' On 4-6-1979 the respondent filed a suit against the petitioners. In the plaint it was stated that the respondent is the owner in possession of the suit land; that the petitioners fabricated an arbitration agreement, dated 5-2-1975 and an award was so fabricated on the basis of said -agreement on 8-2-1975, purporting to state that the respondent had sold his suit land to the petitioners for a consideration of Rs,4,00,000; that on the basis of the said two forged documents a decree was obtained in favour of the petitioners. With these averments a declaration was sought that the respondent is an owner in, possession of the suit land and that the agreement for arbitration, dated 5-2-1975 is forged and fabricated and so is the case with the award, dated 8-2-1975 and that decree, dated 2-5-1975 has also been obtained by practising fraud on the Court and that the same be set aside. In their written statement the petitioners took the objection that the suit is barred by section 32 of the Arbitration Act, 1940; that the respondent with free consent executed agreement, dated 5-2-1975; that in his presence the Arbitrator announced his award; that he filed a consent statement on 22-4-1975 in Civil Courts, Sargodha where he appointed an Advocate and in the presence of his counsel he made a statement on 2-5-1975 that the land has been sold through the award; that thereafter a clerical error was found in the decree which was got corrected by the respondent himself. It appears that the petitioners were proceeded against ex parte and the suit was decreed on 17-5-1987. However, the decree was set aside in appeal on 1-8-1988.
Thereafter, evidence of the parties was recorded on the issues framed by the learned trial Court.
The suit was decreed on 21-1-1989 while a first appeal filed by the petitioners was dismissed by a learned Additional District Judge, Sargodha on 11-7-1989.
2. Learned counsel for the petitioners contends that in the presence of a certified copy of agreement of arbitration, dated 5-2-1975, the learned counsel could not have called upon his clients to prove its execution by the respondent. Further contends that the suit in any case was barred by section 32 of the Arbitration Act, 1940. Relies On the case of 'Government of Sindh and another v. Ch. Fazal Muhammad and d another (PLD 1991 SC 197), Messrs Combined Enterprises v.
Water and Power Development Authority, Lahore (PLD 1988 SC 39), Messrs Awan Industries Ltd. v.
The Executive Engineer, Lined Channel Division and another (1992 CMR 65) and Messrs Badri Narayan Agarwala v. Messrs Pak Jute Balers Ltd. PLD 1970 SC 43. Learned counsel for the 'respondent, on the other hand, contends that it was the case of his client that the decree obtained on the basis of the award has been obtained by practising fraud and misrepresentation and as such the only remedy available at the relevant time was the present suit. Relies on the case of Muhammad Yasin v. Sh. Hanif Ahmed and 4 others (1993 SCM R 437). Further contends that his client had specifically denied the execution of the agreement of arbitration and having joined the arbitration proceedings or the proceedings of the Court and the petitioners had failed to prove the contrary.
3. I have gone through the copies of the record appended with this Civil Revision, with the assistance of the learned counsel for the parties. Copy of the alleged arbitration agreement is available on record as Exh. P.6. This is, dated 5-2-1975. Copy of the alleged award is Exh. P.7. It is dated 8-2-1975. Copy of the decree, dated 2-5-1975 is Exh.D.3. Exh.D.4 is the consenting reply, dated 22-4-1975 of the respondent. The respondent entered the witness-box as P.W.1 on 16-1-1989 and stated that he had not executed any arbitration agreement; that he had not received any amount; that he was neither summoned by any arbitrator nor he appeared before one; that he was not summoned by the Civil Court at Sargodha; that he had not appointed any counsel that he had not filed any reply; that he had not filed any application for amendment of the decree; that he is continuing in possession of the land. Nothing has been brought out in his cross-examination and no attempt was made to confront him with the documents, the execution whereof he had denied.
The only evidence in rebuttal comprises of statement of Rab Nawaz, petitioner as D.W.1 I may note here that onus of relevant Issue No,5 to prove the execution of the said agreement was upon the petitioners. In his cross-examination he states that the petitioners had arranged the amount of Rs,4,00,000 by selling ornaments and cattle; he does not remember as to whom the ornaments were sold. He states that the amount was paid in presence of Ch. Allah Dad s/o Wali Dad and Muhammad Hayat s/o Umar Hayat; that Allah Dad is alive who had executed the receipt for payment; he does not remember as to who scribed the agreement; that the witnesses to the agreement are Bashir and Sarfraz who are well and alive. Rather amazingly he proceeds to state that he had not filed any application in the Court for making the award rule of the Court. He states that Mr. Amir Abdullah Lati, Advocate, the alleged arbitrator is alive. Admits that the respondent is in possession of the land.
4. This is the entire evidence in support of the execution of the agreement or the other proceedings.
The witnesses to the agreement, are alive but have not been produced. The witnesses to the alleged payment are alive but no effort has been made to get their statements recorded in the witness-box. The receipt is not forthcoming. The arbitrator is alive and he has not been produced.
5. Coming to the said contention of the learned counsel, he says that since the agreement forms part of judicial record its certified copy is admissible as evidence of its due execution by the respondent. The argument is wholly fallacious. The execution of the document has been denied and in such a case Qanun-e-Shahadat Order, 1984 insists upon the proof of execution of the document which is not forthcoming in the present case.
6. The overall effect of the evidence on record is that there is no proof that the agreement was executed by the ,respondent; that he joined the arbitration proceedings; that he joined the Court proceedings. The result is that the decree is result of fraud and misrepresentation played by the respondent who claims benefit under the same and has rightly been set aside by the learned Courts below.
7. Coming to the said second contention of the learned counsel for the petitioners which of course he has very vehemently pressed. He relies on the letter of law as contained in section 32 of the Arbitration Act, 1940 read with section 33 hereof. The cases reported as Government of Sindh and another v. Ch. Fazal Muhammad and another (PLD 1991 SC 197) and Messrs Combined Enterprises v.
Water and Power Development Authority, Lahore (PLD 1988 SC 39) relied upon by the learned counsel for the petitioners do support his contention but only to the extent that an award or an arbitration agreement cannot be challenged otherwise than in accordance with section 32 read with section 33 of the said Act. However, in the present case the position is that the award had been made rule of the Court and a decree had followed thereupon. In similar circumstances the matter came up before the Supreme Court of Pakistan in the said case of Muhammad Yasin relied upon by the learned counsel for the respondent. The apex Court took due notice of the ratio of judgments relied upon by the learned counsel for the petitioners and following was observed at page 440 of the report:- "In both these judgments the question whether a decree passed on the basis of the award can be challenged by an application under section 12(2), C.P.C. Was not considered. Sections 30 and 33 refer to only awards and not decree passed on the basis of the award. Under the Arbitration Act there is no provision for challenging such decree on the ground that it has been obtained by misrepresentation and fraud. Therefore applicability of section 12(2), C.P.C. Has not been excluded.
In the present case the appellant had filed application under section 33 of the Act and section 12(2), C.P.C. It seems to be Composite application for determination of the effect of the agreement as provided by section 33 and challenging the decree on ground of fraud and misrepresentation.'
The application, therefore, should have been considered on merits instead of dismissing it on technical ground that no application under section 12(2) was maintainable. From the above discussion it is clear that in the facts and circumstances of the case application under both the provisions was maintainable."
' Respectfully following the said dictum of the Hon'ble Supreme Court of Pakistan I reject the said contention of the learned counsel and do hold that in the facts and circumstances of the present case since at the relevant time provisions of section 12(2), C.P.C. Had not come into force, the only remedy open to the respondent was the suit which he did file and has been thus decided by the learned Courts below. No other point has been urged. I do not find any case being made out for interference with the impugned judgments and decrees of the learned Courts below within the meaning of section 115, C.P.C. This Civil Revision is dismissed with costs throughout.