' Muhammad Bakhsh, owned certain properties in Chak No,44-NB, Chak No,45-NB, District Sargodha and 223-RB, District Faisalabad and after his death, a dispute arose amongst his children namely Muhammad Asghar, Muhammad Anwar, Muhammad Asmat. And Sardar Muhammad sons, Mst. Rashida Begum, Mst.Majida Begum and Mst.Saeeda Begum, the daughters. On an application, moved by Mst, Rashida Begum, the appellant, before the Martial Law Authorities for the partition of the property, it has been asserted here that the partition of the properties was accordingly ordered, and thereafter Muhammad Anwar moved an application before the same Authorities questioning the partition by the Martial Law Authorities as invalid and against the Martial Law Regulation No,64. On this application, the matter was referred to the Revenue Department, which was pending, when he withdrew the same. However, on 9-6-1969, Muhammad Anwar filed an application under sections 14 and 17 of the Arbitration Act, 1940 in the Court of learned Senior Civil Judge, claiming that all the above named, through an arbitration agreement dated 27-7-1969, had appointed their brother namely Muhammad Ashgar, as a sole arbitrator, who has made the award on 6-8-1969, and in this situation, .The award be directed to be filed in the Court and the judgment and decree be passed in accordance thereof. The, daughters of Muhammad Bakhsh on 30-9-1969 submitted reply to the application resisting it inter alia on the assertion that the arbitration agreement and the award were invalid because Muhammad Nazir, the husband of the appellant, who is alleged to have entered into an arbitration agreement on their behalf, had no authority; the so-called arbitrator himself was a party to the dispute, thus could neither be appointed nor act as anarbitrator; the partition of the joint properties has already taken place, therefore, there was no occasion for the parties to have entered into any arbitration agreement for the resolution of such dispute.
2. The other respondents of the application, conceded the same. It may be pertinent to state here that I have gone through the original record of the learned trial Court and find no order, through which the arbitrator was directed to file the award, or any notice was given to the respondent about the filing of the award. However, the award was finally tendered in evidence, as Exh.P-2, through the statement of the arbitrator, P.W.2. But on 6-12-1969, before the award was filed, the daughters of Muhammad Bakhsh, including the appellant moved an application, praying therein that the pleas raised by them in their reply to the application under sections 14 and 17, be considered to be their objections to the award as and when the same is filed in the Court. It is however, not clear from the record, of the Court below if any further reply to these objections was filed by the contesting respondents. Anyhow, the learned trial Court framed the following issues:--
(1) Whether the petitioner is not competent to file the petition? OPR.
(2) Whether the Civil Court has got no jurisdiction to try the petition? OPR.
(3) Whether the petition is not maintainable in its present form? OPR
(4) Whether the award in question is illegal, without jurisdiction, based upon fraud, misrepresentation and is liable to be set aside? OPR.
(5) Whether the arbitrator has misconducted himself and the award in question is liable to be set aside? OPR
(6) Relief.
' The evidence of the parties was recorded by the teamed trial Court and through the impugned judgment dated 5-3-1985, rejected the objections of the appellant and made the award rule of the Court, followed by a decree of the even date.
3. Learned counsel for the appellant contends that the power of attorney Exh.R-13, on the basis of which, Muhammad Nazir, son-in-law of the late Muhammad Bakhsh had allegedly entered into the arbitration agreement on behalf of the ladies (daughters of Muhammad Bakhsh) did not contain any such authority, therefore, the agreement and the award made on the basis of the same is void ab initio and rejection of the objections unsustainable. It was further submitted by the learned counsel that the respondent Muhammad Asghar was a party to the dispute himself and it is settled law that no one shall act as a Judge in his own cause. Therefore, the award made by the so-called arbitrator is nullity in the eyes of law. It is further argued that so-called arbitrator had never conducted the arbitration proceedings; no notice of arbitration was ever issued to the appellant and her sisters and without proceeding in the matter, he made the award on the basis of his own knowledge which is not permissible under the law.
4. The learned counsel for the contesting respondents has raised a preliminary objection about the maintainability of this appeal on the ground that according to section 17 of the Arbitration Act, where the objection, if any filed to the award, have been refused and the judgment has been pronounced followed by a decree, no appeal shall lie except on the grounds that the decree is in excess of and/or not in accordance with the award. On the question about the construction of power of attorney, Exh.R.-13, :I- was submitted' that the appellant and her two sisters had never denied the execution of the power of attorney dated 23-4-1966, which confers an authority upon the attorney to conduct proceedings on their behalf in any Court and also had the power to alienate their properties in the manner whatsoever. Thus on the basis of above, the attorney had necessary and ancillary power to enter into the arbitration agreement. Commenting upon the submission of learned counsel for the appellant, that Muhammad Asghar was incompetent to act as an arbitrator, having his own rights and interest involved in the dispute, it was submitted that the parties out of their free-will can validly appoint any person of their own choice to act as an arbitrator, even such a person who himself is a party to the dispute; he has also pressed into service the principle of acquiescence and estoppel by arguing that the ,appellant and other two ladies had duly participated in the arbitration proceedings and also consented to the award. Lastly it was submitted that the appellant had not filed any objections to the award in terms of sections 30 and 33 of the Arbitration Act, which was the only. Remedy available to her and others and the reply given by the appellant to the application under sections 14 and 17, cannot be considered to be their objections, therefore, where there were no objections to the award, the Court had no option except to make the award rule of the Court and pronounce the judgment and pass decree in terms thereof.
5. I have heard learned counsel for the parties. As regards the preliminary objection about the bar of the appeal in view of the provisions enacted by section 17 of the Arbitration Act, is concerned, suffice it to say, that the learned counsel for the respondents appears to have lost sight of the legal impact of section 39 of the Arbitration Act, which provides an appeal against the order refusing to set aside the award. Both the provisions are independent in nature and cater for two distinct eventualities. Section 39 (vi) confers a right upon an aggrieved person to file appeal against an order where the Court has either set aside the award or passed a refusal order. It is well- established principle of law that if through a composite order, the Court has refused to set aside the award and in the same order/judgment makes theaward rule of the Court followed by the decree, the refusal part of the order shall for all intents and purposes be considered as a separate and independent order and shall be appealable under section 39 of Arbitration Act. Whereagainst the other part of the order and the decree, the appeal shall only be maintainable if the condition laid down in section 17 of the Act ibid are met; these two provisions have neither any overlapping nor overriding effect on each other. It may be reiterated that section 17 in no way circumscribe, frustrate, .Forfeit or defeat the right of an aggrieved party to challenge in appeal in the order mentioned in section 39 only for the reason that in the same order, the award has been made the rule of the Court, etc. In the Eight of above, the preliminary objection has no legal force and is disallowed; and , the present appeal is held to be competent.
6. As regards the question, if the reply to an application under sections 14 and 17 can be treated to be the objections in terms of section 30, of the Arbitration Act, the law is well-settled and the answer is in the negative. Thus if a party wants to seek the setting aside of the award on the grounds mentioned in the section, must apply to the Court, through a separate proper application raising specific pleas. But in the instant case, as has been pointed out above, the appellant and her two sisters through an application dated 30-6-1969, before the award was directed by the Court to be filed or was even actually filed, had raised appropriate pleas taken in the reply to the application under sections 14 and 17 as their objections to the award, which was yet to be filed before the Court. The contesting respondents were conscious of this fact, but they never filed any further reply to the same and the Court by considering the divergent pleas of the parties framed the issues mentioned above. The parties being conscious of the points of controversy between them accordingly led evidence. It has never been the case of the respondents that no objections to the award were filed by the appellant and therefore, the award could not be set aside; even the Court below while considering such pleas to be the objections of the appellant and other framed the issues in accordance therewith and the parties led evidence in the light thereof.
' In the light of above, I am constrained to hold that the objections were duly filed by the appellant and had been disposed of by the learned trial Court through the impugned order.
7. There is another important aspect of the matter, that even if it is assumed that no objections were filed by the appellant; yet the Court below while considering the question, if the award should be made rule of the Court or otherwise, was not supposed to remain dormant and to play the role of a post office, by affixing the judicial stamp on the award. The Court has ample suo motu power and in exercise thereof, is duty bound to see if the award which is to be made rule of the Court, by the Court does not violate any provision of law; the rules of justice and/or exchequer, even if the parties have consented that the award be made rule of the Court. In the present case, the mere fact that Muhammad Asghar, the so-called arbitrator himself was a party to the dispute as shall be discussed in para. No,9 below, was inherently incompetent to act as an arbitrator, and pronounce the award impinging the fundamental rule that no one shall be a Judge of his own cause; this error was floating and apparent on the face of the award, rendering it invalid, thus it could not have been made the rule of the Court.
8. Attending to the argument raised by the learned counsel for the appellant that the power of attorney Exh.R-13, did not authorize Muhammad Nazir to enter into any arbitration agreement and thus the agreement and the award based thereupon are invalid; it is fundamental rule of law that the power of attorney must be strictly construed. If any reference in this behalf is required, reliance can be placed on the case reported as Muhammad Yasin and others v. Dost Muhammad and others (PLD 2002 SC 71). Applying this principle, I have gone through the power of attorney and find that though there are general powers conferred upon the attorney, to conduct the cases before the Courts and also to alienate the property, but there is no specific power given to him to enter into any arbitration agreement on behalf of ladies, for the reference of the matter to the arbitrator.
The general powers mentioned above, cannot in any manner be construed, the intention of the ladies to authorize their agent to seek the resolution of the dispute through arbitration. If the ladies intended to confer such power, nothing prevented them to have specifically empowered the attorney, in this behalf. This conspicuous omission of authority in the power of attorney clearly indicates that Muhammad Nazir was never authorized to enter into the arbitration agreement, therefore, notwithstanding whether Muhammad Nazir factually executed the arbitration agreement on behalf of the daughters of Muhammad Baldish with the respondents and had agreed for the appointment of Muhammad Asghar; even on the principle of acquiescence on his part such an agreement, would not bind the appellant and the other ladies.
The submission of learned counsel for the respondents that according to the statement of the arbitrator and another witness, the appellant was present during the arbitration proceedings and had also accepted the award, suffice it to say that no arbitration proceedings have been filed before the Court to prove if any proper reference was filed before the arbitrator; he summoned the parties, proceeded with the arbitration by adhering to the principles of natural justice; marked the presence of the parties; moreover, no documentary proof has been brought on the file to establish if the ladies gave their consent to the award. Thus on the basis of bald and oral statement of the arbitrator and the unconnected witnesses whose presence at the relevant point of time and venue is not established, it cannot be held that the appellant had acquiescence to the arbitration by Muhammad Asghar,participated in the proceedings before him and also accepted the award.
9. Now coming to the question if the parties to a dispute can validly appoint anyone of them as an arbitrator. Suffice it to say that under general rule, if the parties out of their free-will and consent appoints a third person knowingly fully well his relations with anyone of the party to the dispute, such arbitration agreement and the award pronounced thereupon shall not be invalid on the principles of bias. But it is a fundamental rule of patural dispensation of justice, that no person shall be a Judge in his own cause. For example, if there is a dispute only between two persons and both entered into an agreement for resolution of dispute by one of them, it is inconceivable that such an agreement shall be an arbitration agreement. Because according to the definition of the arbitration agreement in the Act, the basic object and the spirit underlying seeking the resolution of a dispute inter se the parties through arbitration is by making the reference to a natural and impartial third person. It may be pertinent to state here that under the law, the arbitration is in the nature of quasi-judicial 'forum of the parties' own choice but with all the requisites and traits, recognizing the right of every litigant party, to seek, as far as possible the resolution of his dispute from an independent and impartial forum. This necessarily excludes a party to the dispute to be that forum, on the maxim, nemo debet esse judex in propria causa (no one can be a Judge in his own cause), which has been explained in the judgment reported as Fazal Din, alias Mina and 2 others. v. Commissioner, Peshawar Division and another (PLD 1968 Peshawar 30) and the following paragraph of the dictum reads as follows:-- "It is well-settled law that no one can be a Judge in his own cause and this is based on the principle nemo debet esse judex in propria causa, The doctrine of bias is one of the important principles of natural justice. In respect of judicial or quasi-judicial tribunals (a) no man shall be a Judge in his own cause and (b) justice should not only be done, but manifestly seem to be done. The same principles apply also to administrative authorities though they are not in the Courts of justice but perform quasi-judicial functions inasmuch as they may have to decide the rights of others."
Applying the 'above rule to the facts of the present case, it is manifest from the record and the award itself, that Muhammad Asghar was a party to the dispute, thus irrespective whether the dispute was also amongst other brother and sisters also yet having personal interest in the cause, he could neither have been validly appointed as an arbitrator, nor could have made a valid award.
It may be relevant to mention here that Muhammad Asghar in the award has allocated a share to himself. This error from the bare reading of the award is floating on the face of the award, thus notwithstanding if the objections were not filed by the appellant, the Courtshould in the exercise of its suo motu jurisdiction have refused to make the award rule of the Court.
In the light of what has been stated above, by allowing this appeal, the impugned order and the award is set aside, consequently, the judgment and decree of the even date making the award rule of the Court has no legal value. No order as to the costs.