MEER MUHAMMAD SHARIF vs Mirza MUHAMMAD ASHRAF AND 4 OTHERS

' This petition calls in question an order making an award a rule of the Court without giving an opportunity to the petitioner to file objections to it.

2. The facts are that on an agreement to refer the matter to arbitration, Khadim Hussain Arbitrator made an award on the 9th February, 1971. The respondent, Mirza Muhammad Ashraf, filed a petition for making the award a rule of the Court on the 7th May, 1971, on which notice was directed to be issued to the petitioner. Since the petitioner did not put in appearance, he was directed to be proceeded against ex parte on the 30th October, 1971. For the first time an order was passed that day directing the Arbitrator to file the award. The award was filed on the next date i. e. 14th December, 1971. The learned tri Court recorded the statement of the Arbitrator who presented the award formally before the Court and it was exhibited as Exh. A/2. Muhammad Ashraf respondent appeared as A. W. 2 and stated that the award was acceptable to him. On the basis of these two statements, the learned trial Court ordered the award to be made a rule of the Court.

3. The first question in this case is whether the revision petition is competent. I am of the view that there can be no objection to the maintainability of this revision petition in view of the circumstances of this case. Section 39 of the Arbitration Act provides for orders which are appealable.. One of the categories of the orders is where it is against the order setting aside or refusing to set aside an award. If the learned trial Court had issued notice after the filing of the award to the petitioner about the filing of the. Award and had given him an opportunity of raising objection within the time fixed by the Limitation Act, the matte would have fallen within the clause

(vi) of subsection (1) of section 3 of the Arbitration Act and the judgment would have been appealable, since the order would have amounted to an order refusing to set aside an award. But in the present case, that opportunity was never afforded. In these circumstances, it cannot be said that the matter fell within the scope of clause (vi) of subsection (1) of section 39. The only other remedy is by revision petition which has been pursued by the petitioner.

4. On merits this petition must succeed since it was incumbent upon the Court to serve a notice upon the petitioner about the filing of the award under section 14 (2) of the Arbitration Act, which provides B that after the filing of the award the Court shall give notice to the parties of such filing.

This notice is given to afford an opportunity to the parties to raise objection, if any, within the period of limitation, i. e. 30 days a provided by Article 158.

5. The revision petition is accepted with costs, the order and decree is set aside and the matter is remanded to the learned trial Court to give an opportunity to the petitioner to file necessary objections. . Case remanded.