' By order dated 26-4-2003, application filed by the petitioner under sections 5, 11 and 33 of the Arbitration Act, 1940 has been dismissed by the learned Civil Judge, where against this petition has been filed.
2. The learned counsel for the parties have been heard at length and material placed on record considered.
3. Admittedly the Arbitral Tribunal is seized of the matter, therefore, I tend to exercise maximum restraint in touching the merits of respective claims/pleas of the parties particularly when the matter can he disposed of with reference to the settled principles applicable to such a situation.
4. Agreement between the parties for the construction of Kabirwala Shorkot Road is not in dispute, nor that Clause No.67 thereof provided for resort to arbitration in case of any dispute or a difference having arisen in connection with or out of the contract. Disputes statedly had arisen for the resolution whereof arbitration clause was invoked by the respondents vide letter dated 14-1- 2002 complaining that the Engineer had "refused to give decision under Clause 67 of the Conditions of Contract on the aforesaid dispute/claim." Names of three retired Judges were proposed for appointment as sole arbitrator Thereafter, Mr. Justice (Retd.) Nasir Aslam Zahid, was appointed by the respondents whereas Mr. Abdus Salam (Retd.) Secretary was nominated by the Government of the Punjab Communication and Works Department. Arbitration proceedings admittedly commenced thereafter, claim was filed by the contractor whereas reply thereto was submitted by the petitioner and issues were also framed on 11-11-2002. The respondent side had furnished affidavits of its witnesses who had to be cross-examined by the petitioner when application under sections 5, 11 and 33 of the Arbitration Act, 1940 was filed before the Civil Court.
Lahore on 10-4-2003, with the. Prayer "that the authority of the arbitrators be revoked and the arbitration proceedings be declared as invalid and without any basis." The said application was contested and opposed by the respondents and as mentioned above, was eventually dismissed by the trial Court on 26-4-2003. The appointment of arbitrator by the petitioner and participation before the Arbitral Tribunal throughout, till the filing of the application is not denied. Filing of application of the nature, when there were no adverse allegations as to the conduct of the arbitrators or the proceedings in the circumstances leaves a strong impression that it was an afterthought aimed at to hinder and delay the proceedings of the Arbitral Tribunal. After having chosen and appointed an arbitrator without any reservation, unconditionally and then participation in the proceedings, estop the petitioner from reselling on flimsy grounds. In West Pakistan through the Executive Engineer, Rawalpindi v. Messrs Azhar Brothers PLD 1977 Lah. 1013, principle of estoppel was invoked against a party which had been participating in the proceedings before the arbitrator. In Province of Punjab and anothef v. Messrs Industrial Machine Pool, Lahore PLD 1978 Lah. 829, also such a principle was applied wherein it was observed that the arbitrator or umpire could only be removed by Court where he "fails to use all reasonable dispatch in entering on and proceeding with reference and making award and he has misconducted himself or the proceedings". It was further observed that the general principle that mere consent of the parties cannot confer jurisdiction where the Court lacks it was not applicable to arbitration proceedings.
The principle of estoppel and acquiescence was also highlighted in Province of Sindh and another v. Haji Khan PLD 1983 Kar.
621. As mentioned above, the petitioner had as a sequel to correspondence between the parties appointed its own arbitrator and the arbitration proceedings are in progress. They cannot successfully invoke provisions of sections 5, 11 and 33 of the Act and seek revocation of authority of arbitrators. Reference may also be made to Project Director, Balochistan and Minor Irrigation and Agricultural Development Project. Quetta Cantt. v. Messrs Murad Ali & Company 1999 SCM R 121, wherein it was held that all questions relating to the contract could be decided by the arbitrators.
Reliance of the learned counsel for the petitioner upon the precedents cited by him is inapt inasmuch as in Pakistan Refinery Ltd. v. Pakistan National Shipping Corporation and 2 others 1986 CLC 644, the party objecting to the proceedings had in their letter dated 1-2-2-1955 stated that "it shall not be deemed to construe as submission to the arbitration proceedings". It was in this context that right of challenging the arbitration proceedings was held to have not been waived.
Likewise in Hasan Amin v. The Capital Development Authority, Islamabad through its Chairman 1979 CLC 565 soon after the receipt of notice from the appointed arbitrator an application for declaration as to the appointment of sole arbitrator being void, was made in the Court. In Messrs Haji Muhammad Sharif Atta Muhammad v. Messrs Khoia Mithabhai Nathoo and others PLD 1960 (W.P.) Kar. 10 the import of mere pretence and real dispute was noted. In the instant case the conduct of the petitioner did not permit him to resile from its contractual commitments and obligations. The application lacked essential ingredients and substance. The learned trial Judge has thus in the facts and circumstances, rightly applied the principle of estoppel in dismissing the application filed by the petitioner. Mere observation/remarks made in his order that one of the arbitrators, belonging to the superior judiciary would not impair the legal efficacy of the order. It cannot in any way be inferred that in the context of the matter, the Court acted illegally.
' In view of the above, the petition is oereft of merit and is dismissed accordingly.