Through this application under Order 23, rule 1, C.P.C. The petitioner/applicant has prayed that the petitioner may be permitted to withdraw the judicial miscellaneous application in view of the statement of learned sole arbitrator dated 2-10-2003.
2. In pursuance of the notice of this application, objections were filed on behalf of respondent No. 1 .
It was alleged that the withdrawal is misconceived and that the action is maliciously motivated.
The petitioner made all the attempts to prolong the arbitration in order to defeat the proceedings.
3. Learned counsel for the petitioners and the defendants Nos.1 and 2 have been heard.
5. It was contended on behalf' of the petitioners that the petitioners intend to withdraw the J.
Miscellaneous Application unconditionally which has. To be allowed as required under the law.
Learned counsel for the petitioners however, on instruction categorically states that the petitioners feel sorry for levelling wild allegations against the learned sole arbitrator Lt. General (Retd.) F.S. Lodhi, the defendant D.H.A. As well as Mr. Khalid Javed Advocate for. D.H.A. Learned counsel for D.H.A. Resisted the withdrawal, and in the alternate prayed for penalizing the petitioners.
6. Learned counsel representing the learned sole arbitrator however, prayed that in view of apology tendered on behalf of the petitioners, the remarks/allegations against his client be expunged.
7. The submissions made by learned counsel for the parties have been considered, and the relevant documents have been perused.
8. Bare perusal of the application reveals that the petitioners have clearly stated therein that they were withdrawing J. A M. Application in view of the statement of sole arbitrator.
While going through the statement dated 2-10-2003 filed by learned sole arbitrator/respondent No.2 it transpires that the learned sole arbitrator 'vehemently denied the allegations and insinuations levelled against him as baseless. He further stated in unambiguous terms that in view of those allegations he was not inclined to proceed as arbitrator. He however, prayed for deletion and expunction of allegations and insinuations levelled against him vide paras.6 to 12 of the main application/ petition.
9. Learned counsel for the respondent No.2/sole arbitrator has particularly drawn my attention to paras. 6 and 12 of the J. M. Application. As per the contents of para.6 of the application the sole arbitrator announced to proceed with one dispute only which was subject-matter of the suit.
However, perusal of the contents of para.12 reveals that it was alleged that the sole arbitrator was in collusion with the respondent and his counsel who were constantly misguiding the sole arbitrator.
10. Learned counsel for the petitioners has however, orally apologized in open Court for levelling such unwarranted allegations.
11. It hardly needs to be stated that undeniably learned sole arbitrator has coveted the constitutional office of Governor of a Province, besides occupying a prominent position in Pak Army. Admittedly, the name of Lt. General (Retd.) Sardar F.S. Lodhi was at S. No.1 of three names proposed by the petitioners for appointment as the sole arbitrator. Thus his appointment was made on the proposal floated by the petitioners themselves. But it seems that when the proceedings Commenced the petitioners felt uncomfortable. The apparent reason for such unease as disclosed in the counter affidavit filed by defendant No.2 and affirmed in the pleadings in main petition was that the sole arbitrator rejected the plea of counter-claim raised by the petitioners before him.Let it be brought on record, that the averments made in the main petition filed before this Court under section 11 of the Arbitration Act 1940 hardly disclose a genuine cause of grievance to the petitioners except wild allegations. Contents of the petition are below the required level of etiquette and norms of decency. It was utterly dismaying to note that there was no straightforward justification for frantically savaged allegations, which were devoid of substance. And the terrible irony is that by manipulating the situation the petitioners succeeded in getting the arbitration proceedings stayed. The petitioners. Thus nefariously exploited this Court for achieving their ulterior motives.
12. Learned sole arbitrator, on receipt of notice and upon going through the contents of the petition reached in a natural way. Having been exposed to undue embarrassment. Tantamounting to harassm ent, lie like any other self respecting and dignified person took a rational decision.
Accordingly he declined to act as a sole arbitrator. In that way the petitioners succeeded in defeating the arbitration proceedings which came to a halt on 4-9-2003. Thus the object of the instant petition was achieved. In the above narrated circumstances, it will not be difficult to comprehend, prima facie, that the petition was maliciously motivated it was based on distorted facts and was filed to accomplish vexatious object.
13. In view of the legal position that sub-rule (1) of rule 1 of Order XXIII, C.P.C. Entitles the petitioners to withdraw the petition, or abandon the claim, at any time there is no option except to allow the instant application. The application under Order XXIII, rule 1, C.P.C. Is therefore, granted.
Consequently the Judicial Miscellaneous application stands dismissed as withdrawn.
14. In view of the clear cut apology tendered and statement made on behalf of the petitioners allegations/insinuations made in the petition against the sole arbitrator respondent No.1 and their Advocate shall be deemed to have been expunged.
15. Be that as it may, I shall be failing in my duty if in the given circumstances of the case, the petitioners are allowed to go Scot free, while there are enough reasons to say that the petitioners approached this Court with soiled hands and a tarnished face tainted with malice. The petitioners are saddled with a cost of Rs.50,000 which shall be deposited with Nazir of this Court within two weeks of the passing of this order. The cost so recovered shall be utilized for High Court Clinic.
16. Needless to clarify that the affected party shall be at liberty to initiate action against the petitioners, if so advised, subject however, to the provisions of law.