Revision petitions i.e. (C. R. No.1381 of 2002), C.R. No.1382 of 2002 and C.R. No.1383 of 2002 arise almost in identical circumstances raising common questions and thus shall stand disposed of through this judgment. Their background briefly stated is as under:---
2. After the award of the contract the petitioner is alleged to have failed to perform the same, which gave rise to the dispute. In the suits filed by the petitioner-respondents invoked section 34 of the Arbitration Act, 1940 relying upon an arbitration clause in the contract. As a consequence a Superintending Engineer was to act as arbitrator in the matter. The said application was allowed by the learned Civil Judge on 2-4-1996 where-after as a result of arbitration proceedings awards, dated 24-8-1999 were rendered by the Superintending Engineer. The petitioner did not but the respondents raised objections to the awards, which gave rise to issues framed by the trial Court.
After proceedings the learned trial Court vide order, dated 10-7-2001 proceeded to set aside the awards and dismissed the suits filed by the petitioner. His appeals there against have also met with the same fate and were dismissed on 9-3-2002.
3. The learned counsel for the parties have been heard end the documents on the record perused with their assistance. The under mentioned issues had been framed by the trial Court in the matter:---
(1) Whether arbitrator was not competent to issue award? OPR
(2) Whether arbitrator mis-conducted and award is liable to be set aside? OPR
(3) Whether award has been given after three years while it should be given within 4 months, therefore, is liable to be set aside? OPR
(4) Whether award has not been written on required stamped paper? OPR
(5) Whether petitioner is entitled to the relief as prayed? OPA
(6) Relief.
While deciding the matter, Issue No.5 only received proper attention of the Court whereas Issues Nos. 1 and 2, which in the context of the controversy were of importance were not considered in their correct perspective and were disposed of in view of the findings on Issue No.5. Even Issue No.3 was also dealt with in the same manner. Suffice it to observe that such a disposition of the matter, particularly in a dispute arising in arbitral matter, when the award was to be judged on the touchstone of relevant provisions of the Arbitration Act, 1940 and clear and specific findings were to be recorded about the misconduct of the arbitrator in rendering the award, was not legal. The controversy was reflected from Issues Nos. 1 and 2, but did not receive due consideration of the learned trial Court. The tenor of the judgment gives an impression that the award was set aside by the Court for the reason that the same was ---time-barred--- No doubt by virtue of section 28 of the Arbitration Act, read with Schedule 1, the award was to be made by the arbitrator within 4 months, yet the conduct of the parties in continuous taking part in the proceedings before the arbitrator could not be ignored or brushed aside. In WAPDA and another v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak. & Company (PLD 1990 SC 359). It was held that "If the parties after the expiry of the four months submit themselves to the jurisdiction of the arbitrator and take part in the proceedings enabling him to make an award, it cannot be said that the arbitrator: acted without jurisdiction. In such a contingency, the principles of waiver and estoppel would apply with full force". It was further observed that "where the party had all along submitted to the proceedings of the arbitrator without any protest, he cannot turn round and object or insist that the award was made out of statutory period". It was thus held that "that the party concerned was estopped from challenging that the award was barred by time". Similar view was taken in Maj. (Retd.) Humayun Akhtar v. Pakistan Defence Officers Housing Authority (PLD 2002 Karachi 427). In the present case as well the respondents continued to participate in the proceedings before the arbitrator despite the expiry of time prescribed under the Schedule to the Act and thus took a chance enabling the arbitrator to decide in their favour. They thus were estopped by their conduct as they had waived their right by taking part in the proceedings and not raising any objection before the arbitrator. The award on that count could not be set aside by the trial Court as 'time- barred'. The affirmance of such a view taken by the trial Court, by the Appellate Court, also suffered from similar error and illegality. The view thus taken by the two Courts below on this aspect of the matter runs counter to the law laid down by the Supreme Court. The judgments are, therefore, not sustainable as observed above. Since the essential issues as to the competency of the arbitrator and the allegation of misconduct have not been properly considered and decided, the appropriate course in the matter is to enable the trial Court to decide the objection petition filed by the respondents afresh in accordance with law. The parties may avail opportunity of producing further evidence in support of their respective pleas. It may be observed that except Issue No.3, findings qua which have been found contrary to the law laid down by the Hon'ble Supreme Court of Pakistan other issues will be determined by the trial Court afresh in accordance with law.
As a consequence of the above the revision petitions are accepted in the light of the observations made above. No order as to costs. 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.