CH. IJAZ AHMAD, J.--- I intend to decide F.A.O. No. 107/89 and Civil Revision No. 1012/89 by one consolidated judgment having similar facts and law.
2. The brief facts out of which the aforesaid cases arise are that the arbitration agreement was executed between Syed Naeem Naqi and Syed Zameer Haider on 18.9.1986. The Arbitrators announced the award on 9.12.1986. Arbitrators filed application under Section 14 of the Arbitration Act for making the award rule of the Court on 22.2.1987. Notice was sent to petitioner Naseem Naqvi on 7.3.1987 for 11.3.1987. Syed Naeem Naqvi did not enter appearance and ex parte order was passed against him by the Trial Court on 11.3.1987. Syed Naeem Naqvi being aggrieved filed application for setting aside the order dated 1.4.1987. The application was accepted vide order dated 5.7.1987. Thereafter Syed Naeem Naqvi did not enter appearance as the case was fixed before the Trial Court on 23.7.1987 and the ex parte order was passed against S.N. Naqi on the said date, S.N. Naqi appellant being aggrieved by the aforesaid ex parte order filed an application for setting aside the ex parte order on 28.7.1987. The same was accepted on the same day and the case was adjourned for 8.9.1987. S.N. Naqi tiled objection before the Trial Court on 8.9.1987. The Trial Court rejected the same vide order dated 29.9.1987 as S.N. Naqi did not file objections within the prescribed period i.e. Within one month. During the pendency of the application under Section 14 of the Arbitration Act Naeem Naqi petitioner filed an application under Order 1, rule 10, C.P.C. To implead him as respondent. The learned Trial Court made the award rule of the Court and dismissed the application of Naeem Naqi vide judgment and decree dated 23.7.1988. S.N. Naqi being aggrieved by the aforesaid judgment and decree filed appeal before the District Judge, Lahore on 28.9.1988. The same was returned to the appellant to present before this Court on the objection of the respondents on 18.5.1989. The appellant filed appeal in this Court on 23.5,1989, Mr. Naeem Naqi appellant also filed revision befige the District Judge against the atOresaid judgment and decree which was also returned to him on 18.5.1989 and he refiled before this Court on 23.5.1989. The learned counsel of the appellant-petitioner also filed applications under Section 5 of Limitation Act for the condonation of delay.
3. The learned counsel for the appellant stated that the arbitrators mentioned the amount Rs.
1,58,835/- in the award and the appellant was mis-guided by the aforesaid amount preferred.
Appeal before the District Judge, therefore, there is sufficient cause to condone the delay as the principle laid down by the Hon'ble Supreme Court in the following judgments:-
(1) 1995 SCMR 585.
(2) 1998 SCM R 2296.
The learned counsel of the appellant on merits stated that limitation runs from the date of receiving the notice onder Section 14 of the Arbitration Act and the appellant did not receive notice under Section 14 of the Arbitration Act till the appellant tiled objection petition before the Trial Court, therefore, order dated 29.9.1987 is without lawful authority as the principle laid down by the Quetta High Court in P.L.D. 1971 Quetta 30. He further stated. That rejection order dated 29.9.1987 reveals that the appellant got different dates for tiling the objection before the Trial Court but order sheet of the Trial Court does not reveal at all that the appellant obtained any adjournment to tile the objections before the Trial Court from 11.3.1987 to 29.9.1987, therefore order of rejection is without lawful authority as the Trial Court did not advert to the order sheet itself. He further stated that it is the duty and obligation of the Trial Court to discuss the award itself without even tiling the objection by the appellant as the principle laid down by the Hon'ble Supreme Court in 1989 SCM R 1407.
He further stated that arbitration agreement was executed between S.N. Naqi and Syed Zameer Haider but the contents of the. Award reveal that the parties are different in the award but the learned Trial Court did not apply its mind and did not peruse the contents of the arbitration agreement and award therefore, the same is.Without lawful authority. He further stated that in the contents of the award certain immovable property also mentioned but the award is not registered.
Therefore, the same is not admissible in the evidence. He further stated that Arbitrators did not file alongwith the application proceedings conducted by the arbitrators and evidence recorded and documents produced by the parties. Therefore, the same is without lawful authority as the principle laid down by this Court in P.L.D. 1986 Lahore 254. He further stated that the Trial Court has mentioned in its order that the award was implemented but factually it was incorrect.
4. The learned counsel of Naseem Naqvi stated that there are three business concerns which are as follows:-
(i) Pakistan progressive associates. (Naseem Naqvi) is the sole proprietor).
(ii) Eurken Limited whose directors are Munir, Jamil and Naeem Naqi.
(iii) M/s. Dynamic Limited whose directors are Zahid Rizvi etc. He further stated that arbitration agreement was executed between Naeem Naqi and Zameer Hider and the award was granted also against the concern of Naeem Naqi who is not party to the arbitration agreement, therefore, Trial Court was not justified to dismiss the application tinder Order 1, rule 10, CPC as the law laid down by this Court in -P.L.D. 1970 Lahore 840. He further stated that Naeem Naqi has independent entity but the learned Trial Court without applying its mind dismissed his application without assigning any reason.
5. The learned counsel of the respondents stated that appellant filed application for setting aside ex parte order dated 11.3.1987 on 1.4.1987. Para 4 of the application reveals that the appellant knew the proceedings on 1.4.1987 and the objection was filed admittedly on 28.9.1987 after prescribed period of one month. The Trial Court was justified to dismiss the same as time-barred. He further stated that all the parties were duly presented before the Arbitrators as is evident from paras 2 and 3 of the award. He further stated that Naeem Naqi and Naseem Naqvi are real brothers and are living together therefore learned Trial Court was justified to dismiss the application of Naeem Naqi.
He further stated that all the parties participated before the arbitrators as is evident from paras 2 and 3 of the award, therefore, appellant and petitioner are estopped to raise any objection against the award on the well-known principle of estoppel and waiver. He further stated that award has been implemented and accepted by the parties as is evident from the affidavit of Naeem Naqi dated 15.1.1987 therefore, Trial Court was justified to make award rule of the Court as the principle laid down by the Karachi High Court in P.L.D, 1965 Karachi 326. He further stated that contents of arbitration agreement also reveal regarding the other property as is evident from Para 2 of the arbitration agreement. The appeal of the appellant is highly time-barred and the appellant and petitioner are educated persons, therefore, judgment cited by the learned counsel of the appellant is distinguished on facts and law as in the cited case the litigants are illiterate whereas as mentioned above the appellant and petitioner are educated persons.
6. "The learned counsel of the appellant in rebuttal stated that notice under Section 14 of the Act was not received by the appellant, therefore, learned Trial Court was not justified to reject the objections of the petitioner as time-barred as the principle laid down by this Court in P.L.D. 1993 Lahore 11. He further stated that it is the duty and obligation of the Trial Court to peruse the contents of the award and then decide the matter as the principle laid down by the Hon'hle Supreme Court in 1995 SCM R 73. Learned counsel of Mr. Naseem Naqvi in rebuttal stated that Naseem Naqvi did not participate in the proceedings before the arbitrators therefore. Trial Court was not justified to dismiss the application of the petitioner.
7. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. I would like to decide point of limitation whether the appeal or revision is tiled within time or not. The brief facts to resolve this controversy between the parties is reproduced hereunder in cronological order.
8. Trial Court made the award rule of the Court vide judgment and decree dated 23.8.1988. The appeal/revision filed before the District Judge on 28.9.1998. District Judge returned the appeal/revision to present before this Court on 18.5.1989. Appeal/revision tiled bethre this Court on 23.8.1989 alongwith application under Section 5 of the Limitation Act.
9. It is admitted fact that appellant/petitioner has to tile an appeal/revision before this Court as value of the subject-matter of the award which was made rule of the Court by the Trial Court exceeds the pecuniary jurisdiction of the Addl. District Judge but the appellant/petitioner tiled an appeal/revision before the Addl. District Judge which was admitted for regular hearing and the same was returned to the appellant/petitioner on 18.5.1989. In the similar circumstances the Hon'ble Supreme Court condone the delay in Sherin Vs. Fazal Muhammad (1995 SCM R 584) and observed as under:- "We feel that omission on the part of learned District Judge to take timely action is the major cause of re-filing of the appeal by the appellants in the High Court, out of time. They have been victim of the act, of the Court which furnishes (sufficient cause) under Section 5 of the Limitation-Act, for condonation of delay. The fact that after receiving the memorandum of appeal from this Court, sometime was consumed by the appellant, in presenting it to the High Court, in the circumstances of the case is inconsequential. We are, therefore, inclined to condone the delay in presenting the memorandum of appeal to the High Court."
The above-mentioned judgment of the Hon'hle Supreme Court has considered in Sayed Haji Abdul Waheed's case (1998 SCM R 2296) and the relevant observation is as follows:- "The learned counsel for the appellant contended that above view expressed in Sherin's case is in- conflict with the view expressed by this Court in Abdul Ghani's case and as the numbers of the Hon'hle Judges in both the cases were equal, the matter may he referred to a larger Bench to resolve the conflict. It is true that Sherin's case has not noticed the decision in Abdul Ghani's case.
However, after examining ratio decidendi of both the cases which we have reproduced above, we are of the view that there is no conflict in the opinion expressed in the above two cases".
The contention of the learned counsel of the respondents is not in accordance with the recent trend of the Hon'hle Supreme Court. The Hon'hle Supreme Court has laid down a principle after the addition of Article 2-A of the Constitution that cases must he decided on merits instead of technicalities in Sher Muhammad's case (P.L.D. 1989 S.C. 532) and the relevant observation is as follows:- 2A. Party should not he denied a relief on account of the technicalities in the procedural law, as the same is formed for the purpose of regulating the legal proceedings, they are extended and designed to foster the cause of justice rather than to defeat it".
Subsequently the aforesaid judgment was also considered in Mst. Sardaran's case (1993 SCM R 363) and followed the same principle. It is settled proposition of law that Limitation law should be liberally construed without giving violence to intention of legislature. It must be applied for benefit of plaintiff. I am fortified by the reported judgment 1988 CLC 332. It is also settled proposition of law that the Rules framed in the Code of Civil of Civil Procedure are rules made for the advancement of justice and they should not as for as possible he allowed to defeat the ends of justice. I am fortified by the judgment of Muhammad Sarwar's case (1980 CLC 946). The Hon'hle Supreme Court has laid down a principle in Khuda Yar's case (P.L.D. 1975 S.C. 678) that technicalities should not be hinderence in the way of justice. The relevant observation is as follows:- "The technicalities over the insurmountable hurdle should not be allowed to defeat the ends of justice.
I am also fortified by the following judgments:- 1999 M LD 2164 Alim' Din's case, 1999 M LD 2202.
10. M/s. Adam Jee Construction Companies case, therefore, I am not inclined to dismiss the revision/appeal on the ground of limitation as the principle laid down by the Hon'hle Supreme Court in Muhammad Masiuz-Zaman's case (P.L.D. 1992 S.C. 825). I carefully examined the record which was requisitioned in these proceedings and considered the contentions of learned counsel for the parties, it is pertinent to mention here that there is considerable force in the points raised in appeal/revision and that the objections raised by the learned counsel for the respondent, do not have any substance, by virtue of section 17 of the Arbitration Act which prescribes that if the Court sees no cause to remit the award or any of the matter referred to arbitration for reconsideration or set aside the award, it shall after the time, for making application to set aside the award, has expired or such application having been made after refusing it, proceed to pronouncing judgment according to the award, and upon the judgment so pronounced a decree shall follow against which no appeal would lie except on the ground that it was in excess of or not otherwise in accordance with the award meaning thereby section 17 of the Act caused duty on Court to see if there was no cause to remit award or any of the matter referred to the arbitration for reconsideration or to set aside the award. The Court can exercise such powers suo-motu apart from the application which a party could make for either remission of the award or for its reversion.
If the award is nullity because all the invalidity of the arbitration agreement or for any other reason or it is prima facie illegal and not tit to he maintained; the Court has ample power to set aside the same without waiting for any objection to award being filed or without considering any application for setting aside the same. If thereby any and irrespective of the fact whether or not any objection to the award was tiled or whether the objection if tiled was not within time. After the addition of Section 26-A of the Arbitration Act, it is the duty and obligation of the arbitrator to record the reason for the ward to enable the Court to see if the provisions of law arising in the case has been properly applied or if the award otherwise does not offend any provision of law. Contents of the award reveals that it creates rights regarding immovable properties but the award was not registered. Award in question was therefore ineffective to convey the rights in the properties in favour of respective parties as the principle laid down by the Hon'hle Supreme Court in the following judgments:- 1998 SCM R 816 (Mst. Faridun Malik's case) 1988 SCM R 1623 (Nawabdin'.s case) 1990 P.S.C. 809 (Lachman Dass's case).
Learned Civil Judge did not take the pain to look into the award, to find out if did or did not suffer, from any infirmity or any validity or offended provisions of law. He did not examine the award to see the requirement of section 26 of the Arbitration Act was fulfilled in this case or not. He also did not see, if the award was against the provisions of the arbitration agreement or which was based on the arbitration agreement. Section 17 was interpreted by the Hon'hle Supreme Court in Pakistan, General Manager's case (PLD 1990 S.C. 800) and observed as under:- "We may observe that u/s. 17 of the Act, it is the duty of the Court to examine, whether there was any reason for modifying of the award or for setting aside the award notwithstanding that an effected party may have failed to tile objections to the award on account of the expiry of the limitation period or the parties to the arbitration proceedings may he in collusion and because of that they may not tile any objection to a collusive award. We are indlined to hold that in a tit case, the Court may on its own u/S. 17 of the Act modify or set aside the award if the facts and dictates of justice so demand."