MEHBOOB KHAN Versus WALAT KHAN

IQBAL AHMED KASI, J.--- Through the instant Civil Revision Petition, the petitioners have called in question the concurrent orders dated 26th October, 2024 passed by the Senior Civil Judge, Zhob ("the trial Court ") and that of District Judge, Zhob (the appellate Court ) dated 21 March, 2025, whereby the former dismissed the suit of the petitioners (plaintiffs) while the later upheld the same.

2. Before adverting to the merits of instant petition, it would be appropriate to briefly refer the facts of the case. The plaintiffs/petitioners and respondents have a dispute over an unsettled land situated at Awara Khamtai, Xhob "hereinafter referred as disputed land". In order to resolve dispute, the petitioners and respondents Nos. 1 and 2 appointed Malik Muhammad Hanif (respondent No.3) as sole arbitrator, who after due process passed an arbitration award dated 25th April, 2024, copies whereof have been provided to both parties. Meanwhile, on the request of petitioners, the respondent No.3 filed an application before the trial Court for making the arbitration award as rule of Court. On the other hand the replying respondents Nos.1 and 2 filed objection under Sections 30 and 33 of the Arbitration Act, 1940, which is still pending before the trial Court. In the meantime, the respondent No.3 filed an application under Sections 14 and 17 of the Arbitration Act before the trial Court for making his arbitration award as a rule of Court, which was also contested by the replying respondents by filing their objections, however, the Court famed issues and after hearing arguments from both sides dismissed the application vide impugned order dated 26.10.2024, which was assailed by the petitioners and respondent No.3 before the appellate Court, which stood upheld by the learned appellate Court vide impugned order dated 21.03.2025, hence this petition.

3. Arguments of the learned counsel for the petitioners heard and record gone through with his valuable assistance but for the sake of brevity, without reproducing the arguments of the counsel, same will be adequately dealt with at appropriate stages in this judgment.

4. There can be no denial of the fact that initially the order was passed by the learned trial Court, however, the said order was assailed in the appeal. The only question raised by the petitioners in this petition that the parties in dispute through mutual consent and free will referred the matter in issue regarding disputed land to a sole arbitrator and the arbitrator after adopting a due process of law passed an arbitration award as per law and facts, but the learned trial Court as well as the appellate Court while passing the impugned orders ignored this material aspect, whereas the additional issue is a mixed question of law and facts, which needs to be resolved after leading respective evidences of both parties.

5. The findings of the trial Court on such objection was also approved and it was held by the trial Court that the application moved by the respondent No.3 itself for making his award as a rule of Court is not maintainable, because he was appointed as arbitrator by the parties to resolve their dispute. The Arbitrator shall file in Court the award only when either he is requested by any party to the agreement or any other person claiming under him, or when he is so directed by the Court to which a party to the agreement has applied for the same. Nowhere in the Act it has been provided that the arbitrator may or shall file the award in Court of his own accord. In the case of petitioners, the arbitrator has filed the award in Court suo motu . None of the parties had either requested him under Section 14(2) of the Arbitration Act to do so or has applied to the Court under Section 20 of the Act.

The case in hand totally revolves around one point i.e. whether the respondent No.3 being arbitrator can file application for making his award as rule of Court. In this regard, the findings of the Hon'ble Supreme Court regarding arbitration award making the same as a rule of Court in a case titled as Inayatullah Khan v. Obaidullah Khan and others (1999 SCMR 2702) , wherein it has been observed as under: "we are going to hold that the arbitrators by themselves were not competent to file the award in Court as such filing of an award was not envisaged under section 14 of the Act because the arbitrators had neither been requested by any party to the arbitration agreement to file the award in Court nor had been so directed by the Court. It is also interesting to note that after the three arbitrators jointly failed to make award rule of the Court, then only one of them took upon himself this responsibility and filed appeal against it. This besides being violation of section 14 of the Act also supports the objection of the appellant that they were motivated by personal interest and acted as partisan."

6. The learned appellate Court while considering the said aspect of the case, discussed Section 14 of the Arbitration Act, 1940, according to which " when a party seeking to enforce an arbitration award is required to initiate a formation application under Section 14 of the Arbitration Act within a prescribed period of ninety days from the date of receiving notice of the award's issuance. The act of filing award in Court by the arbitrator or umpire is construed as a ministerial function, executed upon the request of a party to the arbitration proceedings or pursuant to a directive issued by the Court. Conversely the opposing party who wishes to challenge the validity of the award, is obligated to file a petition under Section 33 of the Arbitration Act, 1940 within a period of thirty days from the date of receiving notice of the award's filing, as stipulated by Article 58 of the Limitation Act. "

The learned appellate Court while applying its judicious consideration in the light of above provisions, observed that an arbitrator having lack of legal competency independently filing an applications under Sections 14 and 17 of the Arbitration Act, 1940 for the purpose of enforcing his own arbitration award as a rule of the Court is against the law.

7. The award drawn under such a background could not be sustained on the touchstone of section 30 of the Act as it is invalid and had been improperly procured. The view taken in this regard by the appellate and trial Court appears to be in consonance with the provision of section 14 of the Act while the conclusion of the High Court in reversing that finding is the result of misconstruing and misinterpreting section 14 of the Act, as it has read in the section which is not there and that is clear from the following observation:

Section 14. Award to be signed and filed.-(1) When the arbitrators or umpire have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbitration and award.

(2) The arbitrator or umpire shall, at the request of any party to the arbitration agreement or any person claiming under such party or if so directed by the Court and upon payment of the fees and charges due in respect of the arbitration and award and of the costs and charges of filing of the award, cause the award or a signed copy of it, together with any depositions and documents which may have been taken and proved before them, to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award.

(3) Where the arbitrators or umpire state a special case under Article (b) of Section 13, the Court, after giving notice to the parties and hearing them, shall pronounce its opinion thereon and such opinion shall be added too, and shall form part of, the award."

8. Further, the scope of revisional jurisdiction is very limited, in which the Court cannot set aside the concurrent findings of facts recorded by the Courts of competent jurisdiction nor it can upset the same even if on proper appreciation of evidence a different view can be formed unless these findings are shown patently illegal, without jurisdiction or the result of bare misreading and non-reading of material evidence, based on conjectural presumptions or erroneous assumption. In the instant case both the Courts below have rightly appreciated the evidence in its true perspective and no such infirmity has been pointed out by the learned counsel for the petitioners in the impugned judgments, which may warrant any interference of this Court. In this context, reference can be made to the case titled as Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 .

For the reasons discussed above, the instant revision petition is hereby dismissed in limine , with no order as to cost.

MQ/126/Bal Revision dismissed.