' These two Revision Petitions (Nos. 689 and 704 of 1976) have arisen out of the same case between the same parties. They have been argued together. This order will dispose of both of them.
2. The predecessor-in-interest of the petitioners, namely, Malik Khizar Hayat Tiwana allegedly transferred by way of sale a house together with about 25 kanals of its land to the petitioners (in C.
R. 689) who are his grandsons (son's sons). There arose some dispute between them. The matter was allegedly referred to arbitration of Sardar Ahmad Mohan as sole arbitrator. He is alleged to have given an award on 27-4-1974 in favour of the petitioners on the basis of an alleged agreement between the seller and the purchasers whereby the purchase was affirmed. This award was, on reference to the Court, made rule of the Court on 22-6-1974, again on the basis of agreement between the seller and the purchaser. It is stated that a decree also followed. It may be mentioned here that the seller himself had not appeared to signify his agreement. He was represented through an alleged attorney. A dispute having arisen between the heirs of Malik Khizar Hayat Tiwana, litigation started with regard to this property also. Proceedings were taken under section 145 of the Criminal Procedure Code with regard to a dispute qua possession of the house in question. However, on 12-5-76, the four respondents (in C. R. No, 689) who are the daughters of Malik Khizar Hayat Tiwana filed a declaratory suit challenging the aforementioned award and the decree on various grounds including fraud. On 20-5-1976 the petitioners also filed another suit under section 9 of the Specific Relief Act for the main purpose of seeking the implementation of the award/ decree through possession.
3. In the first mentioned suit, the petitioners moved an application on 14-6-76 for rejection of the plaint under Order VII, rule 11, C. P. C. On the ground that the suit was barred by law. Although the copy of the application and that of its reply have not been placed on record, learned counsel has explained that reliance was placed on the bar contained in section 32 of the Arbitration Act. The learned trial Judge dismissed the petitioners' application by order dated 30-6-76. By the same order, the application of the respondents (plaintiffs) for a temporary injunction against illegal eviction was dismissed on the ground that the filing of the suit by the present petitioners for obtaining possession indicated that they had no intention of taking law into their own hands. The learned Judge also rejected the alternative prayer of the respondents (plaintiffs) that in case the plaint was rejected under Order VII, rule 11, C. P. C. The same should be treated under section 30/33 of the Arbitration Act. The respondents (plaintiffs) filed an appeal against the order of their application for temporary injunction which was dismissed on 7-7-1976. Order of trial Court dated 30-6-76 has been brought under challenge in Civil Revision No, 689 by those defendants in the suit who claim to be beneficiaries under the award/decree, with the prayer that the plaint be rejected under Order VII, rule 11 ; while the plaintiffs have, in Civil Revision No, 704, brought under challenge the rejection of their prayer for temporary injunction.
4. Mr. Wasim Sajjad, learned counsel for the petitioners in C. R. 689, contended that section 32 of the Arbitration Act is a complete bar to the suit because, contrary to the provisions thereof, an arbitration award has been brought under challenge in the suit ; and because the decree has, strictly in accordance with law as contained in section 17, followed the award, the civil suit against such a decree is also barred. He has further contended that although fraud and other infirmities qua the award have been alleged in para. 4 of the plaint, nothing has been said with regard to the decree : therefore, even if there is no specific bar with regard to decree in section 32, there is nothing in the plaint to show that the same has been seriously brought under challenge. Lastly, he has contended that the plaintiffs base their claim as heirs of Malik Khizar Hayat Tiwana who being a party to the award and the decree, the present suit is otherwise barred on general principles. He has cited Messrs Badri Narayan Agarwala v. Messrs Pak Jute Balers Ltd. (I), Afaq Ahmad Ansari v.
Zamir Hasan Ansari and another (2) and Lala Panna Lal v. Mt. Rupo and others (3) to furnish general support to his contentions. Otherwise, he stated, there is no case-law on the points involved in this case.
5. Mr. Farooq Qureshi, learned counsel for the respondents in Civil Revision No, 689, has contended that there is sufficient attack in the plaint on both the award and the decree and the mere fact that while giving reasons for bringing the award in challenge in para. 4 of the plaint no separate reasons were advanced regarding decree, should not be construed as signifying a negative intention on the part of the plaintiffs not to bring the decree under challenge for the same reasons/grounds as have been mentioned in respect of the award. He has also relied on rule of liberal construction and interpretation of the pleadings, particularly from the Muffasil. He further contended that paras. 3 and 4 of the plaint have to be read together and indeed, according to him, even if the specific grounds mentioned in para. 4 would not have been included therein, the suit would be competent regarding both the award and the decree on the basis of the assertions made in para. 3 of the plaint, as reiterated in the prayer paragraph read with the heading part. He has also contended that Malik Khizar Hayat Tiwana was not a party to the award nor was be a party to the Court proceedings, therefore, the plaintiffs are not acting under or through him and looked at in this context, as Malik Khizar Hayat Tiwana was not a party to the alleged (1) PLD 1974 SC 43 (2) PLD 1955 Sind 282 (3) AIR 1945 Oudh 92 agreement/award/decree, therefore, they are not claiming any right under any party. Lastly, he contended that the plaintiffs having challenged the very transfer by sale, they are within their right also to prove that there was no sale and that the ceremony, if any, in that behalf was not enough to pass title to the alleged vendees. That being so, the suit, would be competent even on the basis of the plaintiffs' own claimed rights. Mr. Farook did not cite any case-law stating that there is none on the point involved.
6. I do not accept the general proposition that even if a decree is challenged on ground of fraud, the suit would be barred simply because the decree has been passed as a result of proceeding under the Arbitration Act. Fraud vitiates all proceedings and if proved, the decree would be rendered into nullity and thus, void. A civil suit in the Court of general jurisdiction would be competent. The mere fact that the decree purports to follow the' award would not attract the provisions of section 32 so as to bar the suit with regard to the decree as well. It is not without significance that the decree and/or other orders in the nature of decree passed under the Arbitration Act have not been included in section 32. Faced with this difficulty, Mr. Wasim Sajjad stressed the omission of certain grounds in the plaint to bring the decree under challenge. Para. 3 of the plaint reads as follows :- {{URDU TEXT}} ' It is obvious that both the award and the decree have been brought under challenge in the above part of the plaint on ground of fraud. Although in sub-paras. (0 to (VI) of para. 4 different grounds have been urged to attack the award, but in the purview of the said para. 4, which is the opening part of that para. ,4 it is specifically asserted that the agreement, the award and the decree of the Court on the basis of the award are void ineffective and thus liable to be annulled on the grounds which then followed (I to VI). Those grounds consist of several elements including fraud. It has also been asserted therein that Malik Khizar Hayat Tiwana was never a party to any agreement. In the heading part of the plaint which has been adopted in the prayer part, both the award and the decree have been brought under challenge. If the suit with regard to the decree is competent it cannot be said that the reference to the award in the context of the decree would be either irrelevant or otherwise barred. Thus, keeping in view the contents of the plaint, it cannot be held that the suit is barred by section 32 of the Arbitration Act. That being so, the plaint was not liable to be rejected under Order VII, rule 11 on the ground of any legal bar. None of the rulings cited at the bar, as admitted by the learned counsel himself, has direct bearing on the subject-matter in hand.
There is no need to discuss them. It is, therefore, held that the application of the petitioners (in C. R.
689) under Order VII, rule 11 was rightly rejected by the learned trial Judge. It is not necessary to go into the other arguments raised from the respondents' side because any expression thereon is likely to prejudice the case of the parties on merits. Revision Petition No, 689 of 1976 accordingly is dismissed.
7. The learned trial Judge, while dismissing the plaintiffs' application for temporary injunction, observed as follows :----
8. The result is that both the Revision Petitions (Nos. 689 and 704 of 1976) are dismissed. There shall be no order as to costs.