1. S. AHMED SARWANA, J.---A dispute arose between Ghee Corporation of Pakistan (Private) Limited (appellant herein) and Brokenhill Proprietary Company Limited (respondent herein) which was referred to arbitration by this Court (Suit No,55 of 1987) to Mr. Justice (Retd.) Dorab F. Patel and Sheikh Abdul Rauf for resolution. After disagreement between the two arbitrators, the matter was referred to Mr. Justice (Retd.) Zakiuddin Paul as Umpire, who after hearing the parties gave an award in favour of the. appellant/plaintiff in the sum of Rs,45,92,245 with interest at the rate of 10% from the date of the award. A learned Single Judge of this Court in Suit No,421 of 1994 by judgment dated 14-12-1998 made the Award rule of the Court to the extent of Rs,40,92,245 with interest at 12% from the date of the decree. Again a dispute arose regarding payment of the decretal amount and the parties filed various proceedings against each other. It transpires that on 26-11-1999, respondent (judgment-debtor) filed in Suit No,421 of 1994 an application under Order XXI, rule 2 read with section 151, C.P.C. (C.M.A. No,10214 of 1999) for recording satisfaction of the decree dated 14-12-1998 passed by the Court in the said suit. The application came up for hearing in Court on several dates but could not proceed for one reason or the other. On 16-5-2000, in the absence of counsel for the appellant evidence of one Muhammad Saleem of Muslim Commercial Bank was recorded who produced several documents to show that the appellant had been paid a sum of Rs,40,92,245 by demand draft dated 22-1-1999 and a further sum of Rs,34,680 by demand draft dated 15-2-1999 towards the interest granted by the Court at 12% from 14-12-1998 to 8-1-1999 in satisfaction of the decree dated 14-12-1998 passed in Suit No,421 of 1994. Thereafter, the matter was adjourned to 23-5-2000. As the witness was not cross-examined and his evidence remained unchallenged, the learned Single Judge on 23-5-2000 held that respondent (judgment-debtor) was entitled for recording of satisfaction of the decree which was recorded accordingly and the decree was held to have been satisfied. It transpires that on 20-5-2000, appellant's counsel had filed an application under section 151, C.P.C. for recalling of examination-in-chief ex parte which apparently was not placed before the Court on 23-5-2000 when the order for faction of the decree was passed.
2. Being aggrieved by the order dated 23-5-2000 passed by the learned Single Judge regarding satisfaction of the decree, appellant filed this High Court appeal praying for the following relief: "(i) To call for record and proceedings of suits:
(a) 230 of 1999.
(b) 421 of 1994.
(c) 855 of 1999.
(ii) Further be pleased to set aside the impugned order 'A' dated 23-5-2000 and remand it for fresh decision after hearing both parties."
3. On 22-2-2001 the appeal was admitted in the presence of the respondent's counsel on the basis of the judgment in the case of Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393, produced by the appellant's counsel.
4. Mr. Samiuddin Sami, learned counsel for the appellant, contended that the impugned order of the learned Single Judge was not in accordance with the law and was passed without hearing the arguments or considering the law laid down by the superior Courts relating to payment of interest awarded by an arbitrator in the award and the interest awarded by the Court while making an award rule of the Court. In addition to the case cited at the time of admission, Mr. Sami also referred to 1991 CLC 66 and 2001 NLR (SC)
1. In reply Mr. Abid Japanwalla, learned counsel for the respondent contested the arguments advanced by Mr. Sami and also referred to 1991 CLC 66 alongwith PLD 1995 Karachi 301 in support of his contention that the amount due under the Court decree had been paid.
5. We have considered the arguments advanced by both learned counsel, called for the R and P of Suit No,421 of 1994, perused the order sheet and other documents available therein.
6. On perusal of the file of Suit No,421 of 1994 and the impugned order dated A 23-5-2000, we find that the learned Single Judge dismissed the application for adjournment moved by Mr. Sami and proceeded to pass the order simply on the basis of the statement given by Muhammad Saleem of M.C.B. without hearing the arguments of any party or considering the extent of the powers of the arbitrators and the Court to award interest on the claim and the relevant provisions of the Arbitration Act, 1940 and the judgments referred to above. Both counsel admit that the amount paid by the respondent towards satisfaction of the decree was hotly disputed by the parties and Suits Nos.230 of 1999 and 855 of 1999 had been filed by them against each other. It is well established that whether a litigant draws the attention of the Court to it or not, it is the duty of the Court to apply the correct law PLD 1965 SC 691 and 1972 SCM R 359. It appears from the perusal of the impugned order that the learned Single Judge in his anxiety to dispose of the application as there were apparently numerous other matters pending before him on that day, passed the impugned order without considering the powers of the arbitrators and the Court under the provisions of Arbitration Act, 1940 or requiring anyone of the parties to address the Court on the legal issues involved in the matter. In the circumstances, it would have been in the fitness of things if the learned Single Judge had sought the assistance of at least one counsel present in Court on the legal issues involved in the application especially when appellant's application filed on 20-5- 2000 was pending for setting aside the ex parte examination-in-chief.
7. In view of the above, we allow the appeal, set aside the Order dated 23-5-2000 and remand the