' The Provincial Government in the Highway Department, Highway Division, Sialkot entered into a contract with the respondent for construction of a metalled road from Budha Goraya to Satrah, in Sialkot District from mile 00 to 6.75. The said contract contained an arbitration clause providing for the resolution of disputes between the parties to the said contract through Arbitration. It appears that the disputes arose between the said parties and the Chief Engineer, Punjab Highway Department (North), Lahore vide his letter, dated 7-10-1992 appointed M/s. Muhammad Akbar Khan and Zaheeruddin Babar as Arbitrators, who entered upon reference and announced an award on 2-5-1994. On 15-12-1994 the respondent filed an application under section 14(2) read with section 17 of the Arbitration Act, 1940 impleading Punjab Province (through Collector, Gujranwala), Superintending Engineer, Highway Circle, Gujranwala and Executive Engineer, Highway Division, Gujranwala as respondents. This application was filed in the Court of learned Senior Civil Judge, Gujranwala who entrusted it to himself. The office placed the application before the said learned Senior Civil Judge on 18-12-1994 when he directed that notices be issued to the said respondents in the application for 19-1-1995. He directed that the registered post envelopes be filed within three days. From the record it does not appear that the registered envelopes were filed. However, notices were taken by the process-server and were filed in the Court with the following reports:---
(a) Province of Punjab - Notice received by one Allah Ditta, Clerk in the office of the Collector, Gujranwala.
(b) S.E., Highway Circle, Gujranwala -Notice received by one Muhammad Mumtaz, Clerk in the said office.
(c) XEN, Highway Division, Gujranwala--Notice received by one Muhammad Anwar, Clerk in the said office.
' The notices do not disclose as to whether a copy of the said application was served alongwith the notice or not.
2. On 19-1-1995 the learned Civil Judge passed the following order:--- {{URDU TEXT}} ' Thereafter, the case was adjourned on five occasions for the said purpose. On 22-6-1995 the order on the daily order-sheet narrates that the matter has been transferred to the Court of Ch. Abid Rizwan, Civil Judge by orders of the learned District Judge and counsel for the respondent who was present was directed to appear before the said Court on 27-6-1995. On the said date the transferee Court passed an order that counsel for the parties are present; that he has no jurisdiction to try the application and he remitted the file to the learned District Judge for proper orders for 29-6-1995. On 29-6-1995 the District Judge passed an order narrating that none is present and that the matter is being transferred to the Court of Mr. Maqsood Ahmad, Civil Judge.
On the same date the said transferee Court called the case and as none was present directed that notice be issued to the parties and the counsel for 20-7-1995. Same order was repeated on 20-7- 1995 for 13-9-1995. On 13-9-1995 the order narrates that counsel for the plaintiff is present and for the defendants Shaukat Ali, S.D.O. Is present and the matter was adjourned for recording of ex parte evidence on 5-10-1995. On the said date counsel for the plaintiff was marked present and it was adjourned to 2-11-1995 for the same purpose. Same order was passed on 2-11-1995, 22-11-1995, 10-12-1995, 18-1-1996, 4-2-1996 and 28-2-1996. On 24-3-1996 an order was passed directing the counsel for the present respondent to produce the authority regarding the appointment of arbitrators. This order was again repeated on 28-3-1996 and 4-4-1996. On 18-4-1996 the learned Civil Judge invited objections to the award for 14-5-1996. The same order was repeated on 14-5- 1996 and on 21-5-1996. On 23-5-1996 the short order reads that the counsel for the petitioners in the said application is present. Arguments have been heard and award is made rule of the Court. A separate order of the even date was recorded in English making award, dated 2-5-1994 the rule of the Court.
3. Vide the said award the Arbitrators had awarded a sum of Rs,11,14,128 to the respondent. On 18- 10-1996 an application was filed for the execution of the decree passed in terms of the award. On 11-2-1997 warrants of attachment were ordered to be issued. Meanwhile on 14-12-1996 the present Civil Revision was filed in this Court through Abdul Majid Sheikh, Advocate Supreme Court, 1-Turner, Road, Lahore wherein the following were named as petitioners:---
(1) Waheed Ahmed Malik, XEN, Highway Division, Sialkot.
(2) Province of the Punjab through Collector, Gujranwala.
(3) Superintending Engineer Highway Circle, Gujranwala.
' This Civil revision was put up before the Court on 28-2-1997 when pre-admission notice was issued to the respondent and stay of execution was also issued. On 1-6-1999 the Civil Revision came up before me in the presence of Mr. Ghulam Haider Al-Ghazali, Additional Advocate-General for the petitioners and Mr. Riaz Karim Qureshi. Learned counsel for the respondent raised an objection that the Civil Revision has not been competently filed and is also barred by time. It was disclosed in the revision petition that the Provincial Government had applied for setting aside of the award before a Court at Sialkot and that the same application is pending. Consequently I called for the record from the Civil Court of Gujranwala as well as from the Court at Sialkot which were received and placed before the Court. The matter has been heard today.
4. Learned Additional Advocate-General contends that examination of the proceedings culminating in the order, dated-23-5-1996 would show that the same are utterly without jurisdiction and as such coram non judice. The learned Law Officer vehemently urges that notwithstanding the hurdles in the way i,e,, incompetency of the Advocate who filed the Civil Revision in the first instance and the matter of limitation, the present is a case which imminently calls for interference by this Court under section 115, C.P.C. Mr. Riaz Karim Qureshi, learned counsel for the respondent, on the other hand, vehemently argues that Mr. Abdul Majid Sheikh, Advocate who filed the Civil Revision had no authority to do so. His such conduct in acting for the Provincial Government without any lawful authority has earlier been noted by this Court and deprecated in several judgments. Further argues that the Civil Revision even otherwise is not competent against the impugned order as an appeal is provided for the same under section 39 of the Arbitration Act, 1940. Then urges that whether the present proceeding is to be treated as a Civil Revision or an appeal the bar of limitation is insurmountable. I have already narrated in detail the proceedings that took place in the Court of Civil Judge, Gujranwala starting form filing of the application by respondent No,1 and ending into the order making the award, dated 2-5-1994 as rule of the Court.
As stated above, the Provincial Government had been informed of the award by the Arbitrators as communicated to the Provincial Government on 28-9-1994. An application under section 33 read with section 30 of the Arbitration Act, 1940 for the setting aside of the said award was filed in the Court of Senior Civil Judge, Sialkot on 2-1-1995. Notices were issued to the respondent and the respondent ultimately appeared on 27-3-1995.
' On 16-4-1995 an application was filed by the respondent to the effect that proceedings are already pending in the Civil Court at Gujranwala and that the present proceedings cannot continue and the same be stayed. It was also stated in the application that the proceedings at Gujranwala are fixed for 10-4-1995. A reply was filed on 26-4-1995. It was contended in the reply that the present petitioners have no knowledge about the proceedings at Gujranwala. It was also contended that the Court at Gujranwala had no jurisdiction to entertain the said proceedings. It was further averred that wrong addresses of the present petitioners have been given in the said proceedings. Same reasons were also stated to explain the said objection to the jurisdiction which will be dealt with later. It appears that alongwith respondent No,1, all its partners as also two Arbitrators were also impleaded as respondents in the said application for setting aside of the award. After receipt of the said reply the matter was kept on being adjourned for service of the remaining respondents, till 18-10-1995 on which date an application was filed by the learned counsel for the present petitioners stating that an application has been filed for consolidation of two proceedings in this Court. The record shows that till such time that the records of the said proceedings were called the matter was being adjourned first for the orders that were to be passed on the said application and then for the service of notices to the respondents in the proceedings.
5. An inquiry was made to check up as to whether any such application as referred to in application, dated 18-10-1995, was in fact filed in this Court. It was found that no such application was filed. Learned counsel who had filed the said application in the Court at Sialkot was also summoned by me and he explained that he acted on the instructions of the departmental representatives.
6. Coming first to the argument of the learned counsel for the respondent I find that the technical objection as to the competency of the present Civil Revision is valid. I do find that Mr. Abdul Majid Sheikh, Advocate had acted without lawful authority in filing the present Civil Revision on the basis of power of attorney which was signed only by petitioner No,1 and that too in his personal name.
The Civil Revision prima facie is barred by time vis-a-vis the ex parte order, dated 23-5-1996. I, however, disagree with the learned counsel with regard to his contention that the impugned order, dated 23-5-1996 was appealable under section 39 of the Arbitration Act, 1940. Learned counsel tried to bring the said impugned order within the ambit of section 39(1)(vi) of the Arbitration Act, 1940. According to the learned counsel the order under revision is tantamount to refusal to set aside the award. I find the said argument to be without any force. The learned trial Court vide the said impugned order disposed of the application filed by the respondent under section 14(2) read with section 17 of the Arbitration Act, 1940. The prayer made in the application was that the award be got filed and made rule of the Court. The question of setting aside or refusal to set aside the award could have arisen only if any of the parties to the arbitration agreement had prayed for the same. In the case in hand none of the parties presented any application before the learned trial Court and as such there was no occasion for the learned trial Court to set aside or refusal to set aside the award. Section 39 is the only provision of Arbitration Act which provides a list of appealable orders and the impugned order in my view does not fall under any of the items enumerated in the said section 39. It is also not the grievance of the petitioners that the decree is not in accord with the award and as such the matter is also not covered by the appeal provided in section 17 against the decree to follow on an award. The Civil Revision is, therefore, competent.
7. Having held the present application under section 115, C.P.C., to be barred by time, the next question that arises is as to whether for exercising jurisdiction under section 115, C.P.C., this Court is dependant upon an application to be filed by a party or has the authority to pass an appropriate order in case it finds that any of the eventualities mentioned in clauses (a), (b) and (c) of subsection (1) of section 115, c.p.c., do exist. A plain reading of the said section 115 would reveal that this Court is not so dependant and in case it appears to this Court that the 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.
' Then it may make such an order in the, case as it thinks fit.
8. I may refer here to the following observations of Mr. Justice Shafi-ur-Rehman (as his Lordship then was) in the case of Muhammad Aslam and another v. Munshi Muhammad Behram and another (1991 SCM R 1971) contained in para.8 of the report at page 1975:--- "The revisional powers of the High Court cannot be limited or abridged by the act of the parties. It can in Supervisory jurisdiction of superintendence and control, oversee and correct all jurisdictional error or errors which have materially affected the proceedings of subordinate Courts in which appeal does not lie to it."
' Incidentally the said reported case also arose under the Arbitration Act, 1940 and it was observed that an appeal in the case under section 39 did not lie to the High Court and, therefore, the revisional jurisdiction was available in respect of the proceedings and further orders passed therein. Having said so I proceed to examine the proceedings of the learned trial Court at Gujranwala in the application filed by the respondent. I have already reproduced the entire proceedings commencing from the filing of the application and ending in the ex parte order, dated 23-5-1996. On a scrutiny of the record which I have summoned I am of the firm belief that the learned trial Court was not aware of the nature of the proceedings that had been filed before it.
Had the learned trial Court been aware of the nature of the proceedings, then it would have known that under section 14 of the Arbitration Act, 1940 a direction has first to be issued to the Arbitrators to file the award together with any deposition and document which may have been taken to prove before them. Thereafter, in compliance with the said direction of the Court if an award is filed by the Arbitrators then after the award has been so filed a notice has to be issued to the parties that the award has been filed. The date of issuance of this notice is the terminus a quo for the start of limitation period provided for in Article 158 of the Limitation Act, 1908 when a party can file objections against the award. Against the said legal position I find that on the very first date i,e,, 19-1-1995 it was the counsel for the respondent who filed the award. The learned trial Court was absolutely unaware as to what it has to do thereafter, and promptly proceeded against the petitioners ex parte and fixed the case for ex parte evidence. It is a matter of record that the case was continuously being adjourned for ex parte evidence till 24-3-1996. A perusal of order, dated 24-3-1996 shows that it was for the first time that the Court got conscious of the fact that this is an arbitration matter and called upon the counsel for the respondent to produce the authority for presenting the award in Court. The order is not clear but the above appears to be the intent. Thereafter on 18-4-1996 the learned counsel was asked to file objections and this order was repeated for the next three dates and abruptly arguments were heard and award was made the rule of the Court. The learned Civil Judge while recording the order, dated 23-5-1996 did not care even to check his file while observing that the respondent has failed to produce "any document" depsite service in person. Both the observations are against the record of the trial Court. Neither was any service effected on any competent person and it is not apparent as to what are those documents which were required to be produced by the respondent.
Thereafter, the trial Court observed that the award has been filed and no objections have been filed by either parties. Here again he was oblivious of the fact that no notice in terms of section 14(2) of the Arbitration Act, 1940 was served on the petitioners. The learned trial Court also failed to take note of the fact as to in what circumstances and under what authority learned counsel for the respondent came to file the award in Court. To my mind the learned trial Court did not even care to go through the award. Had he gone through the award he would have found that the parties to the award are Province of Punjab (through Secretary, Government of Punjab, Communication and Works Department, Lahore) and XEN Highways Division, Sialkot. None of the said respondents in the award were parties as such to the application. Punjab Province was sued through Collector, Gujranwala and the XEN, Sialkot was not even impleaded. The learned trial Court would have further found that the work under the contract was to be executed at Sialkot District. He would have further found that he has no jurisdiction to entertain and try the application within the meaning of section 31 of the Arbitration Act, 1940. A comparison of the title of the petition with that of award would have revealed to the learned Civil Judge that the statement made in para. 8 of the petition is wrong as no Officer from Gujranwala was a party to the award or for that matter the contract containing the arbitration clause.
9. I may point out here that the learned counsel representing the respondent at Gujranwala also represented them at Sialkot. He did file an application at Sialkot informing of the proceedings at Gujranwala but conversely did not inform the Judge at Sialkot, that the application under section 30/33 of the Arbitration Act, 1940 is pending at Sialkot and in response to his application the present petitioners have denied the jurisdiction of the Court at Gujranwala.
10. In view of the above discussion I have come to the conclusion that the learned Court at Gujranwala from commencement of the proceedings till their closure was not aware of the nature of the proceedings and the manner prescribed by law in which he was to exercise his jurisdiction.
The said failure on the part of the learned Court at Gujranwala has resulted in miscarriage of justice. It was the right of the petitioners to question the validity and existence of the award by filing an application under section 30/33 of the Arbitration Act, 1940. They in fact did exercise that right in the Court which prima facie had the jurisdiction under section 31 of the Arbitration Act, 1940. The respondent also did not make any effort to assist the Court in exercise of its jurisdiction in the manner prescribed by law. The proceedings and the order, dated 23-5-1996 in which the same have culminated are utterly without jurisdiction and I declare the same to be so. The result would be that application under section 14 read with section 17 of Arbitration Act, 1940 filed by the respondent in the Court of Civil Judge, Gujranwala shall stand transferred to the Court at Sialkot where the proceedings under section 30/33 of the Arbitration Act, 1940 are pending. The record be immediately sent to the learned District Judge, Gujranwala who shall immediately remit the same to the Court of Senior Civil Judge, Sialkot. The learned Senior Civil Judge, Sialkot shall proceed with the matter expeditiously. The objections already stand filed, the respondent shall have a right to reply and, thereafter, any evidence which the parties may like to produce be recorded and the case decided in accordance with law within two months of the receipt of the record by the learned Senior Civil Judge, Sialkot even if he has to proceed on day to day basis. The Civil Revision is accordingly allowed in the above terms.