' This Civil Revision is directed against the judgment and decree, dated 2-6-1984 passed by the learned District Judge, Rahimyar Khan, by virtue of which, the appeal of the respondents was accepted and the judgment and decree of the learned trial Court dated 6-10-1983 was set aside.
2. The brief facts giving rise to these proceedings are that the petitioner was a plaintiff in a suit for declaration with regard to title in respect of agricultural land fully described in the plaint. During the pendency of the suit, an application under section 21 of the Arbitration Act was filed by the parties for reference of the dispute to the arbitration of the sole arbitrator of Sardar Mushtaq Ahmad Khan.
The said reference was made after the submission of the written statement and framing of the issues but before the recording of evidence in the suit.
3. The abovementioned arbitrator entered upon a reference for the purpose of resolving the dispute between the parties. It appears from the record that the said arbitrator conducted the arbitration proceedings before whom all the parties submitted to his jurisdiction and during the course of the entire proceedings before the arbitrator, none of the parties raised any objection to the conduct of the arbitrator or the arbitration proceedings.
4. The entire record has been perused with the assistance of the learned counsel for the parties. A perusal of the arbitration proceedings would show that the arbitrator recorded the statements of all the witnesses which the parties were desirous of producing. In this connection, statements of Malik Peer Bakhsh, Mehr Din, Muhammad Ramzan, Yar Muhammad, Atta Muhammad, Jind Wadda, Sajid Mahmood, Khalid Mahmood, Haji Elahi Bakhsh, Raees Barkat Ullah, Raees Siraj Din and Muhammad Aslam were recorded. On the other hand, statements of Raees Inam Ullah, Raees Aarib and Ghulam Mustafa Khan were recorded. It appears that besides the statements of the aforesaid, affidavits were submitted by Mst. Maryam Bibi aged 85 years widow of Raees Allah Bakhsh, Mst.
Ghulam Sakina daughter of Raees Allah Bakhsh and Mst. Zainab Bibi daughter of Raees Allah Bakhsh before the arbitrator. Upon the basis of the said arbitration proceedings, the arbitrator submitted his Award in the Court. A perusal of the arbitration proceedings would show that almost all the witnesses who were produced including the makers of affidavits were closely related to the parties who had genuine reason to have knowledge about the matter in dispute.
5. According to the arbitrator's Award based upon his arbitration proceedings, it was held that the claim of the plaintiff Races Chiragh Din is incorrect and baseless and that the inheritance of his deceased father has been validly sanctioned. It was also stated in the Award that the land in question was self-acquired by Muqarrab and that the plaintiff in the suit had no concern with the same. He further held that the brother of Raees Chiragh Din namely Muqarrab Din had purchased the land in dispute in the year, 1966 in the presence of their father deceased Raees Allah Bakhsh and their father in his lifetime did not raise any objection upon this purchase.
6. Aggrieved of the said Award of the arbitrator, the petitioner/plaintiff filed objections under section 30 of the Arbitration Act. The learned Civil Court seized of the matter framed the following issue on 2-3-1983:--
(1) Whether the award is liable to be set aside on the grounds mentioned in the application?
(2) Relief.
7. The petitioner/plaintiff appeared as his own witness while the respondent produced Raees Elahi Bakhsh, Races Sirajud-Din and Khalid Mahmood as witnesses.
The main objections raised by the petitioner in the Civil Court were as under:--
(i) that the evidence of his witnesses was not recorded;
(ii) that he had not been given opportunity to cross-examine the witnesses produced before the arbitrator;
(iii) that the arbitrator himself summoned the witnesses without his consent and recorded the evidence;
(iv) that the arbitrator received affidavits of three ladies but the ladies never appeared before the arbitrator.
8. Upon consideration of the evidence produced before him and going through the arbitration proceedings and the award of the arbitrator, the learned trial Court vide order dated 6-10-1983 set aside the Award without making any further order as to whether the original suit shall proceed or not.
9. Aggrieved of the said order, dated 6-10-1983, an appeal was preferred by the respondents which appeal was accepted vide judgment and decree dated 2-6-1984 passed by the learned District Judge, Rahimyar Khan. While accepting the appeal, the learned District Judge placed reliance upon the case of Kh. Muhammad Usman v. Mst. Ghulam Fatima and others PLD 1967 Azad J&K 14 that the arbitrator is not bound by the technicalities of law of evidence. He also relied upon the case of Government of Pakistan, Ministry of Industries v. Messrs National Agencies, Karachi PLD 1978 Karachi'827 that the arbitrator is the sole Judge on facts and law unless some mistake is appareht on the face of the record. To similar effect, the learned District Judge relied Upon the case of Safia Bai and others v. Karachi Cooperative Housing Societies Union Limited PLD 1967 Karachi 598. In the end, he came to the conclusion that the procedure adopted by the arbitrator was just and equitable and that there was no mistake apparent on the face of the record by virtue of which it could be concluded that the arbitrator has misconducted himself or the proceedings.
10. The learned counsel for the petitioner has raised the same objections before this Court i,e, (i) that the arbitrator has not recorded the statements of their witnesses, (ii) that he had not given opportunity of cross-examining the witnesses, (iii) the affidavits of three ladies were produced before the arbitrator but the ladies never appeared before the arbitrator, and (iv) and the arbitrator himself summoned the witnesses without the consent of the petitioner.
11. Upon the consideration of the submissions of the learned counsel for the petitioner, the objections raised are devoid of force. It may be stated at the very outset that initially the suit was filed by the petitioner and after the suit had proceeded up to the trial stage, the petitioner along with the respondents agreed to refer the matter to a sole arbitrator who was even named in the application. The arbitrator recorded the evidence of all relevant witnesses who either belonged to or had nexus with the family of the parties. The affidavits that are referred to are in fact the affidavits of the petitioners' own mother Mst. Maryam Bibi and his own sisters Mst. Ghulam Sakina and Mst. Zainab Bibi. The other witnesses were also closely related to the parties. At the time of the arbitration proceedings no objection whatsoever was raised to the manner of the conduct of the arbitration proceedings. A perusal of the arbitration proceedings themselves show that the same were conducted in a just and equitable manner without any outside influence. In fact none has been shown from the record.
12. Viewed in this perspective, it may be profitable to rely upon the principle that law leans in favour of upholding the Award and not vitiating the same. Reference is made to the cases of Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another 1984 SCMR 597; Messrs Alpha Insurance Co.
Limited v. Messrs Ch. Nizam Din & Sons and another 2001 CLC 289 and Abdul Rauf v. Muhammad Saeed Akhtar PLD 1985 Karachi 145.
13.It may also be profitable to note that while examining the legality of an Award, a Court does not and should not act as a Court of appeal. In order to discover error or infirmity in the Award, the Court while hearing the objections of the Award cannot undertake reappraisal of evidence recorded by the arbitrator. Reference is made to the case of Zaka Ullah Khan v. Government of Pakistan through Secretary, Buildings and Roads Department PLD 1998 Lahore 132 and Messrs Alpha Insurance Co. Limited's case 2001 CLC 289 (supra).
14.As a result of the aforesaid discussion, the petitioner has not been able to point out any jurisdictional defect or any legal infirmity in the judgment of the learned Additional District Judge, dated 2-6-1984 which could warrant interference in this Civil Revision. Resultantly, the Civil Revision fails and is dismissed. The parties to bear their own costs.