Mughal Khan respondent instituted a suit for perpetual injunction on the ground that he was using a street/path passing from eastern side of his house as well as on southern side for the last forty years and the ownership rights were conferred upon him on the basis of an agreement dated 28- 5-1936 executed by father of the petitioners, (herein) to which they were not abiding by and were out to obstruct/block the path. The learned trial Court decreed the suit vide its judgment and decree, dated 8-6-1985. The appeal filed by the petitioners was accepted and the case was remanded to decide the same afresh in accordance with law. In the earlier suit the learned trial Court appointed certain arbitrators with the consent of the parties. As both the Arbitrators had inconsistent view, therefore, Raja Amir Akbar, Advocate was appointed as Umpire with the consent of the parties as well as their learned counsel and the report was submitted by the said Umpire, which was contested by the respondents as being barred by time. In second round of litigation, the award was made rule of the Court vide judgment dated 3-7-1987. This judgment was also assailed by filing a revision petition, and the case was remanded vide order, dated 17-7-1989 by the learned Additional District Judge, Rawalpindi with the direction that the decision of Umpire be applied in two respective suits in which they were so appointed. The suit was again decreed by the learned Trial Court vide its judgment and decree, dated 19-6-1991, which was again assailed before the Additional District Judge, Gujar Khan. Vide his judgment and decree dated 5-5-1998 the learned Additional District Judge, Gujar Khan disposed of the same. Hence this revision petition.
2. The learned counsel appearing on behalf of the petitioner has referred to the order passed by the learned trial Court dated 17-4-1984, through which the parties objected to the inconsistent view of the Arbitrators namely Muhammad Ismaeel and Punnu and the parties requested for appointment of an Umpire. The learned trial Court vide order dated 12-5-1984 with the consent of parties appointed Raja Amir Akbar, Advocate, as Umpire. The learned counsel has pointed out that contrary to the intention of parties and award, the learned Trial Court has rendered decision particularly rejecting the award against the rights of the petitioner and in this way his rights have been violated. He has further contended that the lower Appellate Court has not adverted to this aspect of the case and wrongly given a finding to the effect that the report of Umpire Raja Amir Akbar pertains to the suit under appeal, being the award in this suit, shall be made rule of Court and the decree shall follow accordingly. Learned counsel has also referred the path mentioned in the plaint whereas the same has not been denied in the written statement and in this way contrary view taken by the learned Courts below is not in accordance with the pleading of the parties and thus, patent irregularity has been committed by the learned Courts below.
3. Conversely learned counsel appearing on behalf of the respondent has supported the judgments passed by the learned Courts below and also raised an objection about the competency or the revision petition. Learned counsel has further submitted that since the decision given by the Umpire appointed with the consent of the parties has been accepted by the petitioners, he is stopped to raise any objection at this stage.
4. I have given anxious consideration to the arguments advanced by learned counsel for the patties. The learned Appellate Court while disposing of the appeal filed by the writ petitioners has clearly held in para. 9 or its judgment that the report of the Umpire Raja Anur Akbar, Advocate pertaining to the suit under appeal being the award in this suit shall be made rule of the Court and the decree shall follow accordingly whereas the remaining portion of the report pertaining to the suit titled "Mazhar Hussain v. Mughal Khan etc." being in excess of the powers conferred upon the Umpire would be taken as without jurisdiction having no bearing in the instant case. This finding of the learned lower Appellate Court is based on correct appreciation of the record as vide remand order dated 3-12-1985, direction was issued to the learned trial Court for deciding the case afresh in accordance with law and in consequence thereof the award was made rule of the Court vide judgment dated 30-7-1987 but again the matter was assailed and the case was again remanded by the learned Additional District Judge, Rawalpindi vide order dated 17-7-1989. In the two suits two Umpires were appointed one namely Raja Amir Akbar, Advocate appointed in the suit titled "Qurban Hussain v. Mughal Khan" while in the other suit titled as "Mazhar Hussain v. Mughal Khan", Raja Ghulam Jillani, Advocate was appointed as Umpire. The learned trial Court while deciding the suit categorically held that as Raja Amir Akbar, Advocate was appointed in the suit titled as Qurban Hussain v. Mughal Khan and in view of the finding of the Umpire the suit was decreed to that extent but as far as the suit regarding Mazhar Hussain v. Mughal Khan etc., the finding recorded by the said Umpire was not accepted as the same was in excess of powers conferred upon the Umpire as such was declared as without jurisdiction and the same have no bearing on that case. In these very terms the appeal was decided by the lower Appellate Court vide its judgment dated 5-5-1998.
Legally speaking; the reference to the arbitrator has to be confined to the subject-matter of the suit and any award on matter not covered by the suit would be void to that extent. The same remarks would apply to any consequential decree that might be passed by the Court in terms of such award for the simple reason that the Court would not be seized of the matter which were not put in controversy in the suit itself.
5. It is also noteworthy that the judgment and decree has been passed strictly in accordance with the award given by the Umpire and against such an award no revision petition is competent as it would destroy finality of arbitration proceedings. Reference can be made to Debir-ud-Din v. Amina Bibi and others (AIR 1925 Calcutta 475). As the Umpire was appointed with the consent of the parties and the award given by the Umpire was made rule of Court with the modification detail of which has been given in the judgments and decrees of both the Courts below. Learned counsel for the petitioner has failed to point out any infirmity or material irregularity in the impugned judgment and decree. This revision petition has no merit and the same is dismissed without any order as to costs.