This judgment shall also dispose of Writ Petition No,624 of 1990 as the same question law and fact is involved in both the cases.
2. Respondent Choudhary Rehmat Shah Muhammad Commission Gents Ghala Mandi Chistian filed a suit against the petitioner Syed Zulfiqar Shah before Chairman Arbitration Board Market Committee Chishtian for the recovery of a sum of Rs,82,117.60. The contention raised in the plaint was that the petitioner/defendant had business dealings with the respondent/plaintiff. The respondent used to sell and purchase agricultural produce from the petitioner. According to the account's maintained by the respondent a sum of .Rs,82,117.16 became due against the petitioner up till 9-12-1980. Upon refusal of the petitioner to pay the said amount, the respondent was constrained to file the said suit.
3. The petitioner contested the suit on the ground that the suit was filed after lapse of 9 years which proved acquiescence on behalf of the respondent. On merits it was contended that the business transaction between the parties only lasted uptil 12-1-1980 whereafter there were no business dealings of any nature between the parties and that the claim of the respondent was wholly frivolous. Later the petitioner objected to the jurisdiction of the Arbitration Board through a separate application filed on 26-1-1989. This application was rejected by the Arbitration Board vide order dated 19-7-1989.
4. After recording the evidence of the parties, the Arbitration Board Market Committee decreed the suit of the respondent in the sum of Rs,85,401.88 against the petitioner vide judgment and decree dated 26-8-1989.
5. The petitioner filed an application dated 14-9-1989 in the Court of the Civil Judge, Chistian praying for the setting aside to the award of Arbitration Board dated 26-8-1989 and the decree based upon it. He also moved an application dated 28-9-1989 under section 47, C.P.C. praying for furnishing of personal security in decretal amount. The application to set aside the award was dismissed by the trial Court vide order dated 10-10-1989. The objection petition was also dismissed by the learned Civil Judge by a separate order dated 10-10-1989. The present writ petition has been filed to challenge the award of the Arbitration Committee/judgment and decree dated 26-8-1989.
6. In Writ Petition No,624 of 1990 suit for recovery of a sum of Rs,32,394.74, was filed by Muhammad Chiragh respondent therein against Malik Inayat and Master Muhammad Siddique before the Chairman Arbitration Board Market Committee Chistian. The contention of the plaintiff as contained in the plaint was that the parties had business with each other. According to the plaint a sum of Rs,30,000 was given by the plaintiff to Malik Inayat petitioner No,1 upon the surety of Master Muhammad Siddique petitioner No,2 for purchase of wheat. As Malik Inayat Ullah petitioner failed to supply wheat, the suit for recovery was filed against him. Through his written statement petitioner No,1/defendant denied the claim of Muhammad Chiragh plaintiff.
7. The Arbitration Board Market Committee, Chistian vide its award/judgment and decree dated 3- 5-1989 decreed the suit of Muhammad Chiragh against petitioner No,1 Malik Inayat Ullah.
8. An application under section 47 was filed during the course of execution which was dismissed vide order dated 19-5-1990 passed by the Executing Court Malik Inayat Ullah has challenged the award/judgment and decree of the Arbitration Board Committee Chistian through the said writ petition.
9. The learned counsel appearing in support of the writ petition has contended that the entire proceedings before the Aritration Board culminating in the judgment and decree impugned are coram non judice. It was submitted that the jurisdiction of the Arbitration Board was limited and was not attracted in the circumstances of the case. He referred to section 24(1) of the Punjab Agricultural Produce Ordinance (XIII) of 1978 which is reproduced below:- "Section 24(1). Arbitration Board.---(1) The Government may, by notification direct that all or any of the disputes, other than a dispute to which all the parties are dealers, arising in a notified market area, and relating to such matters connected with agricultural produce as may be prescribed shall be referred to a Board of Arbitrators constituted under this Ordinance in such manner, for such period and subject to such provisions as may be prescribed."
10.According to the learned counsel for the petitioner the Arbitration Board has no jurisdiction in the matter, the parties were only dealer and no dispute to which all the parties are dealers could be decided by the Arbitration Board. He relied upon the contents of the plaint to suggest that respondent/plaintiff and the petitioner are Commission Agents and "BEUPARI" respectively and are thus covered under the term dealers. He next submitted that the Arbitration Board even otherwise had no terrtorial jurisdiction to deal with the matter as according to plaint itself the petitioner used to make purchase from other markets and thus the Arbitration Board of Market Committee Chistian could not entertain or decide the suit as the dispute did not arise within the limits of the said notified market area. The learned counsel referred to Manzoor Hussain v. Board of Arbitrators, Market Committee Khanewal (1984 CLC 1585) to contend that in case of dispute between two dealers the Arbitration Board would have no jurisdiction under section 24 of Ordinance, 23 of 1978.
He also relied upon Khalid Abbas v. D.C/Collector, Okara and others (NLR 1999 Revenue 177) for the same proposition. It was next contended that suit before the Arbitration Board was hopeless y barred by time or at least suffers from inordinate delay amounting to laches and acquiescence.
According to the learned counsel for the petitioner even if no limitation is provided, the lis must commence within a reasonable time otherwise the suit shall be barred by laches. It would also be deemed that the plaintiff has acquiescence not filing the proceedings by long silence. He referred to Abdul Rehman v. Khuda Bakhsh and 2 others (1972 SCMR 403) and Najmuddin v. Zamir Ahmad (PLD 1982 Karachi 188). It was lastly contended that any law which had the effect of curtailing the jurisdiction of the. Civil Court must be construed strictly. As section 24 has the effect of ousting the jurisdiction of the Civil Court, the Arbitration Board can exercise the jurisdiction only when all the conditions of jurisdiction before it are fulfilled: Reference was made to Khawaja Muhammad Akbar and 5 others v. Khawaja Fateh Muhammad and 15 others (1993 MLD 76) and Rehmat Khan v. Abdul Razzaque (1993 CLC 412).
11.On the other hand, the learned counsel for the respondents submitted that the term dealer is not to be understood according to its ordinary dictionary meaning but has to be interpreted in accordance with the definition of the term as given in section 2(b) of Ordinance (XXIII of 1978). He further referred to provisions of section 6 to contend that any person who wishes to work as a dealer in a notified market area may apply on the prescribed form for a licence in this behalf. It was submitted that section 6 (ibid) regulates the grant of licence without which a dealer cannot lawfully operate under the Ordinance.
12.He thus submitted that the petitioner does not fulfill the abovementioned statutory requirements and thus cannot claim to be a dealer. Upon the question of limitation the learned counsel submitted that the Arbitration Board for Market Committee Chistian was constituted for the first time by Notification No . P. DXIV-5/81 dated 23-10-1986. Thus it could not be said that the filing of the suit was hit by either laches or by the principal of acquiescence. He next contended that the petitioner had participated in the proceedings before the Arbitration Board. He even examined himself as a witness after the conclusion of the evidence of the plaintiff/respondent and having taken part in the proceedings could not, in the face of an adverse order turn around and challenge the jurisdiction of the Special Tribunal. He referred to Ch; Abdul Qadir v. Lahore Commercial Bank Ltd. and 7 others (1980 SCMR 280), Feroz Shah and 2 others v. Manzoor Hussain Shah and 84 others (1969 SCMR 96(1), Abdul Lateef v. Mst. Surat Khatoon and others (1988 CLC 1950) and Ahmad Khan and another v. Zahur Ahmad Khan Tareen and 7 others (PLD 1986 Lah. 184).
13.Arguments of the learned counsel for the parties have been heard and record perused.
14.The term dealer used in the Punjab Agricultural Produce Market Ordinance (XXIII of 1978) is defined in section 2(b) (ibid) which is reproduced as under:- 2(b) 'Dealer' means "any person who within the notified Market Area sets up, establishes uses or allows to be used any place for the purpose or sale of the agricultural produce."
It is clear from this definition that a person in order to qualify to be a dealer under the Ordinance XXIII of 1978 must be a person who sets up, establishes, uses or allows to be used any place for the purchase or sale of the agricultural produce. There is nothing on the record to prove that the petitioner has set up or established any such place within the notified Market Area. The petitioner would thus not qualify to be a dealer within the meaning of the term as given in the Ordinance.
15.Section 6 of the Ordinance further provides for the procedure of grant of licence to a dealer to work in any notified market area. The licence is to be granted in by the Market Committee concerned subject to the fulfillment of the conditions of grant of licence under section 6 subsection
(2) (ibid). The grant of licence and its terms are regulated by the Provisions of section 6 of Ordinance XXIII of 1978. Licence fee not exceeding Rs,1,000 has been prescribed. Licence under the Ordinances shall not be granted to a minor, a person of unsound mind, a declared insolvent or if he has been guilty of ,criminal misappropriation etc. section 6 subsection (3) makes the carrying on of a business of a dealer in a notified Market Area is subject to obtaining of a valid licence. Thus no person can lawfully carry on business of a dealer without fulfilling of the conditions of section 6 of the Ordinance. Applying this criteria to the case in hand, the petitioners do not qualify to be a dealer under the Ordinance.
16.Under section 24(a) the jurisdiction of the Arbitration Board is taken away in respect who are dealers. As the parties are not dealers under the law, the Arbitration Board acted with jurisdiction under section 24 in granting the impugned order/decree. The contention of the learned counsel for the petitioner that the suit of the respondent before the Arbitration Board was barred by laches or by acquiescence is also not made out from the record. Section 24 deals with the constitution and the procedure before the Arbitration Board. Although specific procedure has been laid down in section 24, the period of limitation for a suit before the Arbitration Board has not been prescribed.
Whenever the Legislature in its wisdom chose not to prescribe a period of limitation it implies that the Legislature had deliberately and with conscious intention omitted to lay down any specific bar of limitation. In such situation laches or acquiescence may not be lightly inferred unless there is positive material on the record showing a conscious renunciation of his right by a plaintiff. No such material exists on the record to suggest such conduct of the respondent/plaintiff. The respondent has placed on the record copy of Notification No,P.DXIV-5, dated 23-10-1986 to submit that no Arbitration Board of Market Committee, Christian was in existence before 23-10-1986. In this view of the matter, the objection regarding laches or acquiescence has no merit. It is also observed that the petitioner has participated in the proceedings of the Arbitration Board. After having submitted to the jurisdiction of the said Tribunal the petitioner could not, in the face of an adverse findings against him by the Tribunal, be allowed to challenge its jurisdiction. Rule laid down in Ch. Abdul Qadir v. Lahore Commercial Bank Limited and 7 others 1980 SCMR 280 is fully applicable.
17.In view of the above,' there is no merit in the contention raised by the learned counsel for the petitioner, the writ petition is devoid of force and is hereby dismissed leaving the parties to bear their own costs.