' By this single order, I propose to decide F.A.O. Nos. 18 of 1996, 19 of 1996. 20 01 1996 and 21 of 1996. As identical questions of law and facts are involved in the same.
2. The facts succinctly stated that the Federal Government Employees Housing Foundation/respondent floated a scheme to construct 1791 housing units for its members under an ownership scheme at Islamabad. The appellants were pre-qualified for submission of tender documents for the construction of the above said project. The appellants were awarded the contract for building the said housing units. Allegedly, the appellants started the construction work at the site but the respondent changed the designs frequently. Resultantly, the appellants suffered huge financial loss. The respondent stopped the payment of running bills and tried to take the possession of the site forcibly. The appellants filed civil suits in the Court of Civil Judge, Islamabad.
The matter was referred to the Arbitrator. The Arbitrator entered the reference but could not make his award within the prescribed period of four months in para.3 of the 1st Schedule to the Arbitration Act. The Arbitrator applied to the Court for extension of the period and the learned Civil Judge, Islamabad by an order, dated 9-1-1996 extended the time for making award. Through this appeal, the order, dated 9-1-1996 passed by learned Senior Civil Judge extending the time for making the award is assailed.
3. The learned counsel for the appellants contended that the learned Senior Civil Judge could not extend the time for making the award without hearing the appellants, the same being passed behind the back of the appellants, was void.
4. Conversely, learned counsel for the respondent raised a preliminary objection about the maintainability of the appeals. He further submitted that the learned trial Court had the jurisdiction to extend the time and he in extending time committed no illegality. Reliance was placed on Shiv Omkar Maheshwari v. Bansidhar Jagannath AIR 1956 Bout.
459.
5. Section 39 of the Arbitration Act reads as under:-- "39. Appealable orders.--- (1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorized by law to hear appeals from original decrees of the Court passing- the order- ' An order---
(i) Superseding an arbitration;
(ii) On an award stated in the form of a special case;
(iii) Modifying or correcting an award;
(iv) Filing or refusing to file an Arbitration Agreement;
(v) Staying or refusing to stay legal proceedings where there is an Arbitration agreement.
(vi) Setting aside or refusing to set aside an award; ' Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court."
' The contention of the learned counsel for the respondent that this appeal is not maintainable is not devoid of force. The said section clearly enjoins that an appeal shall lie only from order mentioned in section 39 of Arbitration Act, 1940, "and from no others". See WAPDA and another v.
Messrs Khanzada M. Abdul Haque Khan Khattak & Co. PLD 1990 SC 359. The words "and from no others" are significant. Under the present section no appeal shall lie from an order of the nature which is not included in the clauses (i) to (vi). The order of the trial Court extending the time, in my opinion, does not fall in any of the clauses mentioned therein. In the case AIR 1956 Born. 459 (supra), it was held as under:-- "the contention that extension of time should not have been allowed by the learned Judge cannot, in our opinion, be made by the appellant because under section 39, Arbitration Act, an order passed by the trial Judge extending time is not appealable. Legislature has clearly contemplated that the question as to whether time should be extended should be left entirely to the discretion of the trial Judge and the order that the trial Judge may pass in the exercise of his discretion should be regarded as final."
' Specific provisions have been made for appeals against decrees or orders passed under the provisions of this Act. This leaves no doubt in my mind that the present appeals are not maintainable.
' Section 28 of the Arbitration Act vests the Court with power to extend the time for making of an award. The enlargement of time is in the discretion of the Court and has to be exercised after taking all the circumstances into consideration. The language of section 28(1) is very wide and confers absolute discretion on the Court to enlarge the time limit for making the award at any time However, the power is to be exercised judicially and not in an arbitrary manner and on consideration of all the circumstances of the case. See PLD 1966 Dacca 54, AIR 1957 Cal. 658 and 1985 SCM R 1975 where the time was extended even after the time for making the award had already expired. In the case in hand the Arbitrator (Secretary, Housing and Works) vide his letter, dated 13-12-1995 prayed for extention of time up to 31-1-1996 for making the award on the ground that the order, dated 13-11-1995 of the trial Court inadvertently mentioned paragraph 44 which was a typographical mistake and correction was sought by making the application. It was further stated that he being pre-occupied in governmental affairs was unable to finalise the award. In these circumstances, the power was exercised judicially by the learned trial Court and I find no flaw in it.
' As far as notice to the appellants is concerned, they were the plaintiffs/applicants before the trial Court and they were supposed to be present on all the dates as such question of notice to them did not arise. Admittedly, the award has been filed in the Court. Learned counsel for the appellants raised objections on the award and also led evidence. The objection being taken before this Court can be raised before the learned trial Court.
5. For what has been stated above, these appeals have no merit and are dismissed with no order as to costs.