' An order passed by an Arbitration Council on 6-3-1966 allowing past maintenance to M.o. Hajran (respondent No, 2) at the rate of Rs, 50 p.m. Total Rs, 2,100 affirmed in revisional order dated 1-6- 1966, is under challenge in this writ petition filed by Mukhtar Ahmed, the husband of respondent No, 2, on the grounds : firstly, that the impugned orders contravene the provisions of the Soldier's Litigation Act, 19251 and secondly, that the petitioner was not afforded sufficient opportunity of hearing.
2. According to the facts stated by the learned counsel for the petitioner, the petitioner was a Soldier in Pakistan Army (stationed at Multan) when, in December 1965, he divorced his wife (respondent No, 2). It is further alleged by him that through an antedated application (purported to have been filed on 1-12-1965), respondent No, 2 moved the Union Council under Muslim Family Laws Ordinance, 1961 for grant of maintenance. Notice was issued to the petitioner who nominated Ch. Taj Muhammad as his arbitrator on the Arbitration Council. On 27-2-1966, Ch. Taj Muhammad withdrew from arbitration on the ground that the petitioner being a soldier could not be proceeded against in Arbitration Council and that he was unable in these circumstances to continue as arbitrator. He requested the Council to rend information to the petitioner with regard to his withdrawal as his arbitrator on the Arbitration Council. A registered notice purported to be dated 28.24956, but according to the learned counsel posted on 1-3-1966, was sent to the petitioner in this behalf. He received it on 4-3-1966 and promptly made an application for leave so that he might attend the proceedings on 6-3-1966 to pursue the matter before the Arbitration Council but Le was refused leave by Ws Officer Commanding. Proof in this behalf has been placed on this file in the form of a certificate (Annex. 'C-I') which reads : "Certified that No, 6257928-NK Mukhtar Ahmed applied for leave from 4th March 1966 to 6th March 1966 but could not be spared due to exigencies of service." The Arbitration Council, waiting for a formal reply from the petitioner, on 6-3-1966 passed an ex parte five line order allowing past maintenance to respondent No, 2 I noted above.
The petitioner having failed before the Collector in revisional proceedings has filed this writ petition.
3. There is prima facts force in the argument of the learned counsel that the petitioner was not afforded sufficient opportunity of hearing by the Arbitration Council. Learned counsel fur the respondent however, has vehemently contended that any vacancy on Arbitration Council would not adversely affect the orders passed by the Council nor would render them into nullity; and despite the fact that the petitioner was, in the above circumstances, unable to nominate an arbitrator on his behalf, the order passed by the Arbitration Council can be given effect to. I do not agree with him. It is not a case only of absence of an arbitrator. The Arbitration Council having acknowledged the withdrawal of Ch. Taj Muhammad as nominee of the petitioner proceeded on the assumption that a fresh notice was necessary to be served on the petitioner before they could proceed any further. The question arises whether Arbitration Council could have proceeded from that stage onward without satisfying itself as to whether the petitioner has had sufficient opportunity of either appearing before them or nominating another arbitrator on his behalf. No written statement has been filed to controvert the facts stated in the writ petition. Obviously, due to exigencies of service, the petitioner was not allowed leave nor, as the relevant dates show, was in a position to appear Lefore the Arbitration Council to put forth his case in opposition, to the application made by respondent No,
2. The order passed by the Arbitration Council is itself sketchy one. There is no discussion of any question with regard to liability of the petitioner. In my view, keeping all the circumstances of the case in view, he was not afforded sufficient opportunity of showing cause against the application made by his wife before the Arbitration Council. For that reason, the order passed by the Council is illegal and without lawful authority and of no legal effect.
4. I have looked at this case from another angle &sot namely, as to whether the defect by the Arbitration Council stood cured by proper consideration of the case by the revisional authority. The revisional authority has not dealt with the question of non-appearance of the petitioner before the Arbitration Council, in a proper manner. No evidence was referred to nor the other possible objections to the order of the Arbitration Council were noticed. The defect in the order of the Arbitration Council in this case therefore would affect the revisional order and thus any superstructure built thereupon would continue to suffer from same infirmity. I, therefore, accept this petition and declare both the impugned orders as illegal and without lawful authority but there shall be no order as to costs.
5. In view of the decision on the second contention raised by the learned counsel, it is not necessary to give a finding on the question whether or not the Arbitration Council is a Court as defined in the Soldiers Litigation Act and/or whether the same was applicable to the proceedings before it.
6. It is explained that the fact that the impugned orders in this case are set aside does not mean that the respondent (wife) has absolutely no remedy left for recovering the alleged past arrears of maintenance. If other remedies are available to her, this order shall not be a bar to her pursuing those remedies. It has also to be noticed that the liability to pay Rs, 600 (six hundred) as past maintenance has been admitted by the learned counsel during the course of hearing of this writ petition. 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.