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Petitioner: Chaudhry HAQ NAWAZ CHOHAN VS Respondent: Chaudhry TARIQ AZAM And 43 OTHER
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad Khan Title: Chaudhry HAQ NAWAZ CHOHAN vs Chaudhry TARIQ AZAM And 43 OTHER Case No.: Civil Revision No. 69 of 1991 Date of Judgment:1994-02-19 Reported As: 1994 CLC 1530 Result: Case remanded
JUDGMENT
JUDGMENT Dispute in this civil revision arises out of execution proceedings which are pending finalisation in the Court of learned Senior Civil Judge, Rawalpindi, in pursuance to a final decree of partition passed, between the parties to this petition, regarding their joint property, which consists of urban land and built up immovable property, situated in different parts of the Rawalpindi City and for payment of mesne profit. 2. Briefly stated facts of the case out of which this civil revision has arisen are that the parties to this. civil revision are owners of joint property which consists of urban land and built up property which is situated in various parts of Rawalpindi City. Mst. Jehan Ara widow, Mst. Musarat Jahan alias Usmat-un-Nisa daughters of Ch. Shah .Nawaz son of Allah Dad who are respondents Nos. 9, 10 and 14 in this civil revision, Ch. Abdul Hameed; predecessor-in-interest of respondents Nos. 19 to 22 and Ch. Abdul Ghani, predecessor-in-interest of respondents Nos. 16 to 18, filed a suit seeking grant of a decree for possession through partition in the Civil Court of Rawalpindi on 22-10-1962. The ultimate preliminary decree was passed is the suit with consent of the parties vide judgment and decree dated 18-12-1969 wherein the parties to the suit were held to be entitled to the following shares in the joint property:--- (i)Plaintiffs No. 1 to 3 and defendants-Nos. 8 to 12= 1/8share (ii)Plaintiffs Nos. 4 to 5= 1/4th (iii)Defendants Nos. 1 and 2= 1/4th (iv)Defendant No. 3= 1/8thth
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(v)Defendants Nos. 4 to 7= 1/4th Besides determination of the shares of the parties while passing of the preliminary decree, learned trial Court also, appointed a Local Commissioner to determine the-mode of partition as well as the mesne profit. Subsequently, however, report submitted by the Local Commissioner, appointed in pursuance of the preliminary decree referred to above was set aside/modified and Muhammad Siddique Qureshi, Advocate was appointed : as Local Commissioner in order to complete the report of the previous Local Commissioner Ch. Fazal, Haq, Advocate who had since died. Muhammad Siddique Oureshi, Advocate, the. Local Commissioner, submitted his report and after hearing objections filed their against, which were not seriously pursued, the report was confirmed and vide judgment and decree dated 23-6-1980 a final decree passed in the suit which has since become final as none of the parties to the suit challenged the same in appeal or revision. 3. Execution proceedings were filed, to execute the aforementioned final decree before the learned Civil Judge, Rawtdpindi. .Against the execution proceedings some of the parties to the suit filed objections against the executability of the impugned decree, during the pendency whereof, withconsent of all the parties. Mr. Abdul Salam, Advocate was appointed as anarbitrator to decide the dispute and to make necessary corrections and adjustments regarding allocation of property amongst the decree-holders vide order dated 1-11-1981. Both the parties participated in arbitration proceeding without protest or objection. The sole arbitrator rendered his award on 18-3-1987 and filed it in the Court. It may be mentioned here that in the award instead of making of clerical or accidental adjustments on corrections, the arbitrator has almost varied the final decree in all material respects inasmuch as the property allocated to the parties in the final decree has been changed and substituted. 4. After the award was filed in the Court, the petitioner as well as some other affectees of the award filed objections against the same inter alia on the grounds of commission of misconduct by the arbitrator. It may be mentioned here that specific objections regarding jurisdiction of the arbitrator as well as lack of powers of tire learned Executing Court to appoint the Arbitrator have not been raised in the objection petitions, which have been contested. Learned Executing Court on the basis of objections and reply submitted thereto, settled the following issues:-- (1)., Whether objection petition filed by group No. 4 is incomeptent in view of preliminary objection No. 1 of written reply filed by Group No. 5? OP. Group No. 5? (2) Whether objection petition filed by group No. 4 is time-barred? OP Group No. 5? (3) Whether award in question is liable to be set aside for the reasons stated in the objection petition moved by group No. 4? (4) Whether objection petition filed by group No. 2 is incompetent in view of preliminary objection No. 1 of the written reply filed by group No. 5? OP. Group No. 5? (5). Whether group No. 2 is entitled to get the award modified for the reasons mentioned in the objection petition? If so, to what extent and with what detail? O.P. GroupNo. 2? .(6) In case issue No. 5 is not proved, whether group No. 2 is entitled to get the award referred back for the reasons mentioned in the objection petition? If so, with what directions? 4-A. Vide order dated 7-9-1987, the objection petitions were dismissed and the award was made as a rule of the Court on the basis whereof final decree already passed in the suit was almost superseded and a new final decree was prepared in accord with the award, on the basis whereof further execution proceedings had to proceed further. Aggrieved of this order the petitioner as well as Ch. Abdul Waheed and others filed two separate appeals which have been dismissed by a consolidated judgment dated 10-12-1990 passed by the learned Additional Sessions Judge, Rawalpindi. The learned Lower Appellate Court has held that the objections raised against the award are not proved and that the executing Court has rightly superseded the final decree passed in the main suit, hence, this civil revision has been filed, to challenge the aforementioned order
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passed by the learned executing Court which has been affirmed in appeal, by Ch. Haq Nawaz Chohan, the objector, who is petitioner before this Court. 5. Kh. Muhammad Yousaf Saraf, Advocate has appeared on behalf of petitioner whereas Malik Muhammad Jaffar, Advocate has appeared on behalf of respondents Nos. 1 to 4 and 8. Mr. Muhammad Ibrahim Satti, Advocate has appeared for respondent No. 13. Mr. Mansoar Ahmad, Advocate has appeared on behalf of respondents Nos. 18 and 20 whereas Mirza Anwar Baig, Advocate has appeared on behalf of respondent No. 44. None has appeared on behalf of other respondents who are proceeded against ex parte. In support of this revision petition Kh. Muhammad Yousaf Saraf, Advocate has raised the following contentions:-- (a) That during the course of execution proceedings the learned Executing Court had no lawful authority even by the consent of the parties to appoint the arbitrator, to decide the dispute between them which relates to executability of the decree. In support of his contentions learned counsel has placed reliance in case of Moradhwaj, Decree-holder v. Bhadur Das judgment-debtor (AIR 1955 All. 353). (b) That the learned Executing Court could not have gone behind the decree arid as the impugned award which has been made as a rule of the Court has resulted in variation of the final decree passed in thesuit in its material respects, the same could not have been made as rule of the Court and a decree passed in accord therewith. The arbitrator appointed by the Executing Court also did not have jurisdiction to go behind the decree. In support of his contention learned counsel has placed reliance on the following cases:-- (1) Muhammad Sharif v. Jalaluddin (1971 SCMR.594). (2) Syed Riaz Ahmad Shah and another v. Dayal Singh College TrustSociety and another (1972 SCMR 237). (3) SA. Latif v. Nadir Khan (PLD 1968 Lahore 144). (4) Krishnaya Parbhaya Chintalwar and others v. Meghraj Paparam Tefi . (AIR 1940Bombay 10). (5) Abdul Ahad v. Brig Narain Rai (AIR 1935 All. 269). (c) That the award rendered by the arbitrator, even if appointed byconsent of the parties, cannot be treated as a settlement or adjustment of the dispute outside the Court as all the parties affected thereby had not given consent thereto after the same was rendered and filed in Court and the petitioner as well as certain other affedees have rather challenged the same by filing of objections in writing, therefore, value of the award in question at the most shall be deemed to be of an award having been rendered by an arbitrator appointed without intervention of the Court and as the same has not been consented to after the same has been rendered and filed in the Court, it is of no legal value and is nullity in the eyes of law, hence could not have been made as a rule of the Court and impugned decree could not have been passed on the basis thereof, learned counsel in support of his contention has placed reliance on the provisions of proviso to section 47 of the Arbitration Act as well as law declared in the following cases: (1) Hashmat Ali v. Muhammad Ali etc. (1982 CLC 2377). (2) Asmatennessa Bibi v. Arju and another (PLD 1967 Dacca 603). . (3) Allah Bakhsh v. Mst. Shamshad Begum and 2 others (1990 MLD 1937). (4) Moradhwaj, Decree-holder v. Bhudar Das (AIR 1955 All. 353). 6. Elaborating his contentions in the light of statutory provision on the subject and law declared in the judgments cited by him, learned counsel has argued that an arbitrator can only be appointed during the pendency of a suit and as the "execution proceeding" do not fall within the definition of "suit", therefore, the Executing Court has no lawful authority to appoint an Arbitrator as per provisions of section 2(2) read with section 21 of the Arbitration Act, even by consent of the parties because the inherent jurisdiction cannot be conferred upon a person or authority by consent and further that the award in question having been objected to after the same was rendered/filed in
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Court, is nullity in eyes of law and the same could not have been made as a rule of the Court, particularly when the award in question has varied the final decree passed in the main suit in its material respects, by changing of allocated properties in decree by the trial Court, which has not been challenged by either of the party thereto and had since become final. Therefore, according to the learned counsel the order of appointment of the Arbitrator, subsequent proceeding taken and award rendered by him, the proceeding taken of the learned Executing Court on the basis thereof by making the award as a rule of the Court, superseding the .final decree passed in the suit and orders of dismissal of objection petition filed by the petitioner affirmed in appeal are illegal and without a lawful authority. Hence, he prays that civil revision may be accepted and the impugned proceedings as well as the orders may be set aside and the matter may be remanded to the learned Executing Court for decision thereof from the stage at which the matter was illegally referred to the arbitrator strictly in accordance with the law, within the specified 'period of time. 6-A. As against the above arguments, addressed by the learned counsel for the petitioner, learned counsels appearing for the respondents have conceded that there is no provision in the Arbitration Act or C.P.C. according to which an arbitrator could be appointed by the Executing Court to decide the dispute in relation to the execution proceedings. They have, however, argued that decision of the question raised during the execution proceeding falls within the exclusive jurisdiction of the Executing Court which includes executability of the decree sought to be executed which necessarily includes the necessary correction and consequent adjustments, therein. They hence contended that as during the course of execution proceedings the dispute has arisen which had necessitated some corrections and adjustments regarding the properties allocated to the parties in the final decree, same had to be determined decided by the learned Executing Court in order to further proceed with the execution proceedings. It is further contended that parties to the Us are at liberty to adopt any mode of trial for decision of their dispute. Consequently they consented to get their dispute decided through the mode of appointment of Sole Arbitrator, who conducted the proceedings in presence of the parties including the petitioner who participated therein without raising a little figure against the competency of the arbitrator to proceed with the matter, therefore, after the award was rendered and the petitioner was dissatisfied therewith, he could not be allowed to approbate and reprobate by raising objections against the award on the ground that the dispute could not have been referred to the arbitrator and that he had no jurisdiction to decide the same. Learned counsels further contend that this objection was not even raised either before the learned Executing Court in the objection petition filed against the award nor was raised during the course of appeal filed against the order of dismissal of objection petition. Consequently the petitioner cannot be allowed to raise the objection against the order of appointment of arbitrator and competency of proceedings conducted and legality of award rendered by him, on the ground of lack of jurisdiction. According to the learned counsels, the petitioner having acquiesced the jurisdiction of the arbitrator and having participated in the proceedings held by him, the principle of estoppel and acquiescence will bar the petitioner to raise the above mentioned plea. In support of their contentions in this behalf they have placed reliance on the following cases:- (1) Sher Muhammad and another v. Munir Ahmad and 2 others (1978 SCMR 167). (2) Abdul Wahab and others v. Habib Ali and others (PLD 1969 Lah. 365). (3):bioti Lal Banker (dead) by his legal representative v. Maharaj Kumar Mehmood Hassan Khan (AIR 1968 SC 1087). (4)Mst. Shamim Akhtar v. Najma Baqai and 3 others (PLD 1977 SC 644). (5)M/s. Qamaruddin Ahmad & Co. v. Haji Din Muhammad and another (1970 CMR 402). (6)Province of Sindh and another v. S. Zaheeruddin Hussain (1982 CLC
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175). (7)S. Zahir Hussain v. Province of Sindh and another (1981 CLC 379). (8)Haji Muhammad Asghar v. Malik Saah Muhammad Awan and another (PLD 1986 SC 542). (9)Province of Punjab and another v. Industrial Machine Pool (PLD 1978 Lah. 829). (10) Haji Ghulam Mohyuddin v.,Federation of Pakistan (PLD 1967 Lahore 204). (11) Maqboolur Rehman and 2 others v. Muhammad Iqbal Khan and 9 others (1983 CLC 38). (12) Mian Bashir Haider v. Mrs. Nur Jehan Kirmani (1984 SCMR 730). (13) Muhammad Ijaz and 3 others v. M. Khurshid Malik and 4 others (1986 CLC 2270). . (14) Rehmat etc. v. Residents of Deh etc. (1988 CLC 1922). (15) Muhammad Itbar Khan v..Fazal Hussain and 3 others (PLD 1990 Lahore 116). (16) Allah Baksh v. Mst. Shamshad Begum and 2 others (1990 MLD 1937). Learned counsels for the respondents have next contended that arguments of the learned counsel for the petitioner to the effect that the Executing Court could not go behind the decree and that the arbitrator could not have varied the same, is errpaeous and is misconceived. It is contended that since the dispute regarding executability of the decree is to be decided by the Executing Court, all the questions in relation thereto including variation and amendment therein, are within the competency of the Executing Court and hence the sole arbitrator appointed by consent of the parties also had the jurisdiction to vary the decree in order to settle the dispute raised before the Executing Court which had been referred for decision to him. In support of their contention learned counsels have placed reliance on the following cases: (1)Muhammad Latif v. Muhammad Hartz and others (PLD 1954 FC 184). (2)Mat. Shamim Akhtar v. Najma Baqai and 3 others (PLD 1977 SC 644). (3)Hemanta Kumar Ghose and others v. Rajendra Mondal and others (AIR 1935 Calcutta 619). (4)Ganesh Prasad Agarwalla and another v. Monohar Lal Mullick and another (AIR 1940 Calcutta 202). The arguments raised by the learned counsel for the respondents is that this litigation had started in the year 1962. The final decree was passed in the year 1980. The matter is before Executing Court for the last about 14 years and in case on the basis of technicalities, the impugned proceeding and the orders are set aside and the case is remanded to the learned Executing Court, it will take long time to finally settle dispute between the parties. Hence in view of the above as substantial justice has already been done in this case, this Court may not interfere with the impugned orders in exercise of revisional jurisdiction, in view of law declared in following case:-- (1)Messrs Ghulam Farid, Muhammad Latif etc. v. The Central Bank of India Ltd., Lahore (PLD 1954 Lahore 575). (2)Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others (PLD 1970 Lahore 412). (3)Mst. Fazal Begum v. Bahadur Khan and others (PLD 1983 Lahore 365). . 7. In reply to the above arguments learned counsel for petitioner has reiterated his arguments to the effect that: jurisdiction cannot be conferred upon a person or forum even with consent of the parties, if it did not otherwise possess under the law. He has contended that as the matter could not have been referred to the arbitrator by the executing Court, the order of reference being coram non judice, all the subsequent proceedings taken by the arbitrator as well as by the Court on the
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basis of award submitted by him are also coram non judice, therefore, the objection of jurisdiction which is purely of legal nature even if not raised in the original objection petition as well as before the Lower Appellate Court, can legally be raised for the first time in the civil revision as it goes to the root of the case. In this behalf learned counsel has placed reliance on the following cases:-- (1)Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC 690). (2)Ramlal Hargopal v. Kisanchandra and others (AIR 1924 PC 95) 1842-1843 (3) M/s. Malik Muhammad Azeem and Bros. v. Pakistan, through Secretary, Pakistan P.W.D., Islamabad and another (PLD 1993 Quetta 99). (4) Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC (Pak.) 104). Learned counsel has further contended that as the impugned reference, the proceedings, the award, the subsequent orders, decree passed by the Executing Court, orders of dismissal of objection petitions which have been challenged in revision, being patently illegal and without jurisdiction, consent of the petitioner and the parties to the suit referring the matter in dispute to the arbitrator and the participation in the proceedings before him do not constitute estoppel or acquiescence as there is no estoppel against the statute and an order without jurisdiction cannot be protected on the ground of estoppel. In support of his contention, learned counsel has placed reliance on the following cases:-- (1) F.J. Ramgarts (Pakistan) Ltd. v. Pakistan Steel Mill Corporation (1987 CLC 2198). (2) Vasireddi Srimanthu and others v. Devabhaktuni Venkatappayya and another (AIR 1947 Madras 347). (3) Chief Engineer, Building Department, Provincial P.W.D., Govt. of Sindh v. M/s. Pakistan National Construction Co. (PLD 1981 Karachi 553). (4) Bahadar v. Mirza Abdul Qayyum and another (PLD 1969 Lahore 636). (5) Zabetary Khan v. The State (PLD 1972 Lahore 196). (6) Central Cooperative Bank Ltd., Barh. v. Dasrath Pandey (AIR 1940 . Pat. 406). (7) Mirza Abdul Hamid and another v. The Custodian of Evacuee Property and another (PLD 1969 Lahore 404). (8) M/s. Farid Sons Ltd. v. M/s. S.M. Fazail and Company (PLD 1954 Sindh 247). . 8. As regards the arguments of the learned counsel for the respondents to the effect that since justice has been done, therefore, this Court may not interfere in revision. Learned counsel contends that substantial justice means justice to all the parties to the lis and not a decision in favour of some of the parties alone. As in the case in hand the final decree passed in the suit has been varied to the detriment of the petitioner, it cannot be said that substantial justice has been done in this case. He, therefore, contends that the judgments cited at Bar by the learned counsel for the respondents are distinguishable on facts of this case and do not advance their cause, hence, civil revision is liable to be accepted. 9. In order to appreciate the arguments of the learned counsel for the parties and to determine the issues raised, relevant provisions of statutes and brief resume of the case-law on the subject are reproduced as under:-- ARBITRATIONACT Section 2(2) "`Court' means a Civil Court having jurisdiction to decide the question forming the subject-matter of reference if the same had been the subject-matter of a suit, but does not, except for the purposes of arbitration proceedings under section 21, include a Small Cause Court;" Section 21 "Where in any suit all the parties interested agree that any matter in difference between them in the suit shall be referred to arbitration, they may at any time before judgment is pronounced apply
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in writing to the Court for an order of reference." Section 47 "Subject to the provisions of section 46 and save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder: Provided that in arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending." GP.C Section 47 "All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit." xxxxxxxxxxx (2) The Court may, subject to any objection as to limitation or jurisdiction, treat proceedings under the section as a suit or a suit as proceedings and may, if necessary order payment of any additional court-fee. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court." Order IV, rule 1 "When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified: Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim." Order XXI, rule 10 "Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been set under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof." RESUME OF CASE-LAW 10. In case of Moraduwal v. Bhudar Das (AIR 1955 All. 353) which is a Full Bench judgment and is applicable on all fours to the facts and .circumstances of this case where the Executing Court had appointed an arbitrator by agreement between the parties to decide the controversy in relation to execution proceedings, the question was referred to a Full Bench for decision as to whether the appointment of the arbitrator by the executing Court was lawful and as to what is the value of the award submitted by the said arbitrator? Their Lordship of the Full Bench after taking note of almost all the previous judgments on the subject have held that the executing Court has no jurisdiction to refer the dispute during the course of execution proceedings to an arbitrator and further that the award rendered in pursuance of reference to such an arbitrator appointed by the Executing Court even by consent of parties cannot be considered even as adjustment or settlement of a dispute outside the Court as all the parties had not consented thereto, after the award had been rendered and filed in Court. In the said report at pages 358; 360 and 361, their Lordships have held as under:- - "Which is the Court in which the award under Chap. II and an application under Chap. III shall be filed? According to the definition of the word `Court' as given in section 2(c) it is the Civil Court having jurisdiction to decide the questions forming the subject-matter of the reference, if the same had been the subject-matter of a suit." There can be no doubt that in Chaps II and III it must be a Court of original jurisdiction and the word `suit' in the definition of `Court' and in section 20 of Chap…
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