PROJECT DIRECTOR, PEOPLES PROGRAMME Versus MUHAMMAD SARWAR

The only law point requiring determination in this revision petition is whether the objections filed by the appellant on 1‑10‑1983 against the award of the Arbitrator which was filed in Court on 16‑6‑1982 could be treated to be within limitation.

2. Learned counsel for the appellant admitted that under Article 158 of the Limitation Act, the time limit for filing objections against the award is 30 days from the date of service of notice of the filing of the award in Court. He however, maintained that no notice in writing was served on the appellant about filing of the award, therefore, according to him, tire limitation did not start running merely because otherwise the appellant had knowledge of filing of the award in the Court. I am afraid, the contention has no substance. The award was filed in the Court on 1G‑6‑1982 in the presence of counsel for both the parties. On this date, learned Presiding Officer of the Court was on leave and the case was adjourned to 30‑6‑1982 and then to 11‑7‑1982 on which two dates also learned Presiding Officer of the Court was again on leave. On these two dates the presence of the learned counsel for both the parties has been recorded. On 5‑9‑1982 nobody on behalf of the appellant appeared in the Court, therefore, he was proceeded against ex parte and the case was adjourned to 8‑9‑1982 for arguments on the award. The case was adjourned for two or three dates and ultimately by order dated 25‑9‑1982 the learned trial Court made the award rule of the Court. The appellant made an application for setting aside the said ex parte order which application was accepted by order dated 27‑6‑1983 and a specific order was passed for adjourning the case to 26‑7‑1983 for filing objections against the award. The appellant did not file objections, therefore, the case was adjourned to 8‑9‑1983 on his request. On the said date again he did not file objections, therefore, on his request the case was again adjourned to 1‑10‑1983. It was on this date that the objections were filed. In view of these facts, learned counsel for the appellant could not succeed to satisfy me as to how the objections could be treated to be within limitation. The objection with regard to non‑issuance of written notice of filing of the award in the facts and circumstances of this case is not maintainable. It has been held in judgments reported as The Chairman, Railway .Board, Lahore and 2 others v. Hafiz Abdul Qayyum P L D 1984 Pesh. 285 and Kawalsingh Akbar v. Baldeosingh Akbar A I R 1957 Nag. 57 on which reliance has been placed by the learned counsel for the respondent, that where a party comes to know of the factum of filing of the award in the Court because when it was filed the said party was present, the limitation under Article 158 of the Limitation Act would start running from such date. On 27‑6‑1983, A the ex parte order dated 5‑9‑1982 making the award the rule of the Court, was set aside and the case was adjourned with the specific direction to the appellant to file objections against the award. The objections were filed on 1‑10‑1983, therefore, they have been rightly held to be barred by time both from 16‑6‑1982 and 27‑6‑1983.

3. Learned counsel for the appellant then argued, that the award itself was made and filed by the arbitrator beyond . period of four months prescribed by schedule of the Arbitration Act, therefore, it was a nullity and could not be made the rule of the Court. The argument has not impressed me. The instant case is a case of arbitration through intervention of the Court. The arbitrator was appointed by order dated 27‑7‑1978 on the application of the respondent made under section 20 of the Arbitration Act and arbitrator was directed to submit the award. The record of the trial Court shows that the case was adjourned from date to date for waiting the award of the arbitrator and in almost all the orders which were passed, the learned trial Court directed that reminder be issued to the arbitrator to file the award. These orders were passed in the presence of the learned counsel for the parties. It is manifest from the order sheet that no objection was raised by the learned counsel for the appellant regarding non filing of the award within a period of four months. In these circumstances, it can safely be held that the orders of the trial Court amounted ‑to extension of time from time to time for filing the award which the Court in its discretion could grant under section 28 of the Arbitration Act. This view finds support from judgment reported as Debir‑ul‑Din v. Amina Bibi and others 1925 Cal. 475 and Kh. Muhammad Usman v. Mst. Ghulam Fatima and others PLD 1967 Azad J &Kashmir 14 relied upon by the learned counsel for the respondent. The findings of the learned lower appellate Court in this respect also are unexceptionable.

4. Learned counsel for the appellant lastly argued that the grant of interest by the learned lower appellate Court from the date of decree up to the realization of the decretal amount is arbitrary., He maintained that in the application under section 20 of the Arbitration Act the respondent did not claim interest. He also pointed out that the respondent claimed interest in the claim filed by him before the arbitrator which was specifically disallowed, therefore, the learned appellate Court exercised discretion with regard to the grant of interest arbitrarily and the order has been passed mechanically, without hearing the appellant.

5. Learned counsel for the respondent on the other hand argued that under section 29 of the Arbitration Act, it is within the discretion of the Court to grant interest from the date of decree to the realization of the decretal amount, therefore, the order of learned lower appellate Court granting interest to the respondent is not open to any legal objection.

6. It is correct that under section 29 of the Arbitration Act the Court has been invested with a discretion to grant interest on the decretal amount from the date of decree up to the realization of the amount. The rule is firmly established that whenever a Court is to exercise discretion, it has to act judicially in the matter and is not to exercise discretion mechanically and arbitrarily. The order of the learned lower appellate Court in this case has been passed mechanically and not after applying its judicial mind keeping in view the attending circumstances. The claim regarding interest was disallowed by the Arbitrator. This fact should have been considered before exercising of discretion in favour of grant of interest after decree. In the application under section 20 of the Arbitration Act, the respondent did not claim interest for the period subsequent to the date of decree. I am not inclined to uphold the impugned order of the learned lower appellate Court so far as it relates to grant of interest from the date of decree onward.

7. For the foregoing reasons, the order of the learned lower appellate Court for making the award rule of the Court and dismissing the objection petition of the appellant against the award as barred by time does not suffer from any material irregularity and illegality, D therefore, the same is upheld. So far as the part of the impugned order granting interest to the respondent is concerned, the same is hereby set aside. As a consequence thereof the appeal stands partly accepted, without any order as to costs.

A.A./P‑50/L Appeal partly accepted