MST. HUKUMZADA Versus SAMANDAROON KHAN

Facts relevant for the disposal of this revision petition, by the defendant/ petitioner, briefly stated, are that on 1‑12‑1982 Samandaroon Khan son of Muhammad Ayub Khan made an application in the Court of Senior Civil Judge, Bannu against Muhammad Aziz Khan, and others including Mst. Hukumzada respondent No.4, his sister in which it was alleged that respondent No.4 was the owner of 75 kanals 4 marlas of land which she inherited from her father. That there arose a dispute between him and his sister regarding the ownership and possession of the land. The parties to the dispute agreed to resolve it through the arbitration of respondents Nos. 1 to 3. Accordingly Arbitrators in pursuance of the agreement on reference gave their award/decision on 15‑8‑1982 whereby respondent No.4 was to get an area measuring 30 kanals only and she was to surrender the remaining 45 kanals 4 marlas of her ownership in favour of her brother. It was alleged by the plaintiff that arbitration award was accepted by the parties but in order to give effect to it in letter and spirit and for confirmation of his ownership and possession of the land measuring 45 kanals 4 marlas referred to above he filed a declaratory suit in the Civil Court on 4‑12‑1982 against her. However, when she was served in the suit she resisted it in her written statement, which necessitated the withdrawal of that suit with permission to file a fresh suit. After the withdrawal of that suit he made the present application under the Arbitration Act, 1940 for making the award rule of the Court. To that application the Arbitrators were also impleaded as respondents Nos.1 to 3.

2. Respondent No.1 one of the alleged Arbitrtators, in his replication admitted the facts given in the application while respondents Nos.2 and 3 and respondent No.4 in their joint written reply denied all the allegations made in the application. Respondent Nos.2 and 3 denied they having ever been appointed Arbitrators by the parties and having acted as such. They further denied having ever given any decision in the matter or made any award. Respondent No.4 after denying the allegation made in the application further stated that the applicant had earlier filed a suit for declaration in the Civil Court against her but the same was later dismissed as withdrawn. She categorically denied having entered into an arbitration agreement with the applicant and reference of the dispute to respondents Nos.l to 3. She also challenged the so‑called arbitration proceedings to be fraudulent, frivolous and collusive managed by the applicant to deprive her of the property, which she inherited from her father.

3. The learned trial Judge erroneously treating the application as a plaint framed as many as ten issues in the case as follows:‑

(1) Whether the plaintiff has got a cause of action?

(2) Whether 'the suit 'is bad for misjoinder of parties?

(3) Whether the suit, is incompetent in its present form?

(4) Whether the suit is based on fraud?

(5) Whether any arbitration proceedings have been done between the plaintiff and defendant No.4, if so, its effect?

(6) Whether in accordance with the decision of arbitration land measuring 45 kanals 4 marlas was given to plaintiff and he has also thumb‑impressed the decision of Arbitrators?

(7) Whether no partition of the suit property has been done between the plaintiff and defendant No.4, if so, its effect?

(8) Whether there was a dispute over the suit property between the plaintiff and defendant No. 4, if so, its effect?

(9) Whether the plaintiff is entitled to the decree as prayed for?

(10) Relief.

Both the parties led their evidence in support of their respective pleas. The applicant appeared as his own witness and produced Rashid Khan, Patwari Halqa (P.W.1), Muhammad Azim Khan (P.W.3), and Muhammad Afzal (P.W.4) and closed his evidence. Mst. Hukumzada respondent No. 4 appeared as her own witness and produced Muhammad Zaman D.W.2 and closed her evidence. The learned Senior Civil Judge, Bannu while giving his finding on issues Nos.5 to 8, which are material for the decision of the case, held that the applicant and respondent No.4 inherited the property from their father and it being joint gave rise to dispute. That both of them agreed to resolve dispute through the arbitration of respondents Nos.1 to 3. That on reference made to them (respondents Nos.1 to 3) the Arbitrators gave their award, which was accepted by the parties and was signed by Muhammad Azim, the husband of Mst. Hukumzada on her behalf. It was further held that the defendant failed to lead any cogent evidence in rebuttal of the allegations made by the plaintiff in his application (plaint). Having given the findings the plaintiff's application accepted and the decree prayed for was passed in his favour. Aggrieved by the judgment and decree Mst. Hukumzada defendant No.4 challenged it in appeal before the District Judge, Bannu but the same was dismissed by the learned District Judge vide his order dated 28‑5‑1985 which ,is impugned in this revision petition.

4. The learned counsel for, the respondent decree-holder raised two preliminary objections to the maintainability of this revision petition. Firstly, that revision petition is not competent against the judgment and decree passed in appeal from the original decree of the Court, in persuance of the award having been made rule of the Court, under subsection (2) of section 39 of the Act. Secondly that it the concurrent findings of facts arrived at by both the Courts below regarding the existence of an arbitration award are immune from interference in revisional jurisdiction even if it is held that the Court has got the jurisdiction to entertain the revision petition in the matter.

5. There is no force in both these objections. The first objection raised came for consideration in several decided cases before the superior Courts. The law has now been well settled that there is nothing in section 39(2) or section 41 of the Arbitration Act to debar the High Court from exercise of its powers under section 115 of the Civil Procedure Code. In Chamandas v: Gursuarandas Kapool (A I R. 1945 All. 146) after going through several reported judgment which need not be referred to here, their Lordships of the Division Bench concluded as follows:‑ "we are, therefore of opinion that there is nothing in section 39 or section 41 of the Act to deprive us of the powers conferred on us by section 115, C.P.C."

As far as the power and extent of the revisional Court under section 115, C.P.C. is concerned, with special reference to a question of fact determined by the Courts below, the bar alleged by the learned counsel for the petitioner is not unqualified and an absolute one. The High Court before forming its view that the Courts below have exercised the jurisdiction vested in it by law or have failed to exercise a jurisdiction so vested or have acted in the exercise of its jurisdiction without committing any illegality or material irregularity has to go into the merits of the case decided when the finding of fact given by the subordinate Court is challenged before it. There are numerous authorities in which, various High Courts interfered with the orders of the subordinate Courts in revisional jurisdiction on the grounds that the findings were either based on no evidence or there was misreading and non‑reading of the material evidence. Similar acts which amount to exercise of jurisdiction illegally or with material irregularity, by omission or commission, by the subordinate Court which prejudice the case of a party resulting in miscarriage of justice would require interference in exercise of revisional jurisdiction. Keeping in view the scope of, revisional jurisdiction and on going through the evidence led by both the parties in the case with the help of the learned counsel, and in the light of the arguments addressed, I have formed my opinion that the judgments and orders of both the Courts below are based on no evidence and as such are liable to be set aside.

6. In. the application made before the learned Senior Civil fudge, the respondent herein alleged that he and petitioner herein entered into an arbitration agreement 'for settling the dispute regarding their joint landed property through the arbitration of respondents Nos. to 3. That. there had been a reference to the arbitration of respondents Nos. 1 to 3 and in pursuance thereof, the arbitrators gave their award which was accepted by both the parties. However, all these allegations were denied by respondents Nos.2 and 3 (the Arbitrators) as well as by respondent No.4. Such being the case, it was incumbent upon the trial Court to have first, determined the factum of the existence of an arbitration agreement between the parties, in the light of the evidence of the parties., within the meaning of section 2(a) of the Arbitration Act, 1940, and then the nature of the dispute agreed, to be resolved through the Arbitrators and set for the terms of reference to the Arbitrators. Last of all, the trial Court was required to have adverted to the award, which was prayed to be made the rule of the Court.

7. Arbitration agreement is defined in section 2(a) of the Act as under:‑

"'Arbitration agreement' means a written agreement to submit present and future differences to Arbitrators whether a arbitrator is named therein or not."

The above definition would show that an arbitration agreement providing for settling of a dispute, present or future, must have been reduced into writing before making it basis for reference. It is not the case of the applicant nor is it alleged that an arbitration agreement was ever reduced into writing between the parties. There is also nothing `on the record to show the nature of the dispute which was agreed to' be referred to the Arbitrators. The terms of reference under such an agreement are also not given in the award placed on file. The learned Senior Civil Judge, however, ignoring these fundamentals for assuming jurisdiction under the Arbitration Law proceeded on assumptions and conjectures. The objections raised by the respondent No.4 before him that she never entered into an arbitration agreement with the applicant and that no reference was ever made to the arbitration of respondents Nos.1 to 3 have not been considered and determined judicially, I am unable to find, out wherefrom the learned Senior Civil Judge' gathered the impression and on what basis has formed his 'view that there existed such an agreement while taking cognizance of the matter.

8. It is regretted that even the learned District Judge before whom the above legal objections were specifically raised did not apply his mind to it and rushed to the conclusion that the "defendants are not denying the factum of the arbitration in clear words" and observed that "whatever then legal status of the award may be, the appellants have not objected to it when the said award was being exhibited, further observed that the factum of arbitration agreement is not denied in clear words." All these observations made by the learned District Judge are unwarranted on the face of the record. If the learned trial Judge had taken the trouble of going through the written statement and the evidence of the petitioner herein for forming his view in the matter, his conclusion would have been definitely altogether different. The mere fact that the document has been exhibited as an award would not absolve the Court of his duty to embark upon its basis and its legal existence under the law when questioned by the other party. In the written statement, all the allegations made in the application were specifically denied including the arbitration agreement, the appointment of respondents Nos.1 to 3 as Arbitrtators, reference of the dispute to arbitration of. respondents Nos.1 to 3 and the acceptance of the award. Even respondents Nos.2 and 3, the alleged Arbitrators, in their joint written statement did deny their appointment as Arbitrators and all subsequent acts attributed to them in the matter.

9. It may also be pointed out that Mst. Hukumzada is recorded as the owner of the land measuring 75 kanals 3 marlas, which she inherited from her father, as stated by the Patwari Halqa before the trial Court. This was the property which she inherited as her share in the property left by her father while the rest of the property devolved on her brother; the, applicant. The property has not been partitioned so far. It is also in the evidence that the plaintiff was managing her own property and had not appointed Muhammad Zaman as her attorney authorizing him to deal with the land which shatters the entire basis of the applicant/ respondent's case that her husband had agreed to the award. The irresistible conclusion which could be drawn on facts and circumstances of this case, is that the applicant who is the brother of the petitioner herein, by hook or crook, was bent upon depriving his sister' of the land which she inherited from her father and to achieve that end, he first filed a civil suit intending to get an ex parte decree but when she got notice of the suit and resisted it by filing her written statement withdrew it and he resorted to the present proceedings.

10. This being the position, when the applicant failed to prove the existence of an arbitration agreement and other steps required culminating in an award this revision petition must succeed. Accordingly on the acceptance of the revision petition, the judgments and orders of both the Courts below are set aside and the application made before the trial Court under the Arbitration Act, for making the award rule of the Court, is dismissed with costs throughout.

A. A./629/P

Revision accepted.