MUHAMMAD ASLAM Versus BEHRAM KHAN.
ORDER
1. ABDUL KADIR SHAIKH, J.‑‑ This petition arises out of a suit filed by the petitioners against the respondents for possession of a share in the suit‑property which according to their claim devolved upon them by inheritance from Mst. Noor Bibi. The suit was resisted by the respondents on the ground that they had purchased the suit‑property from Mst. Noor Bibi during her lifetime. During the pendency of the suit, the dispute was referred to Arbitration by an agreement between the parties, and according to the judgment of the High Court, reference was made by the Qazi who was trying the suit to Arbitrators. The Arbitrators ultimately gave an Award and dated 19‑4‑1986 rejecting the claim of the petitioners. Petitioners filed objections to the Award which were accepted by the Nazi by the order dated 31‑5‑1986, and he after setting aside the Award proceeded with the suit, and finally decreed it in petitioners' favour by the judgment dated 28‑12‑1986. In the meantime, however, respondents filed an appeal before Majlis‑e‑Shoora against the order of the learned Qazi setting aside the Award, which was however dismissed by the Majlis‑e‑Shoora on 7‑8‑1987 as being incompetent. Respondents did not pursue this matter further, and participated in the proceedings of the suit which culminated in the judgment and decree by the Qazi dated 28‑12‑1986.
2. Respondents then unsuccessfully challenged this decree before the Majlis‑e‑Shoora, and ultimately filed a Revision Application in Baluchistan High Court which succeeded on the sole ground that the objections filed by the petitioners were totally outside the scope of Section 30 of the Arbitration Act, and on this view of the case learned Judge in the High Court set aside the judgment and decree of both the Courts below and remanded the case to the Qazi with the direction to proceed with the matter afresh in accordance with relevant provisions of Arbitration Act and pass orders on the award". It is in these circumstances that petitioners filed this petition for leave to appeal from the judgment of the High Court.
3. Mr. Tahir Muhammad Khan, learned counsel appearing in support of the petition states that after the dismissal of respondents' appeal by the Majlis‑e‑Shoora against the order of the Qazi setting aside the Award, the question whether or not the Award was validly set aside was not raised in the proceedings in the suit which took place before the Qazi in which the respondents had participated. Learned counsel further pointed out that in the appeal before the Majlis‑e‑Shoora, respondents did not raise the plea that the Award had been invalidly set aside or that the proceedings in the suit were not competent. Learned counsel therefore submits that the High Court has erred in setting aside the judgment and decree passed by the learned Qazi on the grounds that prevailed with it.
4. We are prima facie of the view that an appeal under section 39 of the Arbitration Act was competent against the order of the learned Qazi setting aside the Award. It is the admitted position that respondents did not challenge the judgment of the Majlis‑e‑Shoora in further proceedings on the ground that the appeal was competent or that the order of the learned Qazi setting aside the Award was illegal. They, in fact, participated in the proceedings in the suit after the Qazi had set aside the Award. No plea was also raised by them in the appeal before the Majlis‑e‑Shoora that the proceedings in the suit after the setting aside of the Award were incompetent. The submission raised in support of this petition that it is not open to them to challenge the judgment and decree in the suit passed in they proceedings under the Civil Procedure Code on the pleas that found favour with the High Court seems to have force. We, therefore, grant leave to appeal and allow the petition. Security Rs.2,000.
5. Appeal will be heard on the present record, but it will be open to the parties to file additional documents, if any.
6. M.I./M‑541/S Leave granted