NAZIR AHMED Versus MUHAMMAD DIN

ABDUR REHMAN KHAN, J.-- -This appeal by leave of the Court assails the correctness of the judgment, dated 22-12-1993, of a learned single Judge in the High Court; whereby, the second appeal preferred by the appellant impugning the legality of the judgment of the first appellate Court, was dismissed and resultantly the judgment rendered by the learned trial Court, was affirmed.

2. Muhammad Din, plaintiff/respondent No.1 filed suit for declaration and permanent injunction against Ahmed Din, predecessor-in-interest of the appellants, on the allegation that Ahmed Din defendant No.l, had sold the disputed property to him for Rs.6,200 on the basis of oral sale and, therefore, sale mutation No.230 was sanctioned at the behest and in presence of defendant No. l on 31-12-1962, in the name of the plaintiff. It was alleged that later on defendant No. l applied to the revenue authorities for review, of the said mutation, which was accepted, the mutation was cancelled and the appeal and revision of the appellant, were dismissed. It was averred that, thereafter, the plaintiff was shown as tenant of the suit land. The cancellation of mutation and the entry in 'Khasra Girdawari' were challenged in the suit and the relief sought was declaration of ownership on the basis of the said sale mutation. In the written statement submitted by Muhammad Din defendant No. 1, the sale mutation was described as bougus, fraudulent, collusive and it was averred that he had never sold the suit land to the plaintiff and that he had continued as owner of the property in question and that the plaintiff was his tenant.

3. During the proceedings in the trial Court the plaintiff and defendant No. l made joint statement for referring the case to one Din Muhammad for his decision and they undertook to abide by his verdict. Din Muhammad referee, then appeared in Court on 5-5-1973, and stated that the property in question was sold by the defendant in favour of the plaintiff and that out of the sale consideration Rs.1,000 was paid in his presence while the remaining Rs.6,000 was to be paid later on. His decision, therefore, was that on payment of the balance of Rs.6,000 the plaintiff may be declared owner of the disputed property.

4. The learned trial Judge while acting on the finding of the referee decided the suit in these terms:--

"In accordance with the decision of Din Muhammad referee, I direct the plaintiff to deposit Rs.6,000 in this Court within week from today. If the amount is deposited within time, the plaintiff shall become the owner of the land in suit. If the plaintiff fails to deposit the amount of Rs.6,000 within time, his suit shall stand dismissed. "

The judgment was affirmed in appeal and also in revision through the impugned judgment.

5. Leave was granted in the following terms:--

"The contention on behalf of the petitioner is that even though he was described as referee, the appointment of Din Muhammad was in fact that of an arbitrator for he was required to give a 'faisala'. The trial Court asked him specifically to give his 'faisala' and then proceeded to record its judgment in accordance therewith. His 'faisala', was, thus, an 'award' and the parties should have been given an opportunity to file objections thereto in accordance with the provisions of the Arbitration Act."

6. The learned counsel appearing for the appellants argued that the statement of Din Muhammad amounted to Special Oath under section 8 of the Oaths Act and was relevant only to the extent to be used for decision by the Court. He also criticised the finding of all the Courts on the grounds that they failed to determine the correct status of Din Muhammad and also failed to keep in view the difference between referee and arbitrator. He was of the view that the learned lower Courts and the High Court were legally bound to have allowed the appellant an opportunity to lead evidence to rebut the correctness of the ' faisala' of the referee/arbitrator. He referred to "Ghulam Farid Khan v. Muhammad Hanif Khan and others (1990 SCMR 763), to support his submission. These submissions are contrary to the factual and legal aspect of the matter before us. The statement of the plaintiff and defendant No. l to appoint Din Muhammad to settle the dispute between them is reproduced:--

7. It was on 5-5-1973, that Din Muhammad was examined in Court wherein he gave details for his conclusion. In order to clarify certain aspects in his statement he was on the same day again examined. It is, thus, obvious that the appellant is estopped to challenge the effectiveness and binding nature of the statement of Din Muhammad because; firstly, he had appointed with his own free consent Din Muhammad for the decision of the matter in issue; secondly; he agreed that whatever decision, Din Muhammad would give that would be binding on him and he would not challenge its validity; and thirdly, he did not challenge the statement of Din Muhammad recorded in Court twice either by way of cross-examination or through written objection petition. It is, thus, obvious that by his conduct the appellant could not be allowed to raise any objection to the decision given by Din Muhammad and there is hardly any need to go into the academic question as to whether Din Muhammad acted as arbitrator or referee. It would be placing premium on blowing hot and cold in one breath if the appellant was allowed to take shelter under certain legal technicalities which have always been considered to create no hurdles in the way of substantial justice. The facts of the case relied on are distinguishable, as in that case the person appointed as arbitrator/referee acted in excess of his power and the parties were not properly afforded opportunity to object to his ' faisala' .

8. We, therefore, see no justification for interference with the conclusion unanimously reached by the High Court. This appeal is, therefore, dismissed with costs.

Q.M.H./M.A.K./N-67/S Appeal dismissed.