' Seemingly aggrieved from order dated 27-3-2002, whereby the learned trial Court dismissed petitioner's application "for striking out and/or amendment of existing issues and/or addition of new issues, under Order XIV, rule 5, C.P.C, and for review of the order dated 19-11-2001" the petitioner company has assailed the said order through filing the present revision petition.
2. Precisely stated the facts of the case, as discernible from the available record, are that the respondent filed a suit for recovery of certain amounts, as liquidated damages and damages, against the petitioner, along with an application under section 33 of the Arbitration Act. Confronted with the said proceedings, the petitioner filed an application under section 34 of the Arbitration Act, with the prayer that the proceedings in the suit be stayed and the parties may be directed to pursue the arbitration before ICC in accordance with ICC Rules. The Said application was contested by the respondent through filing its reply and ultimately the learned trial Court, vide order dated 19-11-2001, framed the following issue:-- ' Issue
(1) ,Whether both the parties agreed to extension of time regarding disputes Nos.1 and 2, which was adjudicated in Engineer's decision( on 29-2-2000?
(2) Relief.
' Feeling dissatisfied by the said order, the petitioner filed the application for striking out, amendment of additional issues, for the addition of new issues and for review of order dated 19-11- 2001, which application was resisted by the respondent and the learned trial Court dismissed the said application, vide order dated 27-3-2002, hence the present revision petition.
3. Learned counsel for the petitioner has contended that the issue framed by the learned trial Court, on 19-11-2001, does not arise from the pleadings of the parties and, therefore, the said issue be struck off. He has further submitted that the learned trial Court was obliged to frame the preliminary issues as cast by the petitioner, but the same were not framed. He has reinforced his arguments by submitting that in any case the impugned order is not sustainable in law, therefore, both the ,orders dated 19-11-2001 and 27-3-2002 :May be set aside. Conversely, the learned counsel for the respondent, while refuting the aforesaid contentions;- has submitted that the issue was correctly framed on 19-11-2001 by the learned trial Court and in fact while dismissing petitioner's application, vide impugned - order, the learned trial Court has observed that the preliminary issues, as desired by the revision petitioner, will be framed after the decision .Of the issues already framed, thus according to the learned counsel no prejudice has been caused to the petitioner.
4. The petitioner, through the filing of the present revision petition, instituted on 2516-2002, has called in question orders dated 19-11-2001 and 27-3-2002. As regards order dated 19-11-2001, the petitioner did not challenge the same at an appropriate stage and within the limitation period prescribed under the law. According to second proviso to 'section 115(1), C.P.C, revision petition is' to be filed within 90 days of the decision of the subordinate Court. Undoubtedlx, the petitioner did not challenge the foriner order within the limitation period and now the present revision petition, against the said order, has become barred by time. In view 'whereof, the petitioner is now precluded from challenging the ordei dated 19-11-2001, as the said order has attained finality having not been challenged by the aggrieved party within the limitation period provided under the law.
5. Now coming to the issue framed on 19-11-2001, as noted above. The case of the petitioner is that the parties mutually agreed that time for giving notice or time for filing the arbitration was extended up to 30-4-2000. It would be appropriate to reproduce the relevant portion from the petitioner's application, filed for striking out/amending of issues, which is as follows:-- "... It is also an admitted position that the time for giving notice (as per the applicant/defendant) or the time for filing the arbitration (as the respondent/plaindff) was extended up to 30-4-2000. It is also admitted that the notice requiring arbitration was given on 22-4-2000 and the request for arbitration was actually filed on 27-4-2000, within the extended time. Reference is made to para.13 of the plaint and paras.9 to 11 of the application under section 33. This fact is also admitted in para.9 of the application under section 34 and its reply."
' Against the said stance of the petitioner, the version of the respondent, as highlighted in its reply, is that failure on the part of the aggrieved party to file a request for arbitration within thirty days from the date of the decision of the Engineer would disentitle the said aggrieved party kom resolving the dispute through arbitratiok-For ready'reference the relevant portion' of the reply of the respondent is reproduced below:-- "Hence, if a dissatisfied party wishes to resolve the disputes (which had been raised before the Engineer under Clause 67 of the Contract) and/or challenge the decision of the Engineer (given under Clause 67 of the. Contract) in arbitration, it has only a period of thirty days from the date of the receipt of the decision of the Engineer within which to file a Request for Arbitration before the Secretariat of the ICC. Failure on the part of the aggrieved, party to file a Request for Arbitration within a period of thirty days from the date of the receipt of the decision of the Engineer under Clause 67 Of the Contract, would disentitle the said aggrieved party from resolving the said dispute
(s) through arbitration as the same would stand aborted and abandoned."
It flows from the above that on the said proposition both the parties are at variance. Under the law every material proposition affirmed by one party and denied by other shall form the subject of distinct issue. The learned trial Court has comprehended the real controversy between the parties and, after recording the respective contentions of the parties, rightly framed the issue on 19-11-2001, which order is not open to exception. Additionally, the same was also not challenged by any of the parties and, as noted above, has attained finality.
6. Now turning to order dated 27-3-2002. Upon the examination of the said order, I find that although the learned trial Court dismissed petitioner's application, yet it simultaneously held that the proposed preliminary issues in the application will be framed after deciding the issues already framed. It would be appropriate to reproduce the operative part of the impugned order, which reads as follow:-- "I have gone through the pleadings of the partiesandam of the humble view that issue was properly framed for resolving the controversy between the parties and the proposed preliminary issues in the application will be framed after deciding the issue already framed on 19-11-2001, if deemed necessary." .
' It flows from the above that the learned trial Court has, in fact, acceded to the request of the petitioner regarding the framing of the preliminary issues and has held that the preliminary issues will be framed after deciding the issues already framed. Needless to add that the respondent did not challenge the said order, meaning thereby that they are not aggrieved by the said findings of the learned trial Court.
' The obvious result is that after the decision the issue framed on 19-11-2001, the learned trial Court shall frame the preliminary issues, as narrated in petitioner's application. In the present set of circumstances, the petitioner should feel contended, as its request for framing of preliminary issues has been allowed by the learned trial Court with the reservation that firstly the issue already framed will be decided.
7. In the above perspective, I have examined the impugned order dated 27-3-2002 and find that the learned trial Court, after adverting to the facts of the case and law on the subject, has rightly decided petitioner's application, while observing that the proposed preliminary issues in the application will be framed after deciding the issues already framed on 19-11-2001. To my mind, the learned trial Court did not commit any illegality or material irregularity in passing the impugned order and, thus, I find no legal justification for the invocation of the revisional jurisdiction of this Court.
8. The learned trial Court, in exercise of its discretionary powers, has decided petitioner's application, which exercise of discre tion is neither arbitrary nor fanciful and the same has been exercised according to the settled principles regarding the exercise of discretion, therefore, I am not inclined to interfere in the impugned order. It has been held in Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 that discretionary orders of subordinate Courts cannot be interfered with unless found fanciful and arbitrary.
9. Upshot of the above discussion is that the present revision petition is devoid of merits, thus, stands dismissed with no order as to costs. The learned trial Couii is directed to decide the issue, framed on 19-11-2001, within a period of two months from today, after hearing the parties and of course in accordance with law.