Brief facts out of which present appeal arises are that Mst. Naziran Bibi, etc. Filed a suit for declaration and permanent injunction against the appellant. The appellant filed written statement and controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the learned trial Court framed the following issues:-- Issues:
(1) Whether the plaintiffs have got no cause of action and locus standi to file this suit? OPD
(2) Whether the suit is barred by limitation? OPD
(3) Whether the suit is not maintainable in its present form? OPD
(4) Whether the plaintiffs are estopped by their own words and conduct to file this suit? OPD
(5) Whether the suit has been incorrectly valued for the purpose of court-fee and jurisdiction, if so, then what is the correct valuation? OPD
(6) Whether the plaintiffs are the daughters of Muhammad deceased and are entitled for inheritance? OPP
(7) Whether the Mutation No.299, dated 20-4-1951 is the result of fraud and forgery, illegal and void; ineffective upon the rights of the plaintiffs? OPP
(8) Whether the plaintiffs are entitled to a decree for declaration and permanent injunction, as has been prayed for in the plaint? OPP
(9) Whether this Court has got no territorial jurisdiction to try this suit? OPD
(10) Whether the suit is false, frivolous and as such the defendant is entitled to any special costs under section 35-A, C.P.C.? OPD
(11) Relief.
2. The learned trial Court decreed I the suit vide judgment and decree, dated 25-10-1995. The appellant being aggrieves filed appeal before the learned Additional District Judge, Sargodha.
During the pendency of the appeal, the parties made statement before the learned. Additional'
District Judge, Sargodha, that the matter be referred to Manzoor Hussain on the basis of statement of the parties, the learned Additional District Judge appointed Manzoor Hussain as Arbitrator, who was directed to submit award till 21-4-1996. The Arbitrator announced the award on 16-4-1996. The respondents submitted an application before the learned Additional District Judge, Sargodha under section 5 of the Arbitration Act for revocation of authority of Manzoor Hussain on 21-4-1996.
The appellant filed reply of the application before the learned Additional District Judge, Sargodha, who accepted the application vide order, dated 22-4-1997. Hence, the present appeal:
3. The learned counsel of the appellant submits that without assigning any reason, the learned Additional District Judge was not' justified in law in revoking the authority of the Arbitrator, appointed earlier with the' consent of the parties for resolution of the disputed question of facts. He further submits that the award was announced by the arbitrator on 16-4-1996 and the respondents filed an application for revocation of authority on 21-4-1996 mala fide but this fact was not considered by the learned Additional District Judge in the impugned order. He further submits that in view of section 5 of the Arbitration Act, it is the duty of the respondents to bring on record evidence to show that Arbitrator had committed mis--conduct but the respondents did not bring on record sufficient evidence to show that the Arbitrator had committed misconduct therefore, the impugned order is not v sustainable in the eyes of law.
4. The learned counsel of the respondents submits that learned Additional District Judge, Sargodha was erred in law to appoint arbitrator with consent of the parties in view of section 2(c) of the Arbitration Act. He further submits that the respondents alleged misconduct against the arbitrator as is evident from the contents of the application filed by the respondents. He further submits that basic order of appointment of the arbitrator made by the learned Additional District 'Judge, Sargodha vide order, dated 27-3-1996 was not valid, therefore, the superstructure shall have to fall on the ground. He further submits that the learned Additional District Judge was justified to accept the application of the respondents. He further submits that the impugned order is valid in the eyes of law and learned counsel of the appellant failed to point out any illegality and irregularity in the impugned order of the learned Additional District -Judge.
5. The learned counsel of the appellant in rebuttal submits that the Appellate Court has powers for revocation of the authority of the Arbitrator in view of section 2(c) read with section 21 of the Arbitration Act.
6. The learned Assistant Advocate---General submits that the impugned order is valid in the eyes of law, therefore, this appeal is liable to be dismissed.
7. I have given my anxious considera--tion to the contentions of the learned counsel of the parties and perused the record myself.
8. The objections of the respondents' counsel that First Appellate Court was erred in law to appoint the Arbitrator with the consent of the parties, is without lawful authority in view of section 2(c) of the Arbitration Act, has no force in view of law laid down by D.B. Of this Court in "Province of Punjab and others v. Messrs Industrial Machines Tool, Government Contractor" (1986 MLD 501). It is pertinent to mention here that this power can be exercised by the Appellate Court as is envisaged by section 107(2), C.P.C. Read with section 41(a) of the Arbitration Act. I am also fortified by the law laid down by the Hon'ble Supreme Court in Wajid Ali's case (1985 SCMR 401). It is also settled principle of law that where the application under section 5 of Arbitration Act is not a bona fide one but is attempt to hold up the arbitration proceedings, then the application is liable to be dismissed. In arriving to this conclusion, I am fortified by "Pakistan Trading Company. v. M.M. Asfani Ltd. And others (PLD 1960 Dacca 81).
9. It is better and appropriate to reproduce the basic facts in choronological order to resolve the controversy between the parties. The First Appellate Court appointed Manzoor Hussain as Arbitrator on the statements of the parties vide order, dated 27-3-1996 with the direction to submit his award till 21-4-1996. The Arbitrator announced the award on 16-4-1996. The respondents filed an application under section 5 of the Arbitration Act to revoke the authority of the Arbitrator on 21-4- 1996 on the following grounds:-- The aforesaid contents clearly reveal that respondents participated in the proceedings before the Arbitrator and the Arbitrator announced the award on 16-4-1996. He submitted the award before the First Appellate Court on 5-5-1996. The contents of the aforesaid application reveal that the Arbitrator had already announced the award but the respondents filed an application on 21-4- 1996, meaning-thereby the respondents participated in the proceedings before the Arbitrator, therefore, the respondents had no lawful authority to file the aforesaid application for the revocation of the authority of the Arbitrator after announcement of the award by the Arbitrator, therefore, the respondents were estopped to file the aforesaid application on the well known principle of estoppel and waiver. In arriving to this conclusion, I am fortified by the law laid down by this Court in "West Pakistan through Executive Engineer, Rawalpindi. v. Messrs Azhar Brothers (PLD 1977 Lahore 1013). It is also settled principle of law that section 5 of the Arbitration Act, does not empower the Court to revoke the authority of an arbitrator but only empowers it to give leave to a party to revoke. In arriving to this conclusion, I am fortified by " Morgan Walker & Co. v. Khardan Co.
Ltd. (AIR 1959 Calcutta 169). The respondent has mentioned general allega--tion against the arbitrator in this application. It is settled principle of law that genera allegation of malice is not sustainable in the eyes of law. In arriving to this conclusion, I am fortified by the following judgments:-- PLD 1974 SC 151 Saeed Ahmad Khan' case; PLD 1990 SC 1092 Amanullah Khan's case; 1989 MLD 2434 K.D. Bali's case and PLD 1978 Lahore 829 Messrs Industrial Machine's case.
10. In view of what has been discussed above, the impugned order of the First Appellate Court, dated 22-4-1997 is not sustainable in the eyes of law as the First Appellate Court accepted the application of respondents in violation of dictum laid down by the superior Courts and in violation oil mandatory provisions of Arbitration Act, therefore, the appeal is accepted with no order as to costs.
11. The respondents are well within their rights to raise all the legal and factual objections against the award filed by the Arbitrator before the First Appellate Court. The First Appellate Court is directed to decide the same after receiving the objections from the respondent against the award in accordance with law. Parties are directed to appear before the First Appellate Court on 19-8- 2002.
With these observations, this appeal is disposed of.