This Constitutional petition is directed against the order dated 14-2-2002 vide which petitioner's revision against the order of the learned trial Judge dated 26-10-2000 was dismissed.
2. The petitioners and respondents had a dispute. On the application of the respondents under section 8 of the Arbitration Act, Mr.Amjad Ali Shah, Civil Judge 1st Class, Lahore held that there was an original agreement between the parties dated 15-12-1981 in vernacular and in English through which an arbitrator was appointed, that on 29-10-1982 the arbitrator commenced the proceedings whereafter the parties repeated applications for extension of time within which the arbitrator may proceed which was allowed, that the appointment of arbitrator could not be declared illegal for want of notice under section 8(2) of the Arbitration Act as the said lacuna stood cured when the parties by mutual agreement agreed to the appointment of Mr.Ehsanul Hague Bhalli, District and Sessions Judge as Arbitrator, that the original agreement was admitted by the parties before the High Court in the earlier round of litigation and parties had been appearing in the arbitration proceedings. This order was challenged in revision and the learned Additional District Judge, vide the impugned order dismissed the same and affirmed the order dated 26-10-2000 on the ground that the petitioner had joined the arbitration proceedings before the arbitrator and he was estopped to raise the objection with regard to the appointment. It was further observed that the petitioner even otherwise did not allege misconduct bias or a partiality against the arbitrator. The two concurrent orders passed by the Courts have been challenged in this Constitutional petition.
3. In support of this petition learned counsel for the petitioner Mr. Muhammad Sami Hayat, Advocate made the following submissions:--
(i) That there was no arbitration agreement between the parties and reliance of the two Courts below on the previous litigation is of no avail as the august Supreme Court had set aside all the previous orders and had directed the trial Court to decide the matter afresh including petitioner's plea regarding the nonexistence of any mutual agreement on arbitration.
(ii) That in terms of section 8(1) of the Arbitration Act a notice was mandatory to all the parties concerned before an arbitrator could be appointed and both the Courts have rendered judgments against the law declared. Reliance was placed on PLD 1970 Lah. 398.
(iii) That the learned Courts below have decided the question of the existence or otherwise of the arbitration agreement without recording evidence.
(iv) That the learned trial Court had framed two issues and it was mandatory for it to record evidence, that both the Courts below' have not appreciated the import and effect of the orders passed in Writ Petitions Nos. 1545 of 1987 and 1946 of 1992.
4. Learned counsel for the respondents defended the impugned orders and argued as under:--
(i) That the petitioner did neither document the civil revision before the revisional Court nor has he documented this Constitutional petition. The issue raised in this petition is relatable to certain documents and orders, which have not been appended with this Constitutional petition and the petition, therefore, merits dismissal on this short ground.
(ii) That this petition is directed against two concurrent orders of the Courts below, there is no illegality or jurisdictional defect to warrant interference under Article 199 of the Constitution and this petition merits dismissal.
(iii) That the arbitration agreement dated 15-12-1981 was in two languages and were signed by both the parties, pursuant to which the Arbitrator so appointed namely Mr. Hafeez Akhtar Randhawa, started proceedings and the parties did appear before him till the said arbitrator expressed his inability to proceed any further for personal reasons. Whereafter subsequent arbitrators were appointed.
(iv) That in Writ Petition No,1545 of 1987 filed by the petitioner the Court had disposed of the case with a direction, "Accordingly, the orders by the Civil Judge, Lahore on 18-7-1984, 17-1-1985 and 7-7- 1986 are set aside with a direction that he shall decide the applications filed by respondents Nos.4 to 6 under sections 8 and 28 of the Arbitration Act afresh in accordance with law after impleading and hearing all the parties to the dispute. The original agreement in vernacular as well as in English filed in this Court by Mr. Hafeez Akhtar shall be sent to the trial Court by a special messenger."
5. I have heard the learned counsel for the parties and have gone through the impugned concurrent orders and have examined the documents annexed with the written statement and with Civil Miscellaneous No,1727 of 2003 filed by the respondents which was allowed on 15-12-2003.
6. Both the Courts have concurrently held that there was an original agreement between the parties dated 15-12-1981 which is in vernacular and in English both through which the arbitrator was appointed. The latter commenced the proceedings on 29-12-1982 whereafter parties sought extension of time not only from the arbitrator but also from the Court under section 28-A of the Arbitration Act. On 18-7-1984 Civil Judge 1st Class allowed the application for extension of time and directed that, "the extension in time for making award is hereby extended till 17-8-1984 the counsel for the petitioner and respondent Np.2, present" (R-3 with Civil Miscellaneous No,1727 of 2003). R-6 with the said application is the order dated 7-7-1986 passed by Civil Judge 1st Class vide which he allowed application for appointment of a new arbitrator and directed that instead of Mr. Hafeez Akhtar Randhawa, Deputy Commissioner, Sialkot who was the previous Arbitrator Ch.Hassan Nawaz, the then Secretary, Law Department Federal Government shall act as Arbitrator. Both the parties were directed to deposit a sum of Rs,2,000 each for expenses of the arbitrator. R-8 is letter of regrets of the previous Arbitrator Mr. Hafeez Akhtar Randhawa vide which he intimated the concerned Civil Judge that, "I was informally chosen as an Arbitrator without reference to this Honourable Court by the above mentioned two parties regarding Hafizabad Straw Board Mills.
Thereafter the parties have not cooperated with me in finalizing the case till date. I am, therefore, not in a position to finalize this arbitration and shall no more be an arbitrator between the parties".
R-11 annexed with the afore-referred application is the order dated 25-10-1989 passed in Writ Petition No,1545 of 1987 wherein the Court directed the Civil Judge to decide the matter afresh and holding as under:-- "Accordingly the orders by the Civil Judge, Lahore on 18-7-1984, 17-1-1985 and 7-7-1986 are set aside with a direction that he shall decide the applications filed by respondents Nos. 4 to 6 under sections 8 and 28 of the Arbitration Act afresh in accordance with law after impleading and hearing all the parties to the dispute. The original agreement in vernacular as well as in English filed in this Court by Mr. Hafeez Akhtar Randhawa shall be sent to the trial Court by a special messenger." Writ Petition No,1946 of 1992 did raise an objection with regard to non-service under section 8 of the Arbitration Act the petition was dismissed and the order of the District Judge was upheld with the observation which is as under:-- "It was too late in the day to raise any technical objection that the notice under section 8 has not been served and as such the appointment of arbitrator could not be made. There is no ground to interfere with well-reasoned judgment of the District Judge." The matter was taken to the august Supreme Court by the petitioner in Civil Petition for Leave to Appeal No,929)(L) of 1999 against the afore-referred order of the High Court passed in Writ Petition No,1946 of 1992 and the august Supreme Court disposed it of in following terms:-- "Learned counsel for the petitioners states that he would not press this petition provided a direction is issued to the learned trial Court to examine the question of appointment of arbitration as also the continuation of Mr. Ehsanul Hague Bhalli, as Arbitrator.
2. Without prejudice to the merits of the case and the observations made in the impugned order, we direct the learned trial Court to decide the application under section 8(1)(b) movedby Ehsanullah Tarar respondent in June, 1985 within a period of two months from the receipt of this order (R-13 with Civil Miscellaneous No,1727 of 2003)."
A perusal of the afore-referred orders in the litigation between the parties up to the august Supreme Court would indicate that petitioner had tried to wriggle out of the arbitration agreement.
Both the Courts below pursuant to the direction of the august Supreme Court have concurrently held that there is an agreement between the parties for appointment of an arbitrator in terms of which firstly Mr. Hafeez Akhtar Randhawa, the then Deputy Commissioner was appointed Arbitrator.
The intimation in writing sent by the first Arbitrator (Mr. Hafeez Akhtar Randhawa (he then Deputy Commissioner) to the trial Court to which reference has been made in para. 6 of the above shows that he was appointed by both the parties. It is repellent to common sense that a person of his social standing who was a D.M.G. Officer and retired as .Chief Secretary Punjab would make an incorrect statement before the Court. But when parties did not cooperate, he expressed his inability to proceed any further. Thereafter Ch. Hassan Nawaz, Joint Secretary Law and lastly Mr. Ehsanul Hague Bhalli, the then District and Sessions Judge were appointed Arbitrator by the trial Court. The objection with regard to notice under section 8(1) of the Arbitration Act, has duly been attended to by both the Courts. Since the petitioner has admittedly been appearing before the Civil Court and High Court at all stages and had even filed objection with regard to the arbitration agreement, the objection with regard to non-service of notice under section 8 of the Arbitration Act is of no avail.
This is in line with the law laid down in 1991 MLD 1438 and 1999 CLC 1005.
7. For what has been discussed above, the concurrent orders passed by the Courts below are neither arbitrary, or against the record, nor do they reflect any jurisdictional defect to, warrant interference in the Constitutional jurisdiction of this Court. The petition having no merits is accordingly dismissed.