' The petitioner filed an application against Malik Abdul - Rauf (deceased), predecessor-in-interest of the present respondents. The application prayed that an Award passed on 16-12-1981 pursuant to an arbitration agreement dated :15-12-1981 be made rule of the Court. One Mr. Saleem Naz, Advocate conceding the application stated that he is the Counsel of the said Malik Abdul Rauf (hereinafter to be referred as the respondent). On, 6-3-1982, the respondents filed an application under section 12(2), C.P.C. Stating that a fraud had been played upon him; that he had never sold his land to the petitioner; that he had never entered into any arbitration agreement and was not a party to, any proceedings leading to the award, dated 16-12-2000 and that he had never appointed Mr. Saleem Naz, Advocate who conceded the application. The application was resisted.
Issues were framed. Evidence of the parties was recorded. The learned trial Court allowed the application vide an order dated 21-7-1983. The petitioner filed a first appeal which was allowed by an Additional District Judge, Ithushab on 8-2-1984. Against the said -judgment, Civil Revision No.303 of 1984 was. Filed which was allowed by this Court on 30-10-2001. It was found that the said learned Additional District Judge was not possessed of pecuniary jurisdiction to entertain and decide the said matter which even otherwise also was not competent. The case was sent back to the learned District Judge, Khushab with directions to convert the appeal into a revision and to return the same to the petitioner. The appeal was accordingly converted into revision and returned to the petitioner on 22-2-2001. The said civil revision has now been presented in this Court.
2. The learned Counsel contends that the impugned order passed by the learned trial Court is wholly without jurisdiction inasmuch as section 12(2), C.P.C. Is not applicable in the matter of Arbitration proceedings. The learned Counsel relies upon the case of Government of Sindh and another v. Ch. Fazal Muhammad and another (PLD 1991 SC 197). Further contends that the evidence on record has bee. I misread.
3. I have gone through the copies of the record appended with this civil revision, with the assistance of the learned Counsel. 'I have already referred to the contents of the application above.
In reply the petitioner positively asserted that he had paid the price of the suit land to the respondent and thereafter the arbitration agreement was executed and that award was lawfully made and that respondent had himself made the statement in the Court. Qutab-ud-Din the said Arbitrator also contested the application. It is rather strange that this Arbitrator has vehemently urged in his written reply that respondent had himself appeared in the Court and made a statement, signed it, in the presence of his Counsel while conceding the said application seeking the filing of the award and making the same rule of Court. The Arbitrator has further vehemently urged that respondent had transferred the plot of his own freewill. A copy of' the arbitration agreement is appended as Exh.R./1. It states that there is some dispute pertaining to the sale agreement of the plot to the respondent between the parties and Qutab-ud-Din has been appointed as an Arbitrator to resolve the same. It will be noted that this agreement does not at all disclose as to what is the dispute which has arisen and which is sought to be referred to the Arbitrator. Needless to state that existence of a substantial dispute is condition precedent for any valid arbitration proceedings. The award made on the very next date on 16-12-1981 is Exh.R/2. Now the Arbitrator states that he has heard the parties and has even recorded their evidence; that it has been admitted that the respondent had agreed to sell the plot to the petitioners for Rs,1,00,000; that the entire amount was paid and possession was delivered; that at the time of the decree for registration of the document, respondent started claiming Rs,20,000 more which claim he has failed to prove and, therefore, it is declared that the petitioner is owner in possession of the said land having paid the entire price of Rs,1,00,000 to the respondent. I do not feel any hesitation in stating that this documents smacks of the mala fides and the fraud inherent in it. It is no-body's case that some decree for specific performance was obtained and that some dispute arose when the sale-deed was to be executed and registered. It is also unbelievable that the parties admitted that without anything in writing the plot was sold and delivered receipt of the entire sale price of Rs,1,00,000 was admitted and yet they needed this elaborate arrangement to resolve the dispute of Rs,20,000.
4. This is not all. The evidence led by the petitioner himself reveals as to how the matters were dealt with by two Advocates of Sargodha who are running a joint Chamber right from the beginning to end. Now R.W.1 is Mushtaq Ahmed and he is the marginal witness of the arbitration agreement, Exh.R./1. He states that since the year 1978 he is the Clerk to Ch. Fazal Hussain, Advocate. Now the learned Counsel admits at the Bar that this Ch. Fazal Hussain, Advocate was the one who represented the petitioner during the course of the application filed in terms of section 14 read with section 17 of the Arbitration Act, 1940. Fateh Muhammad is R.W.2. He is other marginal ,witness of Exh.R./1. Now he is the Clerk of Saleem Naz who statedly represented the respondent during the said proceedings. The said Saleem Naz entered the witness-box as R.W.4. A bare reading of the statement of this witness would show how he and his partner Ch. Fazal Hussain, Advocate has been manoeuvring the whole show. The documents were fabricated by these two gentlemen. The so-called Arbitrator was provided by them.
5. Qutab-ud-Din appearing as R.W.3 admits that he has in all his cases the said Ch. Fazal Hussain, Advocate as his Counsel. He admits that he recorded the award in the office of the said Advocate but says that he does not know as to how he came to end up in the office of the said Advocate writing the award. He then praises the said two gentlemen of the Bar by stating that in several such matters of arbitration cases Messrs Ch. .Fazal Hussain and Saleem Naz represented the parties and that Mr. Fazal Hussain, Advocate is very much present outside the Court in this connection. The petitioner has appeared as R.W.5. He says that 6/7 months after the payment of the price and according to him only respondent and the witness were present when he paid the price to the respondent, he started demanding Rs,20,000 and the arbitration agreement was entered into. I have already stated above that the arbitration agreement does not refer to any dispute at all. He says that he did not even take receipt from the respondent. According to him the respondent never denied the receipt of the said amount. He does not remember as to at what point of time respondent started demanding Rs,20,000 from him. He states that the award was written in the office of Saleem Naz, Advocate. He does not remember as to who purchased the stamp paper for the arbitration agreement or for the award. He says that he had brought Qutab-udDin to the Courts where the award was written and this was done on the day following the execution of the ,arbitration agreement. He states that Qutab-ud-Din had not talked to him at all in the matter on the said day. Now Qutab-ud-Din states that in the first instance he inspected the plot at 11-00 a.m.
On 15-12-1981 then he went to the Housing Office to check up the file and the plan. Then he again went to the plot and then he heard the parties on 5-00 p.m. At his house. He is completely falsified by the petitioner himself who says that Qutab-udDin did not have any talk with him in the matter on 15-12-1981.
6. Having thus examined the evidence on record and also of the findings recorded by the learned trial Court that the plot is located in the heart of Khushab as also the findings that there is no evidence that the plot was ever sold or agreed to be sold by the respondent to the petitioner, I do not find any error of law or fact in the impugned order of the learned trial Court whereby the said fraudulent proceedings have been set aside.
7. Coming to the said first contention of the learned Counsel, I find that the same is based on misconstruction of the said judgment being relied upon by the learned Counsel. What happened in that case was that the application under section 12(2), C.P.C. Was filed by a party to the case who had, in fact, filed objections under section 30 of the Arbitration Act, 1940 against the award. These objections were duly heard and awards was made rule of Court and a decree was passed. An appeal was filed which was ultimately dismissed for non-prosecution. After about six months the said application under section 12(2), C.P.C. Was filed their Lordships did not hold that section 12(2), C.P.C. In terms is not applicable to the arbitration proceedings. What was held was that despite the fact that the said applicant had full opportunity to lay facts constituting fraud before the Court during the course of objection, this was not done and neither were the said facts stated in the course of appeal which was dismissed for non-prosecution. It was in the said circumstances that the dismissal of the application under section 12(2), C.P.C. Was found to be in order.
8. The said judgment in the case of Government of Sindh and another v. Ch. Fazal Muhammad and another (PLD 1991 SC 197) came up for consideration in the case of Sh. Hanif Muhammad Yasin v.
Sh. Hanif Ahmed and 4 others (1993 SCM R 437). After examining the said judgment their Lordships did come to the said conclusion as referred to by me above and it was held that section 12(2), C.P.C. Does apply to Arbitration proceedings and it was observed that in the said judgment the question itself i,e, as to whether section 12(2), C.P.C. Can be invoked to challenge the decree passed on the basis of award was not considered and their Lordships held that upon a reading of the provisions of Arbitration Act, 1940 applicability of section 12(2), C.P.C. Does not stand excluded and it was held that an application under section 12(2),,C.P.C. Was maintainable. The said objection of the learned Counsel accordingly is rejected.
9. As a result of the above discussion, this civil revision is dismissed in limine.