The instant revision application is directed against the order, dated 17-4-1998, passed by the learned 1st Senior Civil Judge, Khairpur, refusing to make the award of the Arbitrator as rule of Court and order, dated 27-9-1999, passed by the learned 1st Additional District Judge, Khairpur, dismissing the appeal tiled under section 35 of the Arbitration Act and maintaining the earlier order although on different grounds.
2. Brief facts arising out of the above two orders, as narrated are that the present applicant had filed a Suit No.20 of 1987 for declaration, specific performance of contract and permanent injunction in respect of agricultural land specifically described in para.2 of the plaint. It was averred in the suit that the land in question, originally belonged to late Karim,Dino, father of the applicant and respondents Nos. I to 5. He entered into an agreement of sale in respect of the above land with the applicant for a consideration of Rs.55.250, out of which a sum of Rs.40,280 was readily paid while the balance was agreed to be paid on execution and registration of sale-deed to such effect.
Unfortunately, the father of the applicant (vendor) died before the actual sale-deed could be registered and the applicant was, therefore, obliged to request respondents Nos.1 to 5, who were his brothers and sisters, and became legal heirs of late Karim Dino. They kept the applicant on false hopes and ultimately, refused to perform their obligation. The applicant, in the circumstances, filed the above suit against respondents Nos.1 to 5. The respondents Nos.6 and 7 were also joined as they had illegally mutated the Khata of the land. The applicant paid a sum of Rs.2,188 as court-fee on all the reliefs claimed by him.
3. Before the suit could proceed, good sense prevailed upon the parties and by their free-will and volition, they gave -a joint application (Exh.37) to the trial Court that their case be referred to Mr. Zaheeruddin Ghumro who may resolve their dispute as sole Arbitrator. Mr. Ghumro was the Chairman of Union Council, Sadarjee, where the parties resided. Accordingly, the learned Senior Civil Judge by his order, dated 28-3-1988, issued a Sanad and directed the nominated sole Arbitrator to hear both the parties after giving them proper notices and submit his Award within one month. The parties, later on, also gave an lqrarnama (Exh.43) for accepting the Award without any objections.
4. The sole Arbitrator gave proper notices to the parties and after hearing them and their witnesses, produced by them, gave an Award (Exh.43). The arbitration was held in the Union Council where a number of persons were present. The parties accepted the award and respondents Nos.2 to 4 gave in writing their acceptance. Such application was got written by them from Secretary of Union Council, who was present on the occasion. It is available on record as Exh.43.
5. Thereafter, the respondent No.1 alone had filed objections against the award and requested that the same may not be made rule of the Court. His main objections were as under:--
(a) That the Arbitration was held in presence of Mashirs of the parties but their signatures as well as signatures of the parties were not obtained on the Award. This omission has vitiated the Award.
(b) That the Award announced before the parties was different from the Award, which has been reduced in writing and produced in Court.
(c) That the respondent No.1 was given 6 Acres of land or a sum of Rs.1,20.000 in lieu thereof but this important tact does not find place in the Award.
(d) That for such reasons, the Arbitrator has committed misconduct and the Award is liable to be rejected.
(e) The judgments of the two Courts below are legal and according to law.
6. The learned counsel for the respondent No.1 has referred to the following cases:--
(1) Haji Tayab and 2 others v. Eastern Textile Mills Ltd., Chittagong and 12 others PLD 1970 Kar. 357;
(2) Messrs Naseem Bhai & Co. v. Messrs Pak Jute Balers Ltd. PLD 1965 Dacca 258; (3) Kh. Ghulam Rasool Lone v. Azad Jammu and Kashmir Government PLD 1971 Azad J&K 127; (4) Abdul Razaq andanother v. Sharif Khan and 6 others 1986 CLC 281; (5) Messrs Design Group of Pakistan v. Clifton Cantonment Board 1990 M LD 261; (6) Mst. Murad Begum v. Muhammad Rafiq and others PLD 1974 SC 322 and (7) Mst. Maqbool Begum and others v. Gullan and others PLD 1982 SC 46.
7. The learned trial Court before giving his decision, examined the Arbitrator. He was also subjected to cross-examination, but nothing incriminating could be brought out which could vitiate the Award. Thereafter, at the instance of respondent No.1 the learned trial Court ordered that the Mashirs described to have been appointed, be also examined. Such order was assailed in revision before this Court but apprehending delay, such revision was later on withdrawn by consent. Four persons were named to be the Mashirs, but two of them had died and the remaining two alive persons, namely, Anwar Ali and Khuda Bux were examined. P.W. Anwar Ali gave a support to the objections of respondent No.1 to some extent, but P.W. Khuda Bux gave a complete go-by to the objections and stated that the same were totally false and incorrect. The respondent No.1 did not examine himself.
7-A. After recording the evidence, the learned trial Court gave his decision on 17-4-1998, in favour of respondent No.1. In the concluding paragraph, the learned trial Court has completely ruled out the suggestion that any Mashirs were appointed. He has very clearly pointed out that the entire proceedings before the Arbitrator reveal that there is no document suggesting that Ali Nawaz, Khuda Bux, Anwar All and Bago 'Khan were appointed as Mashirs. In spite of such clear observation the learned trial Court insisted that the Arbitrator failed to obtain the signatures of Mashirs and parties on the Award and for such reasons, the Award was not sustainable and could not be made the rule of the Court. Thus, the finding of the trial Court is self-contradictory on the vital point and cannot be maintained.
8. The present applicant assailed the above order in appeal under section 39 of Arbitration Act, but this appeal also could not succeed as the learned Appellate Court seems to have been influenced by two other independent considerations, namely:--
(a) That some of the parties were directed by the Arbitrator for recording their statements by the Secretary of Union Council Setharja who was not an authority in the matter. (Setharja is wrongly described. It should have been Saderjee). Thus, the Arbitrator has violated the terms of his appointment.
(b) That according to the statement of Anwar Ali, the Arbitrator had decided in his presence that the appellant will have to pay Rs.1,20.000 to respondent No.1, who will distribute the same among the remaining co-sharers. This piece of evidence is missing from the Award, which clearly shows that the Arbitrator has clearly committed misconduct within the meaning of section 30(a) of Arbitration Act. The appeal was accordingly dismissed, with costs.
9. I have given sufficient opportunities to the learned Advocates to advance their arguments and finally on 19-2-2001. I have heard them at length, perused the record and also gone through the case-law produced by the parties. The various rulings, cited by the learned counsel for the respondent No. 1. mostly pertain to the point of "misconduct" of the Arbitrator.
10.The present revision is directed against concurrent findings of two Courts below. The reasons shown in the two judgments for giving a verdict against the applicant are different and opposed to each other. The scope of revisional jurisdiction ha's been summarized in the authority reported in Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCM R 818 as follows:-- "It is to be seen that findings of fact, recorded by the two Courts below are fanciful, perverse or it had been arrived at by process which has rendered the exercise of jurisdiction vested in the Courts defectiye. In case of misconsideration of legal evidence on record, the exercise of jurisdiction and powers possessed by the Court are rendered defective, justifying interference by the High Court in exercise of its revisional jurisdiction."
11. In the light of the above parameter, scrutinizing the evidence on the pivotal points, it appears that both the Courts acted perversely and both decisions suffer from non-reading and misreading of evidence. On vital points, my observation is as under:--
(a) On the point of appointment of Mashirs, the trial Court has expressed a convincing opinion that it was not borne out of the proceedings that Mashirs were appointed. The learned Appellate Court did not give any weight to this objection so much so that while dismissing the appeal, this point did not figure as a reason for the dismissal of appeal. The joint application (Exh.37), made by the parties and the order for the appointment of Sole Arbitrator (Exh.37) did not make any mention that Mashirs will also be appointed. The solitary statement of P.W. Anwar Ali, which too, is full of inconsistencies, should not have been given any credence. There, seems to be no other person who states about the presence of Mashirs. Besides, the non-signing of award by the Mashirs when there was no Mashir, is nothing but a conclusion not warranted in law. There appears no provision in Arbitration Act that the Award is to be signed by the Mashirs and parties, and for such reason the Award cannot be said to be vitiated.
(b) The observation of learned Appellate Court that the Arbitrator directed the Secretary to record the statements of some parties, it is a result of total misreading of evidence. The Arbitrator has stated that some of the parties, presented before him a statement scribed by. the Secretary of Council accepting the Award. Such persons (respondents Nos.2 to 4) subsequently gave in writing through Advocate that the suit be decreed as prayed. The Advocate of respondent No.1 gave "no objection" to such application. Accordingly, the suit against the respondents Nos.2 to 4 has been decreed by the trial Court.
(c) Respecting this allegation, that the Arbitrator had decided to give 6 Acres of land to respondent No.1, it does not find any positive corroboration from any evidence logically also, this allegation, on the face of it, is unbelievable. Either the entire parties (respondents Nos.1 to 5) should have been given this amount otherwise, apportionment of such amount in favour of one single legal heir does not appeal to senses.
(d) The Sole Arbitrator has not committed any misconduct nor there was any such tangible evidence to believe that the allegations forming the basis of objection against the Award, were admissible. Therefore, the two Courts below have thus, illegally refused to exercise jurisdiction to make the award as Rule of the Court.
(e) That it was not open for the two Courts below to have discarded the statements of five (5) defendants and one plaintiff as against the sole and arbitrary statement of respondent No. 1. This was obviously against the established principles embodied in Qanun-e-Shahadat. Even the respondent No.1 was not examined in the Court and only reliance has been made on his affidavit without subjecting him to cross-examination.
12.Before parting with the case, I may clarify that the instant revision application does not require any court-fee for the simple reason that it was filed against an interlocutory order and proper court-fee has already been paid in the suit for the reliefs claimed by the applicant/plaintiff.
Besides, under Court Fees Act, revision petitions are governed by Schedule II of Article I, clause (2) for which court-fee prescribed is Rs.4, which is exempted under the law. The office objection has no force and it is vacated.
13. For all such reasons, 1 am convinced that the orders of the two Court below suffer from matrial illegalities and findings thereto are perverse to the evidence on record. I have, therefore, no hesitation in allowing the present revision. Accordingly, the orders.passed by the two Courts below are set aside. I direct that the Award of the sole Arbitrator being free from all discrepancies, be made the Rule of the Court and a decree should follow in due course. In the circumstances, I leave the parties to bear their own costs. The listed/pending application also stands disposed of.