MIAN SAQIB N1SAR, J.--- The instant petition i.e. W.P. No. 15365/2000 as also C.R. No. 631 of 2000 are being disposed of together, as common questions of law and facts are involved in both these matters.
2. It may be pertinent to point out that the direct revision petition i.e. C.R. No. 631/2000, against the order of the learned Civil Judge, has less jurisdictional value, than Rs.25,00,000i- and in ordinary course, should have gone back to the learned District Judge concerned, but because of the connected writ petition and also on account of the concurrence of the learned counsel for the parties, the same is being disposed of.
3. The dispute between the parties, relates to property No. 62-Main Boulevard Gulberg, Lahore, which was owned by Dr. Bahadar A.I Shah and his wife Mst. Hamid Fatima. It is the case of the petitioners in the revision petition, that the afore-named had gifted the said property to their sons namely Syed Amir Haider and Syed Agha Haider, respondents Nos. 2 and 3. Subsequently, a dispute arose between the parents and the sons, which was referred to the arbitration of Syed Afzal Haider, Advocate vide agreement dated 1.11.1977; the arbitrator pronounced his award on 7.10.1978 in favour of the sons. On 25.3.1979, Dr. Bahadar All Shah, moved an application for making the award rule of the Court. The award was filed and finally made rule of the court on 6.11.1979 and a decree was passed in pursuance thereof. Dr. Bahadar All Shah, died in the year 1998 and after his death, the petitioners, his four out of six daughters brought a suit for administration of the estate, left by their deceased father, including the property mentioned above, claiming, it to be part of his estate.
4. In this suit, the respondents Nos. 2 and 3 moved an application under Order VII, Rule 11, CPC, seeking rejection of the plaint on account of the fact that the property bearing No. 62, Main Boulevard Gulberg, Lahore, was not the part of the estate of Dr. Bahadar A.I Shah, which he had gifted in favour of his sons and was so established from the award and the decree of the Court.
This application was rejected by the learned Civil Judge vide order dated 17.2.2000, which order has been challenged by the respondents through the revision petition
5. Further necessary face connected with the writ petition are, that on account of the objection taken by the respondents in their written statement in the suit for administration, filed by the petitioners, the petitioners filed an application under Section 12(2), CPC and Section 3 of the Arbitration Act, 1940, before the Court, which had passed the decree dated 6.11.1979, by making the award rule of the Court, on the grounds of fraud and misrepresentation. In response, the respondents moved an application under Order VII, Rule 1.1, CPC for rejection of the application mainly on three grounds i.e. (i) ills barred by time; (ii) provisions cf. Section 12(2), CPC, are inapplicable; (iii) the deceased had, no right to challenge the award, therefore, his successors, who have stepped into his shoes, also me no locus standi to file the application. This application under Order VII, Rule 11, CPC, was dismissed by the learned Trial Court vide order dated 17.2.2000. However, on revision, filed by the respondents, the same has been allowed with the result that the application under Section 12(2), CPC filed by the petitioners stands dismissed. Hence the revision petition.
6. Mr. Maqbool Elahi Malik, the learned counsel for the petitioners in the revision petition, states that the application under Section 12(2), CPC was not competent and the challenge to the award and the subsequent decree, passed in pursuance thereof, could only be made through an application permissible under the provisions of Arbitration Au (the Act) such as Sections 30 and 33, etc. In support of his argument, 1-re has relied upon the following judgments.- Government of Sinai; and another v. Ch. Fazal Mohammad and another (1990 PSC 1252) (PID 1991 S.C. 197); Muhammad Baran and another v. Islam-ud-Din and another (1989 MLD 1402); Mian Muhammad Akram and others v. Muhammad Rafi (1989 CLC 15).
It is further argued that the award had been made rule of the Court in the year 1979 and Dr. Bahadar All Shah, died in April, 1998, during his life-time, he had never challenged the award, though the respondents throughout had asserted themselves and are shown in the relevant official record to be the owners of the property, therefore, being successors of Dr. Bahadar All Shah, the petitioners have no right to challenge the award. It is further contended that application under Section 12(2), CPC could only be filed within a period of three years, from the date of the decree, as per residuary Article 181 of the Limitation Act, and because, it has been filed after 19 years, therefore, it was hopelessly beyond limitation and was barred by law.
7. Conversely, Dr. A. Basit, learned counsel for the writ petitioners, has argued that the question, whether the decree obtained on the basis of award was through fraud and misrepresentation, could only be challenged by virtue of application u/S. 12(2); the petitioners had the locus stand' to file application being successor of Dr. Bahadar A.I upon whom the fraud, etc. Has been practised by respondents Nos. 2 and 3, in obtaining the decree and that the petitioners were not aware of the said order and the decree passed in the arbitration proceedings, till they attained the knowledge on 3.10.1998, when the documents were attached with the written statement tin the suit for administration, resultantly, reckoning the time from that date, the application was within time.
8. I have heard learned counsel for the parties. There are two aspects of the matters, one is about the challenge to the award .And the other is qua the assailment of the proceedings, in which, the award was sought to be made rule of the Court and ultimately, a decree was passed by the Court on 6.11.1979. According to the provisions of Section 31 of the Arbitration Act, the question about the validity, effects or existence of an award and all the applications under the Arbitration Act, shall be filed and adjudicated by the Court, to which, the reference initially relates, as per Section 30 of the Act ibid, an award shall not be set aside except on the ground enumerated either therein or on the basis of Section 33 of the Act.
Section 32 bars the institution of the suit on the ground whatsoever qua the decision upon the existence, effects or validity of arbitration agreement or the award. It is clearly mentioned therein that no arbitration agreement or the award shall be set aside, amended, modified or in any. Way effected otherwise than, as provided under the Arbitration Act. Thus to the extent of considering and determining the question, referred to above, only because of the provisions of Section 41 of the Act, which makes the Civil Procedure Code applicable to the proceedings before the Court, in which, the matter relating to arbitration, are being adjudged, the application u/S. 12(2) shall not be competent. However, if the question arises, that the proceedings and the orders of the Court may be in relation to the proceedings under the Act, have- been procured through fraud and misrepresentation, it shall not be a question falling within the domain of the Act, attract the bar contained in sections quoted above, rather the question would be connected with the proceedings of the Court independently and in order to seek the setting aside of the same on the ground enunciated in Section 12(2), CPC, only such application would be competent. However, in the instant case, in the application u/S. 12(2) filed by respondent, it is' clearly mentioned in ground A that "Dr. S. Bahadur A.I Shah never appointed any counsel or signed any pleadings to initiate the so-called application under Section 14 of the Arbitration Act. Signature of aforesaid S. Bahadur Shah is missing on the application under Section 14 also there is no verification thereupon". It is thus clear from the above that the petitioners in fact are challenging the very basis of the proceedings, which had culminated into final decision of the Court making the award as a rule dated 7.10.1979.
Resultantly, qua this part of the dispute, between the parties, the only remedy available was an application u/S. 12(2), CPC.
9. The argument of learned counsel for the revision petitioner, that in fact through the application u/S. 12(2) the petitioners are also challenging the validity of the award, which is not permissible under the law, suffice it to say that application is worded in the manner, which from its contents is clearly a composite application under both the law. Because there is no difficulty of the forum, before which the application, if two were separately filed, therefore, in one and the same, the petitioners could validly and competently seek their remedy of attacking i.e. The award and the decision of the Court making it rule of the Court. Thus to dismiss this nature of the application which required adjudication of factual controversy, based upon evidence to be led by the parties, the revisional Court has committed serious illegality and error of jurisdiction to allow the application of the petitioner u/O. 7, Rule 11, without holding proper inquiry.
10. It may be added that the Order 7, Rule 11, CPC broadly envisages two eventualities for the rejection of the plaint, firstly if it does not disclose cause of action and secondly is barred under the law (presently, the question of payment of Court-fee and rejection in pursuance of failure is not relevant). In order to find out, if the application 'discloses the cause of action, the contents of the application u/S. 12(2), CPC read with Section 33, are to be looked; from the facts stated therein, which if not controverted by respondents, the petitioners shall be entitled to the relief prayed for.
This application thus could not be rejected for the lack of cause of action. Therefore, when the matter falls within the realm of factual controversy between the parties, though it is not always necessary for the Court to frame the issues and record evidence, but in the present case, such controversy could only be decided, if the above procedure was followed. Unfortunately, learned revisional Court on the assumption of certain facts has held the application incompetent and the petitioners lacking locus standi mainly on the reasoning that Dr. Bahadar Shah had never challenged the award, during his life -time and the petitioners being his successor are precluded to do so. But the Court has lost sight of the fact that, it is not yet proved on the record if Dr. S. Bahadar Shah, in fact is the person, who has moved application u/S. 14, he was aware of the proceedings and the order making the award rule of the Court and had acknowledged the respondents Nos. I and 2 as owners of the property on account of award and the decree. If these facts as alleged by the petitioner, are proved, not only that their application is competent; they shall have no locus standi and their case is not hit by rule of past and close transaction.
11. For the other ground of leaned revisional Court that application u/S. 12(2) is hopelessly barred by time, suffice it to say that it is the case of the petitioners that fraud has been committed upon their predecessor-in-interest and thus the moment they learnt about the above award and the decree application was filed. In this behalf, the contents of paragraph 10 of the application, are quite relevant "that knowledge of the fraudulent arbitration proceedings to the award, rule of the Court and decree was gained on 3.10.1998 when these documents were attached with the written statement; hence the instant application is in time." In reply, though this has been controverted by the respondents, but factually the questions remain whether Dr. S. Bahadar Shah, did enter into an arbitration agreement, valid award was given by the arbitrator, moved the application u/S. 14 of the Arbitration Act; it is on his initiation that the award was made rule of the Court; was he aware of the said decree. If it is so proved obviously application u/S. 12(2) of the petitioners, shall be out of limitation, but if it is otherwise, the provisions of Section 19 of the Limitation Act, would come to the rescue of the petitioners and their limitation would commence from the date of attaining the knowledge of the fraud and not from the date, when the order was passed. This question of limitation is again not a matter simpliciter of law, rather it is the question, which is based upon factual determination:- Learned Court below has assumed certain facts, as if Dr. S. Bahadar Shah was the mover of the application u; S. 12(2) and that he was aware of the order of the. Court making the award rule of the Court, etc. These assumptions of fact are absolutely unfounded, which has resulted in grave and serious error in the judgment of the learned revisional Court.
12. In the light of above, the writ petitioners have succeeded to establish that the order passed by the learned revisional Court in this writ petition are result of erroneous exercise of jurisdiction, thus being without the jurisdiction are liable to be set aside; the matter is remanded to the Trial Court to decide the application 1/S. 12(2) read with Section 33, afresh after framing of issues and recording of necessary evidence.
13. In view of the above, it find no defect, error in the order challenged in the revision petition, therefore, the same is hereby dismissed. But because the fate of the suit for administration filed by petitioners (respondents in revision petition) is depended upon the decision of the application WS. 12(2) and I am told that both the matters are pending in the same Court, therefore, instead of pending one case and directing the Court to decide the other first, 2 direct thy.' learned Civil Judge to simultaneously proceed in both the matters and to decide accordingly. .