' Mr. Nazir Ahmad Siddiqui, Advocate, has entered appearance on behalf of the respondent and the case has been heard at length so the same is being decided as a Notice Case.
' The fact in brief are as under:-- ' The respondent firm submitted tender on 1-3-1978 for the work, "Protecting L.M.B. Taunsa Head Works, R.D. 40-45 from attack of Ghitta/creak by retiring L.M.B. RD 79-3530-Group B, RD 26-49 Opposite 56-35 L.M.B." which was accepted by the Chief Engineer, Irrigation, Multan, and vide letter, dated 12-3-1978 the respondent was informed that his tender has been accepted and was also directed to contact the Appellant No,2 immediately for execution of agreement and for receiving the allotment order. The allotment order was issued by the Chief Engineer vide his letter, dated 18- 3-1978 which was received by the respondent on 20-3-1978 and according to the contents of the letter the date of start of work was mentioned as 14-3-1978. The work consisted of construction of bridge, culverts and earth work. Thereafter, the respondent asked for the design of the Bund and the bridge but the same was not made available. When the work was in progress the affected landowners of the area had already obtained stay order on 4-4-1978 but no intimation to the respondent was given by the Irrigation Department. The respondent, however, informed the officers about the loss sustained and the time wasted previously. As the department paid no heed the work was stopped and intimation was given with the consolidated claim. Submitted vide letter, dated 19-4-1978 which claim was rejected by the Executive Engineer, Appellant No,2. Subsequently the stay order was vacated and this vacation of stay order was conveyed by the Executive Engineer vide his letter, dated 30-4-1978 with the direction to re-start the work. The respondent during the stoppage period which occurred from 4-4-1978 to 18-4-1978 submitted claim to the Government.
Dispute with regard to the work between the respondent and the appellants lingered on but as the estimated cost of the work at the time of calling of tender was Rs,18,82,000 and according to the rate received from the contractors total cost of work became Rs,16,15,000 and the quantity of earth work mentioned was Two Crore CFT. The period of contract was fixed as 3 months. Since the design of the bridge and culverts was not given the earth work was only done and extensions had to be applied for. The respondent had received payment upto the extent of Rs,15,91,171 whereas he had already done the worker or more than Rs,20 lakhs. The respondent served the department with a legal notice on 10-11-1978 for the constitution of an arbitration committee as per the arbitration clause in the agreement but no action was taken. The respondent was informed by the Superintending Engineer that he had no power to appoint arbitrator under clause 28 of the agreement and a request was made to the Government in this behalf but no arbitration committee was formed. The respondent filed an application before the Court with the prayer that the appellants be directed to file the agreement in question in the Court and the arbitration committee be constituted in terms of the clause in the agreement. The respondent in this behalf nominated Mr. M.A.H. Rehmani, Superintending Engineer, Drainage Circle, Faisalabad.
3. This application was contested by the Appellants/Department by way of submitting written reply.
The learned trial Court/Senior Civil Judge Multan on the divergent pleadings of the parties framed the issues and recorded the evidence. The learned trial Court vide judgment, dated 11-2-1991 dismissed the application filed by the respondent. This judgment was assailed before the High Court in an appeal which was accepted vide order, dated 28-2-1993 and the trial Court was directed to order the agreement to be filed in the Court and proceed further in accordance with law. In compliance of the order the learned trial Court vide order, dated 22-6-1994 directed the appellants/departments to file the agreement on 5-7-1994. As the agreement was already on record and Exh.P.2., so the nomination of the arbitrator from respondent's side was filed and the appellants were called upon to nominate their arbitrator. On 9-10-1994 nomination of arbitrator from the Chief Engineer was filed and Ch. Muhammad Ibrahim Superintending Engineer, Canal, Muzaffargarh, was nominated as arbitrator of the department. So, the trial Court constituted an arbitration committee in terms of the arbitration clause in agreement Exh.P.2. And the arbitrators/nominees were directed to file award in the Court by or before 18-12-1994. The award was filed on 25-4-1996 and the parties were directed to file objections against that award. No objection was filed either by the appellants or by the respondent against the said award. At the time of arguments before the trial Court, the learned counsel for the respondent submitted that since no objection has been raised from either side and the arbitrators have been appointed under the arbitration clause, therefore, the award be made as rule of the Court.
4. The learned trial Court observed in para. 14 of the judgment which reads as under:-- ' "No objection has been filed by either of the parties against the award. Both the parties have participated during the proceedings before the Arbitrators and after hearing the parties both the arbitrators have pronounced the award which is on record. Since there is no objection against the award, therefore, the award, dated 24-4-1996 is made rule of Court and decree in terms of the award is accordingly passed in favour of the petitioner."
' The present appeals has been instituted challenging the judgment and decree, dated 24-11-1996 passed by the learned Senior Civil Judge, Multan.
5. The learned counsel for respondents at the very outset has raised following preliminary objection:--
(i) The appeal is hopelessly barred by time and deserve dismissal.
(ii) In view of the Provisions contained in section 3, section 17, section 28 and Schedule I Condition No,3 of the Arbitration Act (X of 1940), the present appeal is not maintainable.
6. Conversely, the learned counsel for appellant in reply to the preliminary objection raised by the learned counsel for respondent contended that the delay has sufficiently been explained the application filed under section 5 of the Limitation Act of condonation of delay. It is next contended that since no express extension for submission of award is available on schedule, therefore, the award has got no value in the eye of law.
7. I have heard the learned counsel for parties at some length and have also gone through the record.
8. The appeal was instituted on 3-1-1998 i,e, after the lapse of more than one year. An application under section 5 of the Limitation Act has been filed alongwith this appeal for condonation of delay.
The grounds mentioned in the application for condonation of delay are that no award was submitted within stipulated time of four months; no time for submission of award was extended by the lower Court and even it was not filed till 12-2-1996; the appellants were told that after filing of award they will be informed but the award was filed on 25-4-1996 instead of 18-12-1994 and appellants came to know about it when they received notice of execution proceeding. Thereafter, the appellants got sanction for filing the appeal and the appeal was filed.
9. The appellant/department applied for obtaining certified copies of judgment on 15-12-1997.
Copies were prepared on 17-12-1997 and was delivered to the appellants/department on the same day. Even after obtaining copy of the judgment and decree the appeal has been filed after the unexplained delay of 17 days. As far as other contentions with regard to the filing of the appeal as mentioned in the application for condonation of delay are concerned the same have got no force.
The relevant record of the lower Court was requisitioned. I have myself minutely checked up the record which reveals that the arbitration committee constituted by the trial Court was directed to submit the award on 18-12-1994. On that date Ch. Muhammad Ibrahim, Superintending Engineer, made a request through a written application which was accepted and the date for filing the award was fixed as 31-1-1995. On that date again the arbitrators filed an application with a request for extension of time for the submission of award which was also granted and the case was adjourned to 16-2-1995. Again the arbitrators filed a request which was again allowed and the arbitrators were directed to file award on 20-4-1995. The record also reveals that from 20-4-1995 to 30-10-1995 the Presiding Officer was transferred and no substitute was available. The case was adjourned to 5-12-1995 for awaiting the award. On that date notices were issued to the arbitrators for filing the award the next date was fixed as 4-1-1996. As the notices were not served the case was adjourned to 12-2-1996. On 12-2-1996 as one of the arbitrator had gone for performing Umra, therefore, the case was again adjourned with direction for issuance of fresh notice for 3-3-1996.
Ultimately the award was filed on 25-4-1996 and the Court invited objections. From the perusal of record it reveals that the adjournments were granted either at the request of the arbitrators or due to the non-availability of the Presiding Officer but the fact remains that both the parties had participated in the proceedings, therefore, the contention of the learned counsel for the appellant that no express extension for submission of award is available on the file has got no force in the eye of law as the learned trial Court relying upon judgments reported as 1996 CLC 848; 1996 CLC 344 and 1989 CLC 1030 has specifically held that it will be presumed that the Court has impliedly condoned the delay in filing the award. The point raised by the learned counsel to the effect that the appellants/petitioners were not heard and notice was given as provided under section 14(2) of the Arbitration Act, has also got no force as the record itself shows that an application was submitted by one Muhammad Sharif, Executive Engineer under Order 1, Rule 10, C.P.C. Which is available at page 119 of the record. This application was rejected vide order, dated 24-7-1996.
Again it is also borne out from the record that the learned counsel for the parties appeared before the trial Court and requested for adjournment for arguments on the award and the case was adjourned to 14-9-1996. The case was adjourned on different dates and ultimately on 24-11-1996 after hearing the arguments advanced by the learned counsel for the parties the impugned judgment and decree was passed by the learned trial Court. From the perusal of record it is very much clear that even the learned trial Court has failed to notice that throughout the proceedings the appellants/petitioners/department had been appearing before the trial Court and the finding recorded by the trial Court in para. 9 of the impugned judgment that after 12-2-1996 the department did not appear before the Court is contrary to record. In PLD 1981 Kar. 730, it has been held: ' "I am, therefore, in no doubt that the notice contemplated under section 14(2) of the Act can be an oral notice to a party and compliance of this provision of law will be satisfied if the party or a counsel appearing for him duly authorised in this behalf, is informed by the Court either in writing or orally about the filing of the award in Court and such a notice could also be a constructive notice."
' Learned counsel for respondent has placed reliance on Sh. Mahboob Alam v. Sh. Mumtaz Ahmad PLD 1969 (W.P.) Lah. 601 in support of objection raised about the maintainability of the appeal. In the light of above said judgment he has submitted that the provisions of section 14(1) and (2) may be mandatory and may form a strong basis for repelling any objection on the ground of limitation but they cannot render an award void. Their effect would be that the Court direct compliance with them but when the objection of the provisions has been served and the parties have knowledge of the content of the awards as well as of its filing there is no need of any formal notice (though its absence may be pleaded in reply to an objection on the ground of limitation).
8. The learned counsel for respondent has also referred the case WAPDA and another v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak & Company (PLD 1990 SC 359) to contend that where the parties had all along submitted to the proceeding of arbitrator without any protest, he cannot turn round and object or insist that the award was made of statutory period. In the above said case it has been held:-- ' "Reading section 3, implied Condition No,3 in the First Schedule to the Arbitration Act and section 28 thereof together, the position of law appears to be clear that the parties are free to enlarge time for making award with their mutual consent as with the consent of the parties, a term can be incorporated in the arbitration agreement giving powers to the arbitrator to enlarge the time for making the award. By Condition No,3 in the First Schedule, statutorily an implied term is incorporated in the agreement that the award shall be made within four months after entering upon the reference: By this statutory provision, the term is to be taken as an integral part of the arbitration agreement and is subject to alteration with the consent of the parties like any other term of a contract. If that were not the intention of the legislature, section 28(2) would not make valid a provision in the arbitration agreement empowering the arbitrator or arbitrators to enlarge the time for making the award with the consent of the parties. If the parties after the expiry of the four months submit themselves to the jurisdiction of the arbitrator and take part in the proceedings enabling him to make an award, it cannot be said that the arbitrator acted without jurisdiction. In such a contingency the principles of waiver and estoppel would apply with full force."
(12) It is now well-settled that where the party had all along submitted to the proceedings of the arbitrator without any protest, he cannot turn round and object or insist that the award was made out of statutory period. In Province of Balochistan v. Malik Haji Gul Hassan (PLD 1982 Quetta 52), Messrs Sindh Cotton Exporter v. Messrs Musa Ismail & Company (PLD 1955 Sindh 242) it was held by the High Courts of Balochistan and Sindh respectively that the party raising no objection before the award is given an voluntarily acquiescing to arbitrator's jurisdiction, such party was debarred from raising objection at latter stage. It was also held by a Division Bench of the Lahore High Court in the case of Ghulam Mohiuddin v. Federation of Pakistan (PLD 1967 Lah. 204) that if a party takes part in the proceedings even after the expiry of four months without raising any objection, it cannot be allowed to raise such an objection."
9. The learned counsel has also referred to 1998 SCMR 307, wherein their lordship have held as under:-- ' "This has repeatedly laid down that so far as the Limitation is concerned the Government cannot be treated differently from the ordinary litigant. If in spite of enormous resources and facilities, the Government continues to delay the filing of cases in time detrimental to its own interest, the opposite party cannot be penalised for its negligence. It is a settled law that each day of limitation must satisfactorily be explained which the petitioner has failed to do in his case. This petition is hopelessly barred by time and no sufficient ground exist for condonation of delay."
10. In the present case, also as discussed above, the department has been taking part in the proceedings before the trial Court, but no effort whatsoever, was made to file appeal in time. In application submitted under section 5 of the Limitation Act, even no explanation was given by the appellant that why the filing of present appeal was delayed after obtaining certified copies of relevant record on 17-12-1997 till 3-1-1998.
11. As far as the maintainability of the appeal is concerned, section 17 of the Arbitration Act reads as under:-- ' "(17)Judgment in terms of award.---Where the Court sees no cause of remit the award or any of the matters referred to arbitration for consideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except on the ground that it is in excess of or not otherwise in accordance with the award."
' In the light of above discussion, this appeal being hopelessly time-barred has also got no merit and the same is dismissed with costs.