ABDUL BASIT Versus MUHAMMAD ASHRAF DAR
The relevant facts for the decision of this civil revision are that the petitioners, wtio are husband and wife claimed to be owner of industry runs under the name and style of Kashma Aali Chemical Industries. The factory and the residential accommodation covered 8 Kanals of land situated in Mauza Khaki, Tehsil Ferozwala, District Sheikhupura. The respondent No. l pleaded that he had agreed to purchase the property and the petitioners agreed to sell the factory, residential house and other piece of land for total consideration of Rs.45 lacs and executed agreement, dated 8th of April, 1993. But the sale‑deed could not be completed and registered as their three properties were mortgaged with the National Bank of Pakistan, Begum Kot Branch, Lahore. It was pleaded that the petitioners took up the position that the mortgage amount should be paid by the respondent No. 1. The petitioners and the respondent ultimately agreed to resolve this dispute through Arbitration. Accordingly they executed agreement Exh.R.5, dated 5‑8‑1994 whereby they appointed the respondent No.2 as the sole Arbitrator for resolving the controversy between the parties. The respondent No.2 gave his Award, dated 30‑8‑1994 Exh.R.6. The respondent No.l thereafter, moved an application on 10‑10‑1994 under section 14/17 of the Arbitration Act for making Award rule of the Court. The notices were issued to the respondents for 30th of October, 1994. The petitioners appeared, submitted detailed reply and prayed that they have no objection if the Award being made rule of the Court.
2. The learned trial Court in this view of the matter accepted the petition, made the Award rule of the Court and passed decree in terms thereof, according to which, the respondent No.l was to pay a sum of Rs.6,34,843.81. The petitioners thereafter moved an application under section 12(2), C.P.C. on 22nd of January, 1995. The same was contested by the respondent No. 1.
3.The learned trial Court accordingly framed the following issues:‑‑
(1) Whether the petition is barred by time? O.P.D.
(2) Whether the affidavit filed alongwith the petition is not on behalf of the petitioners, if so, its effect? O.P.D.
(3) Whether the petitioners are estopped by their words and conduct to file this petition? O.P.D.
(4) Whether the petition under section 12(2), C.P.C. is not competent? O. P. D.
(5) Whether the petition has not been properly filed, if so, its effect? O. P. D.
(6) Whether the petitioners did not execute any Iqrar Nama for, the appointment of the Arbitrator and the Arbitrator has conducted the proceedings without their knowledge? O.P.P.
(7) Whether the petitioners did not appoint any counsel in the main case and the Vakalatnama as also the written reply, allegedly filed on their behalf, are forged, if so, its effect? O.P.P.
(8) Relief.
4. The petitioners appeared as AWA and A.W.2 while their son Abdul Aali appeared as A.W.3. The respondent No. l examined Arbitrator as R. W.1 while Muhammad Amin and Amir, marginal witnesses of Exh.R.5, as R.W.2 and R.W.3 and himself appeared as R.W.4.
5. The learned trial Court after hearing the arguments dismissed the application of the petitioners vide order, dated 20‑12‑1995, now this revision which was admitted to hearing. Notices were issued to the respondents but the respondent No. l appeared and contested the petition while the respondent No.2, Arbitrator, has been proceeded ex parte.
6. The learned, counsel for the petitioners argued that neither the petitioners agreed to refer the Arbitrator nor executed agreement Exh.R.5 nor engaged Abdul Khaliq Awan, Advocate to appear on their behalf in the application under section 14/16 of the Arbitration Act nor signed the power of attorney and reply. It is added that it was out and out the fraud played on the petitioners. It is added that the petitioners moved an application under Order XVI, Rule 14, C.P.C: for calling Faqir Hussain, Waseeqa Nawees, Mukhtar Malik, marginal witness and Abdul Khaliq Awan, Advocate, who allegedly signed the written reply to the application as Court‑witnesses but the application was dismissed simply as it was direction case and the period of four months was expiring shortly.
7. On the other hand, Ch. Muzammal Khan, Advocate for respondent No. l raised preliminary objection to the effect that the revision is not competent against the order passed on the application under section 12(2), C.P.C. In this behalf he has referred to Muhammad, Yasin v. Sheikh Hanif Ahmed and 4 others 1993 SCMR 437. It is added that the petitioners had not given any particulars of the alleged fraud in the application under section 12(2), C.P.C., and also failed to adduce any evidence and even fraud was not alleged in the statements made by the petitioners and their son. It is added that the application under Order XVI, Rule 14, C.P.C. was dismissed by detailed order, dated 20th of December, 1995. The petitioners have themselves closed their evidence and thereafter the client produced some of the witnesses from the list submitted by him. He was not under obligation to call upon any other witness. It is added that the application was made after winning over the said three persons. Even otherwise, Malik Abdul Khaliq Awan, Advocate represented the petitioners, therefore, they should have produced him but they did not even include his name in. the list of witnesses. It is added that the agreement Exh.R.4 is riot only signed by the petitioners but also thumb‑marked, therefore, the petitioners if genuinely denied the execution were bound to examine Handwriting Expert to prove their pleas but they did not make any effort and even name was not included in the list of witnesses.
8. The learned counsel for the petitioners while summing up the arguments submitted that the revision is competent. In this behalf he has referred to Government of Sindh and another v. Ch.. Fazal Muhammad and another PLD 1991 SC 1.
9. I have given my anxious consideration to the arguments and gone through the record, relevant provisions of law and precedent cases relied by the learned counsel for the parties. It would be seen from the arguments that the vital issues were Nos.6 and 7. The petitioners appeared as A.W.1 and A.W.2 and examined their son as A.W.3. On the other hand, the respondent No. l examined Muhammad Amin and Amir Ali, to prove Arbitration agreement Exh.R.5 besides his own statement. It is relevant to record here that agreement consisted of two pages. The petitioners have not only signed the pages but also thumb‑marked. In the circumstances best evidence available to them was testimony of Handwriting Expert and Finger Bureau, which they did not avail. Their own statements coupled with the statement of their son were entirely insufficient to discharge the onus of issue No.6. Similarly they failed to prove that neither they filed the written reply Exh.R.3 to the application under sections 14 and 17 of the Arbitration Act nor .they engaged Mr. Abdul Khaliq Awan, Advocate to represent them before the learned Civil Judge. Here again Handwriting Expert was the best evidence to show that written reply Exh.R.3 and the power of attorney in favour of Malik Abdul Khaliq Awan, Advocate did not bear their signatures. The application under section 12(2), C.P.C. did not contain any detail of the fraud alleged by the petitioners. It is a just ten line's application, which has hardly made out a case under section 12(2), C.P.C.
10. Now coming to the application under Order XVI, Rule 14, C.P.C. for summoning three Court‑witnesses. Suffice to record here that the respondent No. l was just to prove execution of the agreement Fxh.R.5. This was done by him examining A.W.2 and A.W.3 besides his own statement. He was not under any legal obligation to summon all the marginal witnesses and also the scribe of the document. Therefore their non‑production by the respondent No. l could not furnish basis for calling these persons as Court witnesses especially on the face of the plea of respondent No. l that they have been won‑over by the petitioners. The arguments that the application was dismissed by the learned Civil Judge for the simple reason that it was a direction case and its disposal was to be made very shortly. The learned trial Court in so many words said that the petitioners were intentionally delaying the matter as is clear from the following portion of his order:‑‑
11. Now coming to the issue No.2. The argument is that the application under section 12(2), C.P.C. was not supported by any affidavit of the petitioners themselves. It is argued that this was done mala fide to avoid comparison of their signatures. The learned trial Court has decided issues in favour of the respondent No. l on the ground that even after the objection the petitioners have not rectified the defect. It is difficult to agree with this specially when the petitioners were not directed and allowed time to cure this defect. Moreover, they have not relied on affidavit attached with the petition. This Court should have taken notice of this suit when the petition was presented without the affidavit at that juncture, the learned trial Court might have refused to entertain that application under section 12(2), C.P.C. until and unless affidavit of the petitioners was not attached in support thereof. Findings, therefore, on this issue are not sustainable. It is another matter when after going through the petition and the way if was made, one gathered an impression that this was only an effort to prolong the dispute.
12. The argument that the application under section 12(2), C.P.C. was not competent and in any case revision is not maintainable. Learned counsel for the parties in this behalf relied on the cases of Muhammad Yasin v. Sheikh Hanif Ahmed and 4 others 1993 SCMR 437 and Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 1. It is clear from both the judgments that the application under section 12(2), C.P.C. is competent as no procedure has been provided under the Arbitration Act to challenge the decree passed in terms of the Award. The clear cut distinction which has been brought out by these judgments is that if the challenge is not to the judgment, decree or order but to the Award itself the remedy would be under section 30/33 of the Arbitration Act and not under A section 12(2), C.P.C. but as Arbitration Act, 1940 contained no provision for challenging such decree or order on the ground of misrepresentation or fraud, therefore, the application under section 12(2), C.P.C. is competent. The application in the case in hand was of composite nature, therefore, it was competent. Suffice it is to refer hereto the concluding portion of the judgment in the case of Muhammad Yasin v. Sheikh Hanif Ahmad and 4 others 1993 SCMR 437 which reads as under:‑‑
"... In both these judgments the question whether a decree passed on the basis of the award can be challenged by an application under, section 12(2), C.P.C. was not considered. Sections 30 and 33 refer to only awards and not decree passed on the basis of the award. Under the Arbitration Act there is no provision for challenging such decree on the ground that it has been obtained by misrepresentation and fraud. Therefore, applicability of section 12(2). C.P.C. has not been excluded. In the present case the appellant had filed application under section 33 of the Act and section 12(2), C.P.C. It seems to be composite application for determination of the effect of the agreement as provided by section 33 and challenging the decree on ground of fraud and misrepresentation. The application, therefore, should have been considered on merits instead of dismissing it on technical ground that no application under section 12(2) was maintainable. From the above discussion it is clear that in the facts and circumstances of the case application under both the provisions was maintainable. We, therefore, allow the appeal and remand ,the case for hearing on merits."
The application under section 12(2), C.P.C. was competent, therefore, the revision is maintainable. No other issue was argued. The petitioners have failed to make out the case for interference in the revisional jurisdiction.
13. The upshot of this discussion is that the revision is dismissed with no order as to cost.
Q'.M.H./M.A.K./A‑6/L Revision dismissed.