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Petitioner: PROVINCE OF BALUCHISTAN VS Respondent: Sardar MUHAMMAD USMAN KHAN
Court Name: Balochistan High Court Judge(s): Muftikhar-ud-Din Title: PROVINCE OF BALUCHISTAN vs Sardar MUHAMMAD USMAN KHAN Case No.: Civil Miscellaneous Appeals Nos. 2, 3, 4 and 5 of 1980 Date of Judgment:1985-11-04 Reported As: PLD 1987 Quetta 33 Result: Appeals dismissed
JUDGMENT
JUDGMENT ' This judgment shall dispose of Civil Miscellaneous Appeals Nos. 2, 3, 4 and 5 of 1980 as all of them have the identical facts and the common question of law are involved and were heard together. 2. The Province of Baluchistan has impugned the judgments and decrees passed by the Civil Judge hit Class, Quetta in Civil Suits Nos. 68, 69, 70 and 63 of 1976 whereby having considered the objections to the award made by the Arbitrator appointed by the District Judge, Quetta in proceedings initiated by the respondents under section 8/20 of the Arbitration Act the award has been made rule of the Court and decrees passed in terms thereof and the appellant ordered to pay the amount awarded to the respondents by the Arbitrator with 6% interest with quarterly rests from the date of the award i. e. 6th June, 1975 till the whole decretal amount has been realized. 2. The appeals arise out of the proceedings initiated by the respondents by filing applications on or about 12th November, 1980 under section 8/20 of the Arbitration Act which were registered as suits and were numbered as 68, 69, 70 and 63 of 1976, on being transferred to the file of the Civil Judge 1st Class, Quetta. In Suit No, 68 of 1976 the decree is for a sum of Rs, 4,00,103 in Suit No, 69 of 1976 the sum awarded is Rs, 5,85,150 in Suit No, 70 of 1976 a sum of Rs, 1,62,825 while in Suit No, 63 of 1976 the amount involved is Rs, 27,900. The award in all these cases were filed by the Arbitrator on 6th June, 1975. Appeal No, 2 arises out of the Suit No, 68, Appeal No, 3 out of Suit No, 69, Appeal No, 4 out of Suit No, 70 while Appeal No, 5 out of Suit No, 63. Ali these applications were filed through Babu Muhammad Rafiq as attorney in the Court of the District Judge and it was alleged that "since Babu Rafiq happened to be the Chairman, Town Committee Loralai, on account of some interested persons, in order to disrepute him and cause financial loss, disputes were created in respect of carriage, rates, specifications, measurements and material supplied to him without any legitimate
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basis, final bills were not prepared, nor dues paid as per terms of the contract. And if the respondent sticked to the dispute the same is referable to the arbitrator in accordance with the normal procedure and terms of contract which is being avoided, and in view of the above there is no course left but to approach the Court, to call upon the respondent to file the contract agreement bearing the clause of Arbitration within the purview of section 8/12 of the Arbitration Act." It was said that the cause of action for the application(s) last accrued about a week ago when the respondent (appellants herein) refused to refer the matter to the arbitrator. The valuation, of the matter was tentatively fixed at Rs, 100 and it was prayed that "the respondent (appellants herein) may kindly be called upon to file the agreement bearing the Arbitration Clause and refer the matter to the Arbitrator for decision". 3. The District Judge Quetta issued Notice t6 the appellant but no cause shown and in spite of the orders made by the District Judge and the undertaking given by the Government Pleader appearing for the Government and taking time for production of the agreement did not file the agreements (The minutes of the proceedings recorded on (1) 14-12-1973, (2) 2142-1973, (3) 11-2- 1974, (4) 9-3-1974, (5) 4-4-1974, (6) 6-5-1974 (7) 25-5-1974 speak for themselves). The patience of the District Judge was thus tested. Ultimately on 18`6-1974 the District Judge, Quetta passed the following order :- "The applicant with counsel and Government Pleader present. The Government has not filed any reply. Even the agreement has not been produced. Mr. Jaffer Nairn, Adfocate has been appointed as Sole Arbitrator. Tentatively Rs, 500 be deposited as his fee. To come up on 31-7-1974. (Sd.) Abdul Qadeer, District Judge, Quetta." ' The time for submitting award was extended by the Court on the requests made by the Arbitrator for reasons shown by him. On 30th June, 1975 the following order was recorded :- {{URDU TEXT}} ' The order passed on 21st July, 1975 reads :- {{URDU TEXT}} ' On 31-7-1975 the following order was recorded : {{URDU TEXT}} ' On the objections filed by the appellants the issues were framed, at being reproduced as they would be referred to and considered in the judgment :- (1) Whether the arbitrator has misconducted himself and 0 proceedings ? (2) Whether the award has been improperly procured ? (3) Whether the damages are within the scope of arbitration. If to what effect ? (4) Whether the objection filed by the applicant is barred by time? ' The evidence was recorded on different dates upto 20-12-1975 by the District Judge, Quetta, thereafter the suits was transferred to the Civil Judge 1st Class, Quetta where they were registered on 8-3-1976 and suit lumbered as stated above. Evidence produced on behalf of the Government was recorded. The Arbitrator was also summoned by the Court and his statement was also recorded and the objections to the award filed on behalf of the appellant were rejected, the decrees in favour of the respondent herein were passed in Suits Nos. 68, 69, 63 on 21-5-1977 by the Civil Judge Ist Class, Quetta while in Suit No, 70 the decree was passed on 23-7-1977. 4. The appeals were filed before the District Judge, Quetta on 17-8-1977 and 9-10-1977 but vide orders dated 5-12-1979 all the appeals lave been "ordered to be returned to the appellant for presentation to the competent forum". These appeals were thus presented in the High Court in 9- 12-1979. And alongwith the appeals applications under section 14 of the Limitation Act were filed on 9-12-1979. The office recorded objections on 15-12.1979 that (i) Certified copy of the judgment dated
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5-12-1979 passed by District Judge, Quetta to be filed, (ii) Certified copies of knnexures are not properly stamped (iii) Paging to, be made. These objections were removed on 3-4-1980. ' It is noteworthy that when the appeals were filed in the Court of the District Judge, Quetta each was stamped with court-fee of Re. 1 only. The appeals were refiled in the High Court with the same court-fee of Re. 1 but on 3.4-1980 a court-fee stamp of Re. 1 on each appeal was ;urreptitiously added without any permission from the Court. 5. The appellants have not challenged the orders passed by the District Fudge whereby it has been held that "no appeal" lies to the District Judge is the same memorandums of appeals have been refiled in the High court. 6. On receipt of the notice to appear in this Court the respondents leering filed objection on 18-3- 1982 and it was contended therein that the appeals were not validly presented in the High Court. The deficiency in payment of court-fee was pointed out and the bar of limitation pleaded and t was specifically urged that the court-fee payable being ad valorem the court-fee paid is deficient and since there is no request for permission to make good the deficiency the appeals are liable to be thrown out. The application filed by the appellant under section 14 of the Limitation Act vas also opposed by a formal reply and it was contended that the appeals lied in the Court of the District Judge, Quetta were also barred by time and were insufficiently stamped. (The court-fee stamp of Re 1 only was fixed in appeals before the District Judge) and since the appeals filed therefore the District Judge, Quetta were not competent and were not filed good faith and with due diligence by the appellants counsel "possessing experience ranging between 20/25 years". The requirements of section 14 of the. Limitation Act being non-existent the time spent in the Court of 'le District Judge, Quetta cannot be excluded. These applications of the respondents were formally replied and it was urged in reply that the order dated 5-12-1979 passed by the District Judge, Quetta were not correct orders and are not based on the correct enunciation of law, yet another application was made on 6-5-1982 and it was said therein that "in view of to judgment of this Court in case Province of Baluchistan v. Mir Gul (I), court-fee is payable", and it was prayed that the court fee may be etemtined to be paid by the appellant. (In the cited case the Province of Baluchistan has paid ad valorem court-fee). {{FOOT NOTE}} (1) PLD 1982 Quetta 52 {{FOOT NOTE}} 7. Since the contention raised in the present appeals about the payment of court-fee was opposed to the view in the deported judgment of Gul Hassan's case. I required the learned counsel for parties to address the Court on this aspect of the case. The Advocate for the appellant has brought on record the instructions he has received from the Court wherein he has been instructed to "base his arguments" on the case reported in 1980 CLC 2177. 8. Mr. Basharatullah, the learned counsel for the appellants has formulated the following grounds he has urged before me : - (a) That the appeals before the District Judge were competent and have been wrongly ordered to be returned. (b) That the wrong return of the appeals is a circumstance justifying the exclusion of time under section 14 of the Limitation Act. (c)Even if the order of the District Judge Quetta is validly passed it is a sufficient cause for condonation of delay. (d) That the application under section 8. Of the Arbitration Act is itself not competently filed as Babu Muhammad Rafiq was not the person authorised. (e)That the applications filed (under section 8 of the Arbitration Act) in respect of the cause of action that accrued in 1960 was barred by time.
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( f ) That no notice as is required under section 8 of the Arbitration Act was served on the appellant, as such the proceedings were not maintainable in law. (g) Applications under section 8/20 Arbitration Act could not be filed before the. District Judge as the valuation shown in the application did not warrant such an action (The valuation shown was Rs, 100). (h) Since there is no arbitration clause in the agreements involved in Appeals Nos. 2, 3 and 4 no arbitration could therefore be claimed. (i)The award of the arbitrators is without any evidence and thus the arbitrator misconducted, himself and the proceeding are bad in law. (j) The Arbitrator had no authority to award interest. (k) In case covered by Appeal No, 5 of 1980 there is no contract agreement at all. So, no application under section 8 of the Arbitration could be made nor the arbitrator could be appointed. Thus, the appointment of Arbitrator is without jurisdiction. 9. Before the merits of the contentions urged on behalf of the appellant are discussed, I have to deal with the legal objections raised on behalf of the respondent as the objections go to the root of the appeals. The objections about the valid presentation of the appeals and the insufficiency of court-fee paid thereon and question of Limitation are always to be decided first. The applications made under section 8/20 of the Arbitration Act were entertained by the District Judge as I am told that at the relevant time no Civil Judge 1st Class was functioning and the relief claimed was against the Provincial Government. The word. Appeal has not been defined in the Code of Civil Procedure. In Warton's Law Lexicon appeal has been defined as "The judicial examination of the decision by a higher Court of the decision of an inferior Court. Lord Westbury's description of appeal given in Attorney-General v. H. 7'. Sultan and others (1) as quoted by Fazal-e-Akbar, J. Of the Supreme Court of Pakistan is that "An appeal is the right of entering a superior Court and invoking its aid and interposition to redress the errors of the Court below". The District Judge has passed orders about the appointment of the Arbitrator who had filed award in the Court of the District Judge where the objections about the acceptance/rejection of the same were made and he had started, the consideration thereof and after framing the issues had examined th witnesses produced by the parties. I simply wonder how in such-state o facts the Provincial Government advised the Advocate to file appeals in th Court of the District Judge or should have accepted such an advice if given by the legal adviser. It does not stand to reason that the successor District Judge could sit in judgment over these proceedings in appeal. This aspect was so patent that it could not have been ignored. There can be no two opinions that the appeals in these circumstances could not be filed before the District Judge. This aspect is so evident that no mistake should have been made in the first instance and for this reason, time cannot be extended. A bona fide act is one done with due care and attention. 10. It has been shown in the memorandum of appeal that the "decree in terms of the award has been made and it is prayed that the "decree may be set aside". The proceedings initiated under section 8/20 of the Arbitration Act are under the cognizance of the Court. It is a litigious proceeding-cause may be shown against the application. The reference was in the course of this litigation. The award was duly submitted to the Court. Both parties objected to it. The Court decided all objections and in due course pronounced a decree in accordance with the award in terms of section 17 'of the Arbitration Act, which provides that if the Court sees no cause to remit the award and if no application has been made to set aside the award or if the Court has refused such application the Court shall after the time for such application has expired proceed to give judgment according to the award and it is enacted that upon the judgment so given a decree shall follow and shall be enforced in the manner provided for the execution of the decrees. The decree is to the effect that the respondent is to recover the sum of money as awarded by the arbitrator. The
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order/judgment made by the Court has the forte of the decree and is, in effect, a decree. This view is in accordance with the Ruling of Privy Council in Gludarn Muhammad v. Muhammad Hasan (2) which clearly lays down that an order made in a contentious proceedings is a decree. This is the view which was taken in Hari Mohan Singh v. Kali Prashad Chaliha (3). 11. It is obvious that in arbitration matters like suits for recovery of amount due on unsettled account it is not possible to claim a specific sum of money. Indeed the very object and the purpose of the proceedings is to have the amount examined by the Arbitrator and a decree passed by the Court for such sum as may be found due. It will thus be seen that the matter (under section 8 of the Arbitration Act) under consideration the value as given in the application is only approximate. Admittedly it is no precise, in the very nature of thing it cannot be so. It is fixed ex part( and as often as not, is nothing more than an intelligent guess at measurim: {{FOOT NOTE}} (1) PLD 1963 SC 147 (2) 1 L R 29 Cal. 167 (3) I L R 33 Cal. 11 {{FOOT NOTE}} an unknown quantity. Can it be said that the law contemplates that an inexact and uncertain figure fixed in the circumstances described above, is the only and final "value of the subject- matter". At the inception, therefore, the amount fixed is the value for the computation of the court- fee and this value is not fixed in variably and once for all but is liable to be altered under certain circumstances for we find it laid down in section 11, Court Fee Act that if on taking an account the Court passes a decree in excess of the amount at which the plaintiff valued the relief in the plaint, the decree shall not be executed unless the difference between the fee actually paid and the fee which could have been payable, had the suit comprised the whole amount, so decreed, shall have been paid to the proper officer. It follows, therefore, that in the event of the decree for a higher sum being passed in such a suit, the value as "determinable for computation of the court-fee is the enhanced amount so decreed by the Court and it is expressly laid down in the statute that the decree does not become effectual unless and until the deficiency has been made good. This being the value for computation of court-fee. It follows the provisions of section 8 Suit Valuation Act that value for purposes of jurisdiction must also protanto increased. It has been held by a Full Bench of Calcutta High Court in Iliatullah Bhujan v. Chandra Mohan Banerji (1) that where a plaintiff fixes a certain sum as the amount of his claim only approximately or tentatively and prays that the amount may be ascertained, the amount found by the Court to be due must generally be regarded as the value of the suit, for the purpose of determining the forum of appeal. The view that in suit where the value approximately and tentatively fixed remain inflexibly and irrevocably the "value of the subject-matter of the suit" and that it is this value which regulates the course of appeal in all cases was not accepted. In Kalu Ram v. Hanwant Bi (2). In Budha Mal v. Rallia Ram and others (3) it was held that it was the amount ascertained by the trial Court to be due to the plaintiff and not the sum at which he had valued his claim tentatively and approximately which should be regarded as the suit for the purpose of determjning the forum of appeal. This case was approved in Arura Mal Uttam Chand v. Makhan Mal Amir Chand and others (4). The Calcutta High Court in Kanti Chandra Tarafdar and another v. Radha Raman Sirkar and others (5) has held that Schedule II Court Fee Act was never intended to apply to a case where a person with a definite decree for a particular amount of policy against him seek to set it aside. It is thus clear that it is the decree which establishes the liability. For these reasons it has been correctly held by the learned District Judge that since the respondents claim in the Arbitration award has been determined at the amount much more than Rs, 25,000 the appeal filed before the District Judge was not competent.
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12. The memorandum of appeal is styled as memorandum of appeal from decree but it bore a court-fee stamp of Re. 1 only. The respondents took a preliminary objection that the appellant has not paid the proper court-fee and it is contented that ad velorum court-fee should have been paid on the memorandum of appeal in accordance with Schedule I of the Court Fees Act. Mr. Basharatullah Advocate, the learned counsel for the appellant on the other hand contends that the initiation of these proceedings being an application and not by a plaint. The memorandum of appeal {{FOOT NOTE}} (1) I L R 34 Cal. 954 (2) AIR 1934 Lah. 488 (3) AIR 1928 Lah. 157 (4) AIR 1930 Lah. 725 (5) AIR 029 Cal. 815 {{FOOT NOTE}} appears to have been treated as one coming under Article 11 of Schedule II of the Act which relates to a memorandum of appeal, when the appeal is not from a decree or an order having the force of decree. The contention raised by Mr. Basharatullah is the one that was considered by a Division Bench of the Calcutta High Court in Hari Mohan Singh v. Kali Prasad Chaliha and answered in these words :- "Now the present appeal is brought against a judgment and decree declaring that an award made on a reference to Arbitration by the parties themselves should be filed under the provisions of section 526 of the Civil Procedure Code. The decree is in terms to the effect that the plaintiff is to recover the sum of Rs, 3,248 and odd as awarded by the Arbitrators. An order directing that such an award be filed, it appears to us, an order having the force of a decree and is, in effect, a decree, and this view is in accordance with the Rulings of the Privy Council in Ghulam Khan v. Muhammad Hassan, which clearly lays down that an order made in a contentious proceeding under sections 525 and 526 of the Civil Procedure Code is a decree. The view which we take was also taken by Old Field, J. In Dayanand v. Bakhtawn Singh I L R 5 Ali. 333." ' It was held that an order directing such an award to be filed is a decree and an appeal from such an order is an appeal from a decree and ought to bear court-fee in accordance with Article 1, Schedule 1 of the Court Fees Act. ' Hari Mohan Singh's case was referred with approval in Gauri Shanker v. Anant Ram (1), and it has held that where a decree is passed in terms of an award on a reference under Civil Procedure Code. The court-fee payable on such appeal would be ad valorum under Schedule I, Rule 1 Court Fees Act, and Hari Mohan Singh's case and another case of Lala Dharam Das v. Ajudhia Prashad (2), was relied. The case of Zafar Hussain Rizvi (3), relied upon by Mr. Basharatullah is manifestly distinguishable for the reason that it is based on the assumption that the order passed by the Civil Judge 1st Class Quetta which is impugned in these appeals is not a decree or an order having the force of the decree. With great respect I dissent from this judgment and am inclined to adopt the view taken in 33 Cal. 11 and AIR 1926 Lah. 403 and hold that ad valorum court-fee is payable in these appeals and the amount of ad valorum court-fee is to be calculated according to Article 1 of Schedule I of the Court Fees Act. For the above reasons I concur with the view taken by this Court in Gul Hassan's case, wherein the Provincial Government of Baluchistan has paid ad valorum court-fee calculated according to Article 1 of Schedule I of the Court Fees Act. 13. The present appeals were filed in the High Court on 9-12-1979 with a court-fee of Re. 1. The later addition of court-fee stamp of Re. 1 was surreptitiously done on 3-4-1980 and it has been insisted by the learned counsel for the appellants that the court-fee thus made up i. e. Rs, 2 on each appeal is the court-fee which is payable
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{{FOOT NOTE}} (1) AIR 1926 Lah. 403 (2) 70 P R 1881 (3) 1980 CLC 2177 {{FOOT NOTE}} in view of the decision of the Sind High Court reported in 1980 CLC 2177 and there is no deficiency through no explanation whatsoever has been given for such addition. Certainly this is not authorised and cannot be treated as an honest attempt to complex wish the law, thus on 9-12-1979 when the appeals were filed in this Court the court-fee paid was only a fraction of the fee which the appellants admit is payable by them. This stand is inconsistent with the one adopted by the Baluchistan Province in Gul Hassan's case and also against the prayer of the appellant in application made on 6-5-1982 wherein it has been conceded that the court-fee is payable in view of the judgment of the Province of Baluchistan v. Mir Gul Hassan. Basically it is the duty of the appellant to affix correct and proper court-fee. Admittedly the appeals when filed in High Court, they bore the court-fee of. Re. I only and later stamp of Re. 1 was added in the expectation that it would not be noticed and in fact the office did not take notice of it but the respondents have objected not only to the manner in which it was surreptitiously added but have contended that the appeals are not properly presented and in this connection the learned counsel for the respondents has invited my attention to the provisions of section 4 of the Court Fees Act which expressly provides that no document shall be filed, unless in respect of such document there be paid a fee of an amount indicated in the Schedules as proper fee. Section 4 is imperative in its terms and makes it impossible for the Court to entertain a memorandum of appeal upon which the proper amount of court-fee has not been paid. In case reported as Ramzan v. Aliah Diwaya (1), it has been held that insufficiently stamped memo. Of appeal is just a paper. A Division Bench of the Karachi in Mst. Sudiqun Nisa's case (2), considered the question arising out of delayed payment of court-fee stamp and has taken the view that a memorandum of appeal cannot be treated as properly presented' so long,as the proper court-fee is not paid. To the same strain is the judgment reported in PLD 1970 Kar. 295. Sir Shah Muhammad Sulaiman, the Acting Chief Justice, in the case of Bajbhusham v. Tota Ram (3), held that a Court is not bound to accept a memorandum of appeal when it has been brought to its notice that the memorandum is insufficiently stamped. The concession contemplated by section 149, Cr. P. C. Cannot be claimed as of a right. This renowned jurist of the sub-continent refers to the practice of same Vakils to file appeals with insufficient court-fee stamps, knowing that they are insufficient with a view to save limitation. The learned Judge . Further proceeds to observe that such deliberate attempts to get round the…
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