SAYED ZAHID HUSSAIN, J. - The appellant, who is an Advocate, was successful in obtaining a decree dated 2.3.1980 in his favour in a suit for pre-emption qua the suit land. The defendants therein filed an appeal thereagainst which was dismissed on 26.7.1989. They filed second appeal before this Court, during the pendency of which the appellant is stated to have entered into an agreement to sell with respondent No. 1 on 9.6.1993, for a consideration of Rs. 8,35,000/- out of which, Rs.
5,00,000/- were paid. The balance of Rs. 3,35,000/- had to be paid after the decision of the appeal.
The said appeal was dismissed on 4.12.1993. It was the case of respondent No. 1 that he asked the appellant for completion of the sale on receipt of Rs. 3,35,000/- but he refused. Respondent No. 1 thereafter succeeded in obtaining the possession of the suit property and filed a suit for confirmation of possession through specific performance of agreement dated 9.6.1993. The appellant contested the said suit and denied the agreement. The learned Trial Court framed issues emerging from the pleadings of the parties. Partial evidence of respondent No. 1/plaintiff had been recorded when on 24.4.1999, the parties made a statement before the Trial Judge that Ch. Muhammad Hussain, he appointed as referee whose decision shall be acceptable to the parties and the suit be decided accordingly. The statement were signed by both the parties and the case was adjourned for appearance of the referee. On 15.5.1999, Ch. Muhammad Hussain appeared before the Court, who made a statement and also produced his report. Ex.C-l before the Court, that the suit be decreed in favour of respondent No. 1/plaintiff. It may be noted that on 13.5.1999, the appellant had made an application before the Trial Judge for revocation of the reference terming the appointment of Ch. Muhammad Hussain as illegal and that he had become partisan and declared his mind. The said application was rejected by the learned 'trial Judge on 15.5.1999 and the suit filed by respondent No. 1/plaintiff was decreed in view of the statement of the referee with the direction to the plaintiff/respondent No. 1 to deposit the remaining amount of Rs. 3,35,000/- in Court. This appeal has been filed by the appellant against the same.
2. It is contended by the learned counsel for the appellant that the appointment of referee was illegal as the jurisdiction of the Court could not be delegated to the referee. It is contended that the referee did not act as such but assumed the position of an arbitrator as he heard the parties and the decision was given thereafter by him. It is further contended that the appellant was entitled to revoke the authority of the referee at any time before his statement was acted upon by the Court.
Reference has been made, by him to Muhammad Akbar and another v. Muhammad Aslam and another, (PLD 1970 SC 241), Muhammad Hanif Khan and another v. Ghulam Farid: Khan and others (PLD 1988 Lahore 250), Ghulam Farid Khan v. Muhammad Hanif Khan and others (1990 SCMR 763), Muhammad Jameel v. Allah Ditta (PLJ 1996 Lahore 1465) and Rao Inayat Ali v. Diwan Ali (PLJ 1999 Lahore 1179).
3. The learned counsel for respondent No. 1 contends that the appellant had, agreed for the decision by the referee and was thus bound by the same. He has supported the judgment of the learned Trial Court and has cited Syed Hashmat Ali v. Qamar Begum and 6 others (1999 Law Notes (S.C.) 946), to support his contention.
4. We have perused the record with the assistance of the learned counsel for the parties and find that while the trial of the suit was in progress the parties opted for a mode of resolving the controversy and decision of the suit by appointing Ch. Muhammad Hussain as referee. The statement made by the parties on 24.9.1999 is as follows:- ((Urdu Text))
The above statement was signed by the parties in token of its correctness and acceptance. It shows that the decision of Ch. Muhammad Hussain had to be accepted by the parties and the suit was to be decided accordingly. He appeared in Court and made the following statement on 15.5.1999;- ((Urdu Text))
What he had produced before the Court in the envelope is as follows :- ((Urdu Text))
The learned Trial Court accordingly as mentioned above, decreed the suit in favour of respondent No. 1 and rejected the application of the appellant for revocation of the appointment of Ch. Muhammad Hussain.
5. The learned counsel for the appellant made reference to the judgments, mentioned above, to bring out the distinction between a referee and arbitrator and that, even if, the appointment of Ch. Muhammad Hussain be treated as referee, with the filing of the application by the appellant for revocation of his authority, his appointment came to an end and the Trial Court acted illegally in passing a decree on the basis of hi decision/statement. In Rao Inayat Ali's case {supra) relying upon Sher Zaman Khan v. Noor Zaman Khan and another (PLD 1977 Lahore 672), it was observed that a party could revoke the appointment of a referee before his statement. That was a case in which the entire evidence had already been recorded and the matter could be decided on merits instead of the decision by the referee. That was one of the circumstances which prevailed in that matter. We, however, find the latest trend of the Supreme Court attaching much importance to such a mode of decision being followed as was adopted in the present case. In Syed Hashmat Ali's case {supra) it was noticed by their Lordships "That the petitioner while appearing as PW-3 had himself offered that if Muhammad Shahbaz Khan, brother-in-law of respondent No. 7 states on oath that the suit instituted by the petitioner was false, the suit should be dismissed. Muhammad Shahbaz Khan appeared in Court as DW-1 and stated that they knew the parties; he had seen the land; there did not exist any agreement of sale, oral or written between the parties Mansoor Ahmed Khan, respondent No. 7 had never made agreement, oral or written with regard to the sale of the land and that the suit was false. After such a statement, obviously the petitioner could not insist to claim that his suit was genuine and he was entitled to any relief."
In Nazir Ahmed and another v. Muhammad Din and another (PLJ 2000 SC 513) a joint statement had been made by the parties for referring the case to one Din Muhammad for his decision and the matter was decided as per decision/statement of Din Muhammad by the Court which judgment had been affirmed in appeal and revision and the leave was granted by their Lordships to consider:- "That even though he was described as referee the appointment of Din Muhammad was in fact that of an arbitrator for he was required to give a 'faisla'. The Trial Court asked him specifically to give his 'faisla' and then proceeded to record its judgment in accordance therewith. His 'faisla' was thus an 'award' and the parties should have been given an opportunity to file objections thereto in accordance with the provisions of the Arbitration Act."
The contention was repelled finally by their Lordships that there was no "need to go into the academic question as to whether Din Muhammad acted as arbitrator or referee". It was noted that "the appellant is estopped to challenge the effectiveness and binding nature of the statement of Din Muhammad" for the reason that "he had been appointed with his own free consent" whose statement was not challenged before the Court. Keeping in view the conduct of the appellant, it was observed that "he could not be allowed to raise any objection to the decision given by Din Muhammad" which will amount to "placing premium on blowing hot and cold in one breath if the appellant was allowed to take shelter under certain legal technicalities which have always been considered to create no hurdle in the way of substantial justice". This is the expression of the recent trend in the approach by the apex Court in matters of this nature.
6. In the present case, undeniably, the appellant did offer and agreed for the appointment of Ch. Muhammad Hussain as referee for 'faisla' on oath before the Court. Although he had made an application for the revocation of his authority on the allegation of partisanship yet when Ch. Muhammad Hussain made a statement before the Court in his presence on 15.5.1999, he was not examined or questioned by him. He should stand by his commitment, honour his own statement made on oath and accept the decision gracefully.
7. In view of the above, we find no merit in this appeal which is dismissed accordingly.