This revision petition is directed against the judgment dated 25-7-1991 passed by the learned Additional District Judge, Khushab affirming the judgment/decree of the learned trial Court dated 2-11-1987.
2. The facts giving rise to this petition are that respondents 1 to 4/plaintiffs instituted a suit on 5-1- 1980 for declaration to the effect that the plaintiffs/respondents 1 to 4 were the owners of 35/72 share in Khata No,335/178 of the suit land measuring 2275 Kanal and 2 Marlas (detail of which is given in the head note of the plaint) and the petitioners/defendants had no concern with it and that the award and the arbitration decree dated 20-7-1978- regarding 1875 Kanals was fictitious, collusive, based on fraud and ineffective on the rights of the plaintiffs and the respondents 1 to 4.
The Mutation No,3452 was also illegal. fictitious and without notice to the plaintiffs. By way of consequential relief it was prayed that defendants be restrained permanently from interfering in the possession to the extent of their 35/72 share in suit land. The suit was resisted stating that Usman (the predecessor-in-interest of the parties) had completed the gift. He himself appeared before the Court and got the decree passed.
3. Out of the pleadings of the parties. the following issues were framed:-
(1) Whether the plaint and Vakalatnama do not bear the thumb-impression of the plaintiff and those appearing thereon are fictitious? If so, its effect? OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction? If so, its effect? OPD
(4) Whether the plaintiffs have no cause of action to bring this suit? OPD
(5) Whether the defendants are entitled to special costs? If so, to what extent?
(6) Whether the pedigree-table given in para No,(I) of the plaint is correct? OPP
(7) Whether Usman deceased gifted the suit land to the defendants Nos,1 and 2 during his lifetime?
OPD
(8) For non-proof of issue No,7 whether the arbitration agreement award and the decree dated 20- 7-1978 all are outcome of collusion and-fraud?
(9) Whether the impugned gift was made under pressure of the sense of the imminence of death i,e,, during marz-ul-maut? OPP
(10) Whether the plaintiffs are entitled to inheritance from the estate left by Usman deceased? If so, what would be their share?
(11) Relief.
The learned trial Court decreed the suit on 2-11-1987. The appeal before the learned. Additional District Judge, Khushab failed on 25-7-1991.
4. Learned counsel for the petitioners at the very out set contended that the suit was not maintainable as the award and the decree passed could be challenged under the Arbitration Act only and a separate suit was not competent. He urged that the Courts below had no jurisdiction to set aside the award and the decree dated 20-7-1978 passed on it.
5. The learned counsel for the respondents Nos,5, 6, 9 and 10 conceded the arguments of the learned counsel for the petitioners, however, the learned counsel for the remaining respondents submitted that his point was not raised by the Courts below as such cannot be raised at this stage.
6. The setting aside of the award and decree passed on it is a matter which goes to the root of the case and pertains to the jurisdiction of the Courts below. In this view of the matter I allow the learned counsel for the petitioner to raise this point. Under section 30 of the Arbitration Act, 1940 the award shall not be set aside except on one or more of the reasons stated therein. Section 30 of the said Act reads as under:- "
30. Grounds for setting aside award.---An award shall not be set aside except on one or more of the following grounds, namely:-- (a)that an arbitrator or umpire has misconducted himself or the proceedings; (b)that an award has been made after the issue of an order by the Court superseding the arbitrator or after arbitrator proceedings have become invalid under section 35;
(c) that an award has been improperly procured or is otherwise invalid."
Section 32 reads as under:--
32. Bar to suit contesting arbitration agreement or award.--- Notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for decision upon the existence, effect of validity of an arbitration agreement or award nor shall any arbitration agreement or award be set aside, amended, modified or in way affected otherwise than as provided in this Act."
Section 33 reads as under:- "
33. Arbitration agreement or award to be contested by application.--Any , party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits: Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit: Provided further that no application challenging the existence or validity of an award, or for having its effect diminished, shall be entertained by the Court unless the applicant has deposited in the Court the amount which he is required to pay under the award or has furnished security to the satisfaction of the Court for the payment of such sum or the fulfilment of any other obligation by him under the award."
The bare reading of the sections show that no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award nor shall the same be set aside, amended, modified otherwise than as provided in the Arbitration Act, 1940. In the instant case arbitration agreement the award and the decree passed on it dated 20-7-1978 have been challenged on the ground of fraud and misrepresentation. In the case of Government of Sindh and another v. Ch. Fazal Muhammad and another: (PLD 1991 Supreme Court 197) the Honourable Supreme Court observed as under:- "If the award was obtained by fraud or misrepresentation it was open to the appellants to challenge the same either by an application under section 30 and or section 33 of the Arbitration Act. Even a suit to challenge the arbitration agreement or the award was not maintainable in view of the provisions of section 32 of the Arbitration Act. Nor could an arbitration agreement or award be set aside, amended or modified or in any way affected except as provided in the Arbitration Act."
In the case of Muhammad Yasin v. Sh. Hanif Ahmed and 4 others (1993 SCMR 437) while considering the effect of the aforementioned case it was laid down as under:-- "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 Zafarul Islam v. Mrs. Azra Malik (PLD 1991 Karachi 377) it was held that:- "An award could be challenged under sections 30 and 33 of Arbitration Act, 1940 among others on the ground of fraud, misrepresentation and want of jurisdiction which grounds could not be reagitated after passing of the decree, events stemming in between the dates of award and its becoming rule of Court would furnish fresh grounds of fraud, misrepresentation and want of jurisdiction and in that case application under section 12(2), C.P.C. would be competent. Apart from this, there may arise a situation where a defendant may be prevented from participating in the proceedings before the Arbitrator or the Court."
In the present case the award was made a rule of Court and a decree followed on it. The award could be challenged under sections 30 and 33 of the Arbitration Act, 1940. The decree pronounced on it could be challenged by an application under section 12(2), C.P.C. It is not clear in the case in hand at what stage the fraud was committed before or after the decree. The finding of the learned trial Court on Issue No,7 is that no agreement or arbitration was made by Usman and the proceedings of arbitration were taken in his absence and this finding was upheld by the appellate Court. The learned Courts had no jurisdiction to give the finding in a suit for declaration. In the particular circumstances of the case I have no option but to allow this revision petition. The impugned judgment is set aside and the case is remanded to the learned Additional District Judge to determine all these questions and to see whether this part of the suit can be separated, from the rest and whether the suit can proceed in the absence of plea for setting aside the arbitration award and the decree passed on it. In either case the learned Additional District Judge shall proceed in accordance with law after providing opportunity of hearing to both the parties. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.