' This civil revision is directed against the concurrent judgments and decrees of the learned lower Courts below i.e. The judgment and decree dated 14-5-1981 passed by Civil Judge II-Class, Faisalabad in terms of which he accepted respondent's application under section 14/17 of the Arbitration Act and made the award rule of the Court as also the judgment and decree dated 10-3- 2000 passed by the Additional District Judge Faisalabad vide which petitioner's appeal against the afore-referred judgment and decree of the trial Court was dismissed.
2. Facts giving rise to the instant petition are that respondent Jilal Din moved an application under section 14 read with section 17 of the Arbitration Act 1940 for making award dated 26-12-1979 as rule of the Court. In the said application it was averred that applicant Jilal Din, petitioner in the instant petition Chiragh Din & Munshi were brothers whereas Mst Bavi was their real sister. They were residing in House No.P-52. A dispute arose with regard to their respective shares. Ch. Muhammad Siddique Salar, who was the then Councilor and became Deputy Mayour Faisalabad, was appointed as Arbitrator through an arbitration agreement dated 10-12-1979. This agreement was thumb-marked by all the brothers and their sister Mst. Bavi and was attested by Muhammad Ali and Khurshid Ahmad Awan. The latter also scribed the document. The Arbitrator announced the award on 26-12-1979. Respondent's application was contested by the petitioners/ defendant and in the written reply submitted objections with regard to the maintainability of petition, the denial of arbitration agreement and the allegation that the arbitrator had misconducted while passing the award were specifically taken. It was also alleged that the application had been filed by respondent Jilal Din in collusion with the other brothers Munshi and sister Mst. Bavi and the alleged arbitrator. In terms of the divergent pleas the learned trial Court framed issues which are as under:--
(1) Whether this Court has no jurisdiction to try this suit?
(2) Whether the agreement dated 10-12-79 for arbitration between the parties was executed through fraud and misrepresentation?
(3) Whether the arbitrator exceeded his powers during the proceedings in the award?
(4) Whether the petitioner is estopped by his conduct to refer the matter before the arbitration?
(5) Relief.
3. In support of the application the respondents produced Khurshid Ahmad the scribe and the attesting witness as AW1, placed on record the agreement Exh.A1, Award Exh.A2 and the schedules Exh.A3 and A4, Muhammad Siddique Salar the arbitrator appeared as AW2 and Jilal Din appeared as. AW3. Petitioner/defendant on the other hand produced Shaukat Ali RW1 and appeared himself as RW2. Learned trial Court allowed the application which judgment has been affirmed by the Addl: District Judge vide the impugned judgment and decree dated 10-3-2000. Hence this petition.
4. Learned counsel for the petitioner in support of this petition made the following submissions: I. That the respondent/applicant failed to prove the execution of the agreement in terms of Article 17 read with Article 79 of the Qanune-Shahadat Order as two attesting witnesses had not been produced in evidence. Reliance was placed on PLD 1996 Lahore 367 Abdul Khaliq v.
Muhammad'Asghar Khan and others & PLD 1996 SC 256 Sana Ullah and others v. Muhammad Manzoor and others; H. That both the Courts below did not consider the objections raised by the petitioner/defendant with regard to the so called award merely on the ground that the objections should have been filed by way of a separate application which ground is untenable in law; HI. That the learned trial Court did not pass any order on the application filed by the petitioner/defendant under section 30/33 of the Arbitration Act and the judgments and decrees rendered are not sustainable on this short ground; IV. That the petitioner had moved an application for comparison of petitioner' thumb-impression with the assumed thumb-impression of the petitioner on arbitration agreement but the learned trial Court failed to pass any order on the said application ' In support of the afore-referred submissions learned counsel relied on PLD 1993 Lahore 11 (Col. Retd. Muhammad Aslam v. Haji Muhammad Shafi and others) 1988 CLC 1583 (Province of Baluchistan v. Haji Muhammad Hassan and others), (Province of West Pakistan v. M/s. Fakir Spinning Mills Ltd. And others) PLD 1962 Karachi 386; 2002 SCMR 1089, PLD 1976 Karachi 891 (Farid Majid and others v. Muhammad Nawab) and an unreported order of this Court passed in F.A.O.
No.235 of 2002.
5. Learned counsel for the respondent on the other hand defended the concurrent judgments and decrees and submitted as under: I. That both the Courts have concurrently made the award rule of the Court having held the agreement to have been validly executed and this Court may not act as a third Court of fact in exercise of the revisional jurisdiction of this Court. Reliance was placed on (Abdul Hameed v.
Ghulam Muhammad and others) 1987 SCMR 1005, (Riaz v. Muhammad Salim and others) 1989 SCMR 1491 (Azizullah Khan and others v. Gul Muhammad Khan, 2000 SCMR 1647, 2000 SCMR 31; H. That during the course of proceedings the documents arbitration agreement was impounded and the revenue fee was thereafter duly paid and the objection qua its non-registration therefore, is not tenable. Reliance was placed on (Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique) PLD 1978 SC 279 III. That the requirement of attestation of two witnesses in terms of Articles 17 and 79 of the Qanun- eShahadat Order would not be relevant as the arbitration agreement in question was executed on 10-12-1979 whereas the Qanune-Shahadat came into effect in the year 1984. In support of this submission learned counsel relied on Bhag Din and others v. Hamad Mehmood and others (1991 CLC Note 120 at p.97. Section 68 of the Evidence Act which was in vogue at the time when the agreement was executed required production of one witness of attestation for proving a document. In the instant case Khurshid Ahmad was not only an attesting witness but scribe of the agreement Ex All and there is an endorsement on the document itself that he was attesting witness as well as scribe. The law on this point he submitted has been candidly dealt with in Haripada Malty v. Annad Prosad Haldar and others AIR 1930 Calcutta 750.
IV. That the application to seek comparison of petitioner's thumb-impression on the agreement Ex.A/1 was considered and rejected which is evident from order of trial Court available on the file of this Court. This order was never challenged by the petitioner; that bona fide of respondent/applicant with regard to furnishing proof of the execution of arbitration agreement Ex.A/1 is evident from the fact that in the list of witnesses submitted at the time of filing the application under section 14/17 of the Arbitration Act he had relied on the evidence of Finger Print Expert whereas the petitioner/defendant-never cited the said expert in the list of witnesses submitted by him; VI. That the petitioner/defendant was on notice on application of the respondent applicant under section 14/17 of Arbitration Act, petitioner/defendant filed detailed objections in his written reply, he also filed an application under section 30/33 of the Arbitration Act, therefore, he cannot say that he had no notice; VII. That the objections raised in the application filed by the petitioner/ defendant under section 30/33 during the pendency of respondent's application under section 14/17 of the Arbitration Act mere practically the same which petitioner/defendant raised in the written reply submitted by him to respondent/ applicant's application and while making the award the rule of the Court vide judgment and decree the learned trial Court has considered all the afore-referred objections and the application filed by the petitioner under section 30/33 of Arbitration Act therefore, stands substantially decided. No separate order was called for on the latter application in the afore- referred circumstances. In support of this contention learned counsel relied on AIR 1940 Patna 438, AIR 1950 Allahabad 427 and (Muhammad Yousaf and others v. Nazir Ahmad and others) PLD 1989 Lahore 485.
6. I have gone through the evidence on record, the concurrent judgment rendered by the Courts below and have considered the submissions made by learned counsel for the parties and precedent case law cited at bar.
7. The crucial issue in the instant case was Issue No.2 i.e. Whether the arbitration agreement dated 10-12-1979 was executed through fraud and misrepresentation and the petitioner made his submissions primarily on this issue. The precise contention of petitioner's learned counsel is that since respondent/applicant had produced only the scribe and two attesting witnesses had not been produced therefore, the arbitration agreement Exh.A/1 has not been proved in terms of Articles 17 and 79 of the Qanun-eShahadat Order. The afore-referred provisions no doubt mandate production of two attesting witnesses for proving a document but the Qanun-e-Shahadat order came into effect on 28-10-1984 whereas arbitration agreement Exh.PA/1 was executed on 10-12- 1979. At that time the Evidence Act was in vogue section 68 of which required production of one attesting witness to prove a document. A bare reading of Ex.PA/1 would show that besides the parties to the agreement there were two attesting witnesses namely Muhammad Ali and Khurshid Ahmad. Khurshid Ahmad signed the agreement in two capacities i.e. As an attesting witness and as a scribe. The latter appeared in Court as AW1 and candidly stated that he not only scribed the arbitration agreement but also signed it as an attesting witness. The law applicable at the time of the execution of agreement provided for appearance of one attested witness which requirement had been .Squarely fulfilled by Khurshied Ahmad AW1 who was besides being a scribe of the document an attesting witness. In Bhag Din and another v. Mian Hamad Mahmood and , others (1991 CLC Note 120 at p. 97) it was held as under: ' S.15 Qanun-e-Shahadat (10 of 1984) Art. 17(2)---Agreement of rent---Admissibility in evidence--- Tenant's objection that rent deed was not admissible in evidence because of having not been attested in terms of Art.17(2)(a), Qanun-eShahadat (10 of 1984), had no force because rent deed was executed in 1963 whereas Qanun-eShahadat was promulgated in 1984---Qanun-e-Shahadat would not .Apply retrospectively to documents already executed and being past and closed transitions--- (Interpretation of Statues)."
8. Petitioner's learned counsel relied on two judgments in support of the contention that in terms of Articles 17 and 79 of Qanun-e-Shahadat Order the production of two attesting witnesses is a sine qua non to prove a document. In PLD' 1996 Lahore 367 the agreement in issue was dated 19-9-1989 thus much after the promulgation of Qanun-e-Shahadat Order and in PLD 1996 SC 256 the agreement though is dated 13-12-1982 but the issue of non-application of the Qanun-e-Shahadat Order 1984 retrospectively was never raised. Moreover in the said case it was in evidence that both the attesting witnesses were alive and available but were not produced whereas in the instant case there is nothing on record that the other attesting witnesses namely Muhammad Ali was alive and available and was not produced. All the three witnesses namely Khurshid Ahmad (AVv"1), Ch. Muhammad Siddique (AW2) and Jilal Din (AW3) stated in cross-examination that Muhammad Ali AW1 attested an arbitration agreement Exh.PA/1, none of these witnesses was suggested that Muhammad Ali was alive and available when these witnesses were being examined. Yet another factor which is to be kept in mind is that the entire evidence was recorded in the year 1981 and the statement of the witnesses of respondent/applicant (A.W.1, A.W.2 and A.W.3) were recorded on 11- 4-1981 which is much before the promulgation of Qanun-eShahadat, 1984.
9. The contention of petitioner's learned counsel that the non decision of petitioner/defendant's application under section 30/33 of Arbitration Act is a material irregularity vitiating the entire proceedings is not tenable.. Section 30 and 33 of Arbitration Act are preliminary meant to provide an opportunity to the objector to the award to raise objections with a view to have the, award set aside. If on an application under section 14/17 of Arbitration Act potential objector is already on notice and in his written reply to the afore-referred application he has raised all the objections then the said written reply can be considered as an application under section 30/33 and an order passed would be an order under the afore-referred provisions. Such technical objection are an attempt to take advantage from some mistake of the Court and the Courts have generally repelled such objections. In Ram Lal v. Dukhan and others (AIR 1950 Allahabad. 427 at page 429 it was held as under: "The applicant applied under section 14 of the Act for the Award being filed. On this the learned Munshi gave notice to the parties. The opposite parties filed a written statement denouncing the agreement to refer as fraudulent and null and void and the award, as unenforceable. The relief sought in the written statement was that the application be dismissed. Merely because it was not stated in the written statement that it was an objection under section 33 and the relief claimed was not that the award be set aside but that the application for its being filed be dismissed it cannot be said that it was not an objection contemplated -by section 33 and that the judgment passed by the learned Munshi in the suit does not contain any order refusing to set aside the award. The law does not require any objection under section 33 to be filed in addition to the written statement in such a case. It does not require any written statement to be filed at all. All that it requires is that a notice of the filing of the award should be given to the parties and it is for the parties to decide whether to challenge the award under section 33 or not. If they wish to challenge it, they can do so in any manner they like; S.33 does not prescribe the manner in which the *challenge should come. The written statement serves the purpose of the objection challenging the validity of the award".
' A similar view was taken in Gauri Singh v. Ramlochen (AIR 1948 Patna 430 wherein at page 433 it was held as Under: "However, I am of the opinion that an application to set aside an award can be made under section 33 and I am further of opinion that in view of the written statement in the present case can be considered as an application under section 33"., ' The order passed by a learned Single Judge of this Court in F.A.O. No.235 of 2002 was an ex parte order. The learned Court I may observe with respect was not properly assisted and the afore- referred judgments of prior date holding that a non-decision on an application under section. 30 of the Arbitration Act would not be fatal (When the objections raised therein have already been dealt with in an application under section 14/17 of the same Act) were not brought to the notice of the learned Court. The order passed therefore, is a judgment in per-incuriam. The arguments of petitioner's learned counsel that petitioner's application seeking comparison of his thumb- impression with the one on arbitration agreement Ex.PA/1 remained undecided is not supported by record. At page 70 of the petition I find the order dated 19-4-1980 passed by the learned trial Court vide which the said application of the petitioner/defendant was dismissed though by a short but nevertheless is speaking order which is as under: {{URDU TEXT}} ' This order remained unchallenged. Even after the recording of evidence this issue was never raised. I have gone through the award which negates the contention that the award is unreasoned.
The award has been rendered by Ch. Muhammad Siddique Salar who admittedly was not related to both the parties and was at one point of time Deputy Mayor of Faisalabad Municipal Corporation. While alluding to the arbitration, and narrating the events/ circumstances leading to the rationale of the award he stated as under: {{URDU TEXTT}} The Arbitrator was not acting as Court to require a detailed judgment. The operative part of the Award is preceded by the history of the issue, and the rationale of the Award. It therefore, cannot be argued that the Award is without reason. The concurrent judgments and decrees of the learned Courts below are neither against the record nor reflect any misreading or non reading of evidence on record to warrant interference in revisional jurisdiction of this Court. This Court in exercise of revisional jurisdiction cannot act as a Court of appeal. No case for interference is therefore made out.
' For what has been discussed above, I do not find any merit in this petition which is dismissed with no order as to costs.