' This order will dispose of Civil Revision directed against the order, dated 12-1-1999, passed by learned Civil Judge, Lahore, whereby the Trial Court restored the Arbitration application under Section 14 of the Arbitration Act which was dismissed on 27-6-98.
2. The background of the case is that the petitioner and respondents No,1 to 4 are the legal heirs of Brig (R) Muhammad Aslam Khan and Mst. Farida Begum. In order to resolve the matter of distribution of assets of their parents, devolved upon them, the petitioner and respondents No,1 to 4 (Legal heirs 2 sons and 3 daughters) appointed respondent No,5 (Air Marshal (Rtd) M. Asghar Khan) as sole arbitrator to decide all questions regarding inheritance, distribution and devolution in accordance with the provisions of law of Sharia and in accordance with the provision of the Arbitration Act, 1940, and that respondent No,5, the arbitrator, gave an award on 4-11-1997 and filed an application, dated 4-11-1997 (Annexure 'A') for making the award as rule of Court and this application was entrusted to Mr. Asmatullah Khan Niazi, Civil Judge, Lahore, and that the legal heirs (petitioner and respondents No,1 to 4) joined the proceedings and on 19-6-1998, the trial judge (Mr. Tahir Naeem, Civil Judge, Lahore) ordered respondent No,5, the arbitrator to file amended application as the application under Section 14 of the Arbitration Act, 1940, did not contain the names and addresses of the parties and that on 27-6-1998 no one appeared on behalf of respondent No,5 (the applicant before the trial Court) as such his application, dated 4-11-1997, was dismissed for non-prosecution and that respondents No,1, 3 and 4 before the trial Court moved an application under Order 9, Rule 9, read with Section 151 C.P.C. To restore the application, dated 4-11- 1997, and the learned trial Court after hearing the arguments dismissed the application vide his order, dated 18-7-1998, and that an amended application under Order 9, Rule 9, C.P.C. On behalf of respondent No,5 (Arbitrator) was filed on 29-7-1998 which was replied, contested by the petitioner and respondent No,
2. Respondents No, 1, 3 and 4 did not contest. In the meanwhile, the case was transferred to the Court of Ch. Muhammad Latif, Civil Judge, Lahore. The trial Court accepted the application under Order 9, Rule 9, C.P.C. Vide his order dated, 12-1-1999.
2. Learned counsel for the petitioner has assailed the impugned order on the grounds that while dismissing the application for restoration, vide order dated, 18-7-1998 the learned trial Court had observed that the petitioner shall be required to make his presence on every date of hearing either in person or through counsel or through authorized agent and no one appeared on behalf of the petitioner of the main petition on 27-6-1999 and that only the petitioner of the main petition can move an application for restoration, and that the petitioner (petitioners who moved application for restoration) were made respondents No,1, 3, and 4 in the main petition, and were not entitled to move an application for restoration; and that on 29-7-1998, another application for restoration under Order 9, Rule 9, read with section 151, C.P.C. Was moved by Miss Rukhsana Lone, Advocate, alleging to have been filed on behalf of the arbitrator but the application, dated 29-7-1998, did not bear the signature of the arbitrator and the contents of the application were not supported by an affidavit of the arbitrator, which is a mandatory requirement of law and that no sufficient cause for non-appearance was stated in the said application and that the order , dated 12-1-1999, was directly in conflict with the earlier order, dated 18-7-1998, of the trial Court and the learned trial Court was not legally justified to review his earlier order, dated 18-7-1998, and that the restoration of arbitration proceedings was time-barred as the application was made on 29-7-1998.
3. On the other hand, learned counsel for the respondents have taken the stand that respondent No,5 was the sole arbitrator appointed by the parties to the award for the partition of the property and is real uncle of the parties who are the legal heirs of Late Brig. (Retd) Muhammad Aslam Khan.
He announced his award on 4-11-97 and filed the same under section 14(2) of the Arbitration Act.
Thereafter, it was for the court to process the same and to make the award rule of the court under section 17 of the Arbitration Act and that all the parties did appear before the Court to pursue their respective cause. The petitioner's brother, respondent No,2 only filed objections against the award under Sections 30 and 33 of the Arbitration Act, whereas respondent Nos.1, 3 and 4 supported the award to be made rule of the court and to pass the decree and the petitioner in the civil revision and respondent No,2 are in league with each other and are in physical possession of substantial part of the estate of the deceased than their due entitlement and thus in one way or the other are trying to prolong the proceedings and that when all the parties were present and the date was a formal date the application under section 14 of the Arbitration Act could not be dismissed for the absence of the arbitrator and that the application for restoration was filed by the arbitrator on 25- 7-1998 well in time.
4. In the case of Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another (1985 SCM R 597), the Hon'ble Supreme Court of Pakistan observed as under:- "Apparently, the prevalent view is that as the provision of the law is meant to enable the parties to know that the award has been filed in Court so that they may file their objections, if any, within the time prescribed, a formal compliance in strict conformity with the relevant provision of law is not to be insisted upon when substantial compliance has been made of it. In keeping with this view where the fact of filing of the award by the arbitrator had already been in the knowledge of the parties and their counsel had in response to notice issued by the Court appeared and taken time to file their objections, as is in the present case, an insistence on a formal service of notice under Order XXIX would be a mere technicality. Even otherwise, an objection on this scope had neither been taken before the trial Court nor in the memorandum of appeal before the High Court was, therefore, only an afterthought not entitled to serious consideration.
' As regards the duty of the Court not to act blindly on an award, which had weighed with the High Court, it is no doubt true that mere absence of objection was not altogether to absolve the Court from its responsibility of deciding whether the award was valid on the face of it."
5. Similarly, in the case of Sh. Mahboob Alam v. Sh. Mumtaz Ahmad (PLD 1960 (W.P.) Lahore 601), the Hon'ble Supreme Court of Pakistan has stated the object and scope of Section 14 'of the Arbitration Act, 1940, as under:-- "Coming now to the merits of this appeal, we will take up the objections under subsections (1) and
(2) of section 14 together. Section 14(1) provides for a notice of the making of the award by the arbitrators. Section 14(2) provides that after the award is filed by the arbitrators the Court shall give notice to the parties of the filing of the award. Learned counsel for the appellant contends that in view of the use of the word "shall" in either of these two provisions, it is necessary to comply with them, and in the absence of notice of the making of the award, or of the filing of the award, the award is as yet unenforceable and void. We see little force in these contentions when urged by a person who, after coming to know of the contents of the award, had filed objections to the award.
The objection of the provision relating to notice of the making of the award is only to inform the parties that the award has been made so that they may file an application for the filing of the award. Such an application has to be filed within ninety days of the service of notice of the making of the award under Article 178 of the Limitation Act. Similarly, the object of giving notice of the filing of the award is to enable the parties to file an application for the setting aside of the award. Such an application has under Article 158 to be filed within thirty days of the service of the notice of the award. Had there been involved any question of limitation as to an application for filing of the award, or as to an application for setting aside of the award, reliance upon the provisions to give notice would have been justified. But, in the present case, there was no application for filing the award at all and there was no objection on the ground of limitation to the application for setting aside of the award. No objection as to the absence of notice of the making of the award or of filing of the award can be taken by a party who has filed an application for setting aside of the award and the application has been entertained without any objection as to limitation. It is not contended that the appellant did not know of the contents of the award for he had filed objections after going through the award. Learned counsel for the appellant has relied upon judgments which lay down that the provisions of section 14 (1) and (2) are mandatory. They may be mandatory and may form a strong basis for repelling any objections on the ground of limitation, but they cannot render an award void. Their effect would be that the Court would direct compliance with them but when the object of the provisions has been served and the parties have knowledge of the contents of the award 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). Learned counsel for the appellant urges that as long as there in no notice for filing of the award, objections cannot be filed at all. We asked him to refer us to any provision to that effect in the Arbitration Act and he was unable to do so. An application for setting aside the award can, no doubt, be filed within thirty days of the service of notice of filing of the award, but there is no reason to suppose that even if notice has not yet been formally served, a party cannot put in an application for setting aside the award. Suppose in the present case this application for setting aside the award had succeeded, could the respondent urge in the High Court that as notice of the award had not yet been served on the appellant, the whole proceedings were infructuous? He could not possibly be allowed to urge that.
It is only the person on whom notice had not been served, who could make a grievance of it and he too could rely on it only in reply to a plea of limitation. We are at the same time of the opinion that the point under discussion can be decided even by reference to section 17 of the Arbitration Act, which runs:-- "17. Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration 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 accordance with this section either the limitation for filing an application to set aside the award should have expired or such an application should have been made and rejected, and if it is rejected the Court has to proceed to deliver judgment in accordance with the award. This section does not say that as long as notice of filing of the award has not been served, the Court is not to deliver judgment."
6. The role of Arbitrator is to settle the dispute between the parties amicably by avoiding all types of technicalities of procedural law but within the four corners of substantive law and to provide a domestic forum for speedy disposal of disputes. This is done through persons in whom both the parties repose their trust. Therefore, the course that the courts should generally follow is to encourage the settlement of dispute by this method wherever the parties have themselves agreed to do so. It is according to the scheme of Arbitration Act, 1940. There are three modes of arbitration:--
(1) F rbitration with the intervention of the Court where there is no suit pending (section 20).
(2) Arbitration in a suit pending before a Court (Section 21).
(3) Arbitration without the intervention of the Court.
' The present case falls in. The 3rd category as the parties have themselves agreed to refer the matter to the Arbitrator/respondent No,5 and to this kind of arbitration Ch. II of the Arbitration Act. Is applicable.
7. Further there are stages of all the categories.
(i) Reference to the Arbitrator.
(ii) Making of award by the Arbitrator.
(iii) To file the award in the Court.
In the present case, these three stages have passed. What I gathered from the contentions of the learned counsel for the petitioner is that the Arbitrator is being considered as one of the parties to the award. He was not a party to the award nor he is a party to the award. His role was that of an Arbitrator and he had an option to file award in the Court which he has exercised and now the matter is in the Court between the parties to the award. The learned civil Judge has very correctly appreciated in his order, dated 12-1-1999, that the award under adjudication before the Court amongst legal heirs of Brig. (Retd) Muhammad Aslam Khan and Mst. Fareeda Begum who happened to be parents of the parties, and that so far as objections as well as counter version of the parties inter se, was, that was a matter of probe and may be depended on the evidence and on the verdict and that parties were legal heirs, the sole arbitrator was appointed and that law favoured adjudication on merits and that parties being Muslim as such no sooner prepositions passed away estate vested in the legal heirs there and then and no limitation ran against any of the legal heirs to the extent of its entitlement. The learned Civil Judge has also referred to the view of the Hon'ble Mr. Justice B. Z. Kaikaus in his dismissing judgment in the case of Imtiaz Ahmad v Ghulam Ali and 2 others (PLD 1963 Supreme Court 382) about the question as to whether too strict adherence to, helps course of justice? The Hon'ble Judge had observed:-- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
8. In the present case it is also admitted fact that the parties have entered appearance before the Court and even put forward their view points with regard to its veracity, correctness or objection, there was no occasion for an arbitrator to be present or prosecute the conflict.
9. For disposal of this revision petition reference to section 115, C.P.C. And Order 9, Rule 9, C.P.C. Is relevant. Both these provisions are reproduced as under: "115. Revision.
(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or, with material irregularity, the High Court may make such order in the case as it thinks fit.
' Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court, and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court.
' Provided that such application shall be made within ninety days of the decision of the Subordinate Court which shall provide a copy of such decision within three days thereof, and the High Court shall dispose of such application within three months.
(2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject matter whereof does not exceed the limits of the appellant jurisdiction of the District Court.
(3) If any application under sub-section (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.
(4) No proceedings in revision shall be entertained by the High Court against an order made under sub-section (2) by the District Court."
"Order IX, Rule 9.
"Decree against plaintiff by default bars fresh suit.
(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non- appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceedings with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite-party.
(3) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub-rule (1)."
The above rule provides restoration of a suit dismissed in default if the applicant satisfies the Court that there was sufficient cause for his nonappearance when the suit was called on for hearing. The power to restore is discretionary and this discretion is of course judicial in its nature. Now what is "sufficient cause" it has not been defined in the statute or the rules framed under it. Thus I have to revert to the judicial pronouncement on the subject.
10. In the case of Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others (AIR 1937 Privy Council 276) the Privy Council observed:-- " Mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the meaning of S.5, Limitation Act, though there is certainly no general doctrine which saves parties from the results of wrong advice."
11. In the case of Sardar Muhammad Sadiq Khan and others v. K.B. Abdul Hayee Khan and others (PLD 1957 Supreme Court (Pak.) 186), the Hon'ble Supreme Court observed:- 'Sufficient cause' in Order XXII, rule 9, C.P.C. Need not be only of a physical nature. The impediment in the way of the party, on whom rests the duty of bringing the legal representatives on record, may be of a positive nature or even negative in character e.g. a substantial and bona fide doubt as to the necessity for acting under the above provision at all and consequentially as to the appropriate time for taking such action."
12. In the present case, the contents of the application under Order 9, Rule 9, C.P.C. Show that the Arbitrator, respondent No,5 was under the impression that he was neither legally bound nor even to pursue the application under section 14 of the Arbitration Act and this impression was legally correct. It has also been stated that the date 22-6-1998 was not the date of hearing. Both these grounds are factually correct, legally sound and amount to sufficient cause for restoration of the application under Order 9, Rule 9, C.P.C. Which jurisdiction was vested in the trial Judge and thus he has exercised the jurisdiction fully vested in him by law. The impugned order is, therefore, maintained and the revision is dismissed.