Messrs Macdonald Layton & Company have tiled the instant appeal against the order, dated 3-7- 1997 passed by Qazi Waqar Ahmad, learned Civil Judge 1st Class, Islamabad, whereby he refused to set aside the award, dated 4-2-1997 and rejecting the objections thereagainst tiled by the appellant made the same Rule of the Court.
2. On this appeal coming up for hearing before this Court, it was admitted to regular hearing vide this Court's order, dated 21-7-1997. It has now been fixed for final hearing before this Court. Mr. M.
Kowkab Iqbal, Advocate, appeared for the appellant while Syed Qalb-e-Hassan, Advocate, represented the respondent. Appearing in support of the appeal, Mr. Kowkab Iqbal, Advocate, learned counsel for the appellant raised the following contentions:--
(1) That as per agreement between the appellant and the respondent, the venue for the arbitration between the parties in the event of the dispute arising was agreed to be Karachi. This being so, the proceedings of arbitration held by the Arbitrator at Islamabad were wholly without jurisdiction, without lawful authority and merited to be interfered with by this Court in appeal.
(2) That the appellant had raised substantial questions before the learned Civil Judge seized of the respondent's application for making the award Rule of the Court but the learned Civil Judge did not advert to any of those questions and remained content with the only observation that the appellant did not appear before the Arbitrator in the matter of arbitration proceedings except at the initial stage and as such could not be permitted to complain against the said proceedings and the resultant award.
(3) That the objections having been filed by the appellant to the award, the same merited consideration and could not be brushed aside only for the reasons that the same were not filed in time.
3. Syed Qalb-e-Hassan, Advocate, learned counsel for the respondent controverted the aforesaid submissions of the learned counsel for the appellant. He maintained that the plea raised by the appellant's learned counsel to the effect that the arbitration proceedings taken at Islamabad and the award made pursuant thereto were without jurisdiction and without lawful authority as the venue of the arbitration proceedings was agreed to be Karachi was wholly without merit and could not be sustained in the facts and circumstances of the case. Elaborating his submissions in this behalf, learned counsel for the respondent Syed Qalb-e-Hassan, submitted that the appellant appeared before the Arbitrator and participated in the arbitration proceedings in that it suggested the names of three persons to act as Arbitrator on its behalf in the matter of dispute between the appellant and the respondent. As the appellant did not evince any interest in the proceedings after suggesting the names of persons to act as Arbitrators on its behalf, the learned Civil Judge appointed one Brig. (Retd.) Muhammad Ashraf as sole Arbitrator whose name had been suggested by the respondent Safdar A.I Shah. The fact that the appellant had no objection to the appointment of Brig. (Retd.) Muhammad Ashraf as the sole Arbitrator could be gathered from the fact that instead of objecting to his appointment as such the appellant requested the Arbitrator to adjourn the arbitration proceedings for a period of two months. From this conduct of the appellant, it could clearly be spelt out that he had no objection to the appointment of the said Arbitrator or his embarking upon the reference at Islamabad. For, at no stage did the appellant raise any 8 objection oral or in writing regarding the appointment of the Arbitrator or the venue of the arbitration proceedings to be held at Islamabad. Learned counsel for the respondent thus maintained that having participated in the proceedings, having suggested the names of three persons to act as Arbitrators between the parties for resolution of their dispute and having raised no objection as-to the venue of Forum of the Arbitration, the appellant could not be permitted to turn around to object to the award as having been incompetently rendered for lack of jurisdiction.
Learned counsel for the respondent, submitted that the appellant did not raise any objection to the Arbitrator's holding the proceedings at Islamabad till after making of the award against it and the application of the respondent to the learned Civil Judge at Islamabad seeking the award to be made Rule of the Court. Learned counsel for the respondent submitted that this conduct of the appellant would show that it participated in the proceedings in the hope that a decision favourable to it shall be given by the Arbitrator but when such was not done, the appellant chose to object to the Arbitrator's jurisdiction on the plea that the venue agreed to between the parties was Karachi.
Learned counsel submitted that when such is the conduct of a litigant, he has been held by the superior Courts as, not entitled to be heard in support of his belated plea. In support of the contention thus, raised by the learned counsel for the respondent, he placed reliance on S. Zahir Hussain v. Province of Sindh and another 1981 CLC 379, Chief Engineer, Building Department, Provincial P.W.D. Government of Sindh v. Messrs Pak National Construction Company PLD 1981 Kar.
553, Mst. Akhtar Bashir v. Muhammad Bashir and another 1981 CLC 423, Messrs Hussain Textile Mills Limited, Karachi v. Messrs Dada Sons Limited, Karachi PLD 1973 Kar. 413; Messrs Habib & Sons v.
Messrs Virak Co. PLD 1957 (W.P.) Kar. 245 and New India Assurance Co. Ltd. v. Dalmia Iron and Steel Ltd. AIR 1965 Cal. 42.
4. Syed Qalb-e-Hassan, Advocate, learned counsel for the respondent also took exception to the plea raised by the learned counsel for the appellant that the appellant had raised substantial questions before the learned Civil Judge seized of the proceedings for making the award Rule of the Court but the learned Civil Judge remained confined only to observing that as the appellant had not appealed before the Arbitrator after participating at the initial stage, he could not be- heard to complain of the award having been incompetently rendered. Learned counsel for the respondent submitted that the conduct of the appellant vis-a-vis the arbitration proceedings was most non-serious and casual. Having participated in the proceedings at the initial stage and having even suggested the names of three persons for the purpose of being appointed as Arbitrators, the appellant on its own chose to stay aloof. The respondent's learned counsel submitted that the appellant did so at his own peril. This being the nature of its conduct vis-a-vis the arbitration proceedings, it could not be permitted to find fault with the award made as a result of the arbitration proceedings or to say that the Arbitrator acted as such without jurisdiction. He submitted that the non-participation of the appellant in the arbitration proceedings without any lawful excuse was a very material question of which the learned Civil Judge rightly took judicial notice. No exception could be taken by the appellant to such notice being taken. The learned Civil Judge in view of this conduct of the appellant as to non-participation in the arbitration proceedings except at the initial stage did not think it worthwhile to advert to other questions of secondary importance.
5. As. To the plea of the learned counsel for the appellant that the objections to the award having been filed by the appellant in the Court of the learned Civil Judge seized of the application for making the award Rule of the Court, the said objections were entitled to be attended to on merits, no matter the same were filed beyond the time prescribed by law for filing of the said objections, learned counsel for the respondent submitted that the plea raised by the appellant's learned counsel to the aforesaid effect was wholly devoid of merit and as such did not deserve to be taken notice of. Learned counsel for the respondent submitted that if the contention as raised by the appellant's learned counsel was accepted as correct, then the provisions in the Arbitration Act requiring the objections to be filed, within thirty days of the award being filed in the Court or the notice of the same being given to the parties would be rendered nugatory. He maintained that mere filing of the objections is not enough. The objections to be entitled to be taken notice of by the Court should be filed within the limitation prescribed by law i.e. Thirty days. Learned counsel for the respondent in support of his this stance in opposition to that of the learned counsel for the appellant placed reliance on the Chairman, Railway Board, Lahore and 2 others v. Hafiz Abdul Qayyum PLD 1984 Pesh. 285, Province of West Pakistan (Punjab) through Secretary, Irrigation and Power Department and another v. Mian Abdul Hamid & Co. 1985 CLC 1170 and Messrs International Development Associates v. Shaheen Foundation P.A.F.
6. I have considered and evaluated the respective submissions of the learned counsel for the parties and have gone through the record placed before me. The star argument raised by the learned counsel for the appellant was that the parties to the appeal having agreed between themselves for the venue of the arbitration proceedings in the event of the dispute arising to be Karachi, the assumption of jurisdiction by the Arbitrator appointed at Islamabad and the resultant award made by him rendered the proceedings and resultantward as wholly without jurisdiction and without lawfulViewed in the context of the circumstances of this case and the conduct of the appellant in the matter of the arbitration proceeding, the argument of the learned counsel for the appellant would appear to be wholly fallacious. True it was that Karachi was agreed to be the venue of arbitration proceedings between the parties yet on the occasion arising for the purpose, the Arbitrator was appointed at Islamabad, the arbitration proceedings were completed at Islamabad and the award was also made at Islamabad. The appellant joined the arbitration proceedings without any reservation and objection on his part. Not only this, making its participation meaningful, the appellant went on to suggest the names of the three persons so that one Arbitrator out of them may he appointed to act as such on behalf of the appellant at Islamabad. Having done that and having requested in writing the Arbitrator to adjourn the arbitration proceedings for two months, the appellant could not be permitted to turn around arid find fault with the arbitration proceedings and the resultant award on account of the venue being different from the one agreed to in the agreement between the parties. Throughout the proceedings of arbitration and till after making of the award by the Arbitrator, the appellant did not raise any objection as to the venue of the arbitration proceedings. The conduct of the appellant viewed in this perspective would suggest that it participated in the proceedings in the hope of a favourable decision being given by the Arbitrator in its favour. However, when the decision was rendered by the Arbitrator against the appellant, it chose to find fault with the decision of the Arbitrator. In my view, in view of the conduct demonstrated by the appellant as aforesaid, it was too late in the day for it to take an exception to the arbitration proceedings and the resultant award as being without jurisdiction and without lawful authority. The stand of the appellant's learned counsel that the objections having been filed by the appellant against the award, the same must have been attended to and decided on merits, no matter the same were filed beyond the time prescribed by law, is such as cannot be countenanced at law. Learned counsel for the respondent rightly pointed out that acceptance of this plea of the appellant's learned counsel would have the effect of rendering the provisions in the Arbitration Act enjoining the filing of the objections within thirty days as redundant, Itis' settled law that when the Legislature makes the provisions for something to be done in a certain manner and within time prescribed by it, that thing must be done in that manner and within the time prescribed. Holding to the contrary and permitting a party to act according to its own convenience rather than in the manner as enjoined by law and within the prescribed time limit would render the statutory provisions wholly meaningless. This also shall have the effect of letting the parties loose in the proceedings before a Court or a Tribunal. It shall also result in unnecessarily lengthening the- said proceedings, as any party to the same would be able to thwart the proceedings at its will and with impunity by raising an issue at -any stage of the proceedings irrespective of the limit of time prescribed by law. In view of a huge pending backlog of cases efforts should be made to strictly construe the provisions providing for something to be done within a prescribed time limit. No party should be given any latitude to act casually and against the provisions of the statute. Viewed in the light of the foregoing discussion, it shall be seen that mere filing of objections by the appellant before the learned Judge seized of the proceedings for making the award Rule of the Court was not sufficient.
The objections having been filed out of time could not be taken notice of and were rightly ruled out of consideration by the learned Civil Judge. Accepting the argument of the learned counsel for the appellant as to the filing of the said objections would amount to placing premium on the negligent conduct of the appellant.
7. The not result of the foregoing discussion is that the award was rightly made Rule of the Court and the decree passed in accordance therewith. The appeal directed against the order of the learned Civil Judge making the award Rule of the Court is without merit and is dismissed leaving the parties to bear their own costs.