WAJID ALI Versus LIAQAT ALI

This is an appeal against the judgment and decree dated 10‑7‑1994 passed by the learned Additional District Judge, Muzaffargarh whereby the judgment and decree, dated 11‑7‑1993 passed by the learned Civil Judge, Alipur was set aside.

2. Brief facts of the case are that the respondents Nos.2 to 6 plaintiffs filed a partition suit on 30‑4‑1984 in the Court of learned Civil Judge, Alipur against the appellants and respondent No. l who submitted joint written statement showing no adverse interest with each other, that the case remained pending in the trial Court about 10 years, ultimately the parties entered into an agreement according to which Haji Muhammad, Khalid was appointed Referee and the parties bounded themselves by his verdict. It was also agreed that the each party will retain his possession of the suit property but only compensation will be determined and assessed for the differential value of property held under possession. It was further agreed that Haji Muhammad Khalid's decision would be final, not challengable, liable to objection or further litigation. For the said purpose a stamp paper was purchased, executed, signed and produced in the Court with a separate application that the parties bind themselves as per decision of the Referee. On the same date parties and their counsels made a statement accordingly. As per agreement, compromise and order of the Court the said .Haji Muhammad Khalid made a statement in the Court alongwith his decision as a Referee on 5‑5‑1993. For more than 2 months the case remained pending in the trial Court for the purpose of adjudication on the point of court -fee. No one objected about the decision given by the Referee. In the light of the verdict of the Referee, the case was ultimately decreed on 11‑7‑1993. An appeal was preferred by only one of the co‑defendants/respondent No.l, namely, Liaqat Ali, which was accepted on 10‑3‑1994 and the case was remanded for fresh decision.

3. In case of Ghulam Farid Khan v. Muhammad Hanif Khan (1990 SCMR 763) where a dispute between the parties was referred to a Referee by Court on consent of the parties and the Referee has submitted his faisla' to the Court .in respect of reference whereupon the Court had passed a decree in accordance with the ' faisla' of the Referee. The question arose as to whether 'faisla' of the Refree could be treated as statement furnishing information within the meaning of Article 33, Qanun‑e‑Shahadat, 1984 or an award within the meaning of section 14 of the Arbitration Act, 1940 and the Referee in that case by his ' faisla' had not only divided the disputed property but even awarded cash amount to some of the parties by way of compensation on equitable considerations, the Hon'ble Supreme Court observed that Referee's 'faisla' therefore, could hardly be treated as a statement furnishing information within the meaning of Article 33, Qanun‑e Shahadat, 1984 and that the Referee, quite clearly understood his role as that of an Arbitrator and proceeded accordingly even though in keeping with the statements made by the parties, he described himself as a Referee and that 'Referees' 'faisla was thus, clearly an award which could not be made rule of Court without giving an opportunity to parties, to file objections thereto. The case of Ghulam Farid Khan v. Muhammad Hanif Khan 1990 SCMR 763; Muhammad Saleem v. Muhammad Akcam PLD 1991 SC 516; Himanchal Singh v. Jatwar Singh AIR 1924 All. 570; Subbaraju v. Venkatramaraju AIR 1928 Mad. 1025; Sera Narain Chaube v. Beni Madho Chaube AIR 1937 All. 701; Umrai Ali Khan v. Intizami Begum and others AIR 1939 All. 176; Akbari Begum v. Rehmat Hussain and others AIR 1933 All. 861; Rehmat and others v. Residents of Village and others 1988 CLC 1922; Chhabba Lat. v. Kallu Lal AIR 1946 PC 72 and Abdur Rehman v. Kalu Khan AIR 1935 All. 118 were referred to.

4. In the present case the difficulty arose with the learned trial Court as in the application for appointment of Referee the word written was ' SALIS' /Referee and in the agreement Exh. C‑2 the word ' SALIS' was written and thereafter it was cut and over it word Referee was written. The learned lower appellate Court .has very rightly appreciated the whole controversy and has rightly concluded that according to the report Exh.R‑1 the alleged Referee has opined that the property in dispute is indivisible and also fixed the value of the property as Rs.9,80,000 and also divided the property according to the shares of the parties and that therefore, the Referee has not furnished any information according to his knowledge but has determined the right of the parties and his statement does not come within the statement of Referee rather it was a decision by an arbitrator and to make it rule of Court giving all opportunity to the parties to file their objections was mandatory.

The appeal is, therefore, without force and the same is hereby dismissed and the order of the learned lower Appellate Court is upheld.

Q.M.H./M.A.K./W‑8/L

Appeal dismissed.