parties. Learned counsel for the appellant also argued that, under the circumstances, the appellant was within its right to proceed, under said clause 63 against respondent No,1. Learned counsel for respondent No,1, in reply, has submitted that since the respondent has invoked clause 69 of the conditions of contract and demobilised from the site of work (under clause 69(2)), there could not be a valid recourse to clause 63. Since the dispute has already been referred to the sole arbitrator, it would be for him to decide that, under the circumstances, which clause was attracted. It is one of the main controversial points involved in this matter. It is much beyond the scope of this appeal, which is only for a limited purpose, to dilate upon the above issue.##TEf## ' Learned counsel for the appellant has also contended that the engineer in contract between the parties was NESPAK, which shall investigate the position at site as provided under clause 63 and the appointment of Commissioner for same purpose would tantamount to interfere with the duties of engineer and possibly it may result in contradictory reports, which, in turn, may lead to new controversies. The respondent No,1, in the counter-affidavit, filed by Qin Guobin, in para. 8, specifically stated that engineer has been and continues to be in collusion with the appellant. The report of the Local Commissioner, we feel, would not create any complications. On the contrary, it may help in resolving the controversy rightly. Learned Single Judge on this point held that the reason for appointment of Local Commissioner, as stood on 21-10-1997, still continues. We agree with above finding.
7. ' On 3-12-1998, after hearing learned counsel for the parties, we had dismissed the appeal in limine and these are reasons for the same.