DIL MUHAMMAD vs ADDITIONAL DISTRICT JUDGE, SAHIWAL and 3 others

' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, assails the order, dated 17th of September, 1990, whereby the revision petition filed by the petitioner against the order, dated 15th of October, 1989 of the Civil Judge, Sahiwal, was dismissed.

2. The dispute arises out of an application filed by Gul Muhammad, respondent No,3, under the Arbitration Act alleging that dispute between him and the petitioner was referred to the sole arbitration of Chaudhry Ghulam Rasool, respondent No,4, who made his award on 13th of July, 1986, which is still in possession of the arbitrator, who has not filed the same. In the application, it was prayed that respondent No,4 be directed to file the award in the Court and it be made rule of the Court.

3. This application was contested by the petitioner by raising various pleas, inter alia, that the application was not within time; that the Courts at Sahiwal had no territorial jurisdiction to try the same. The trial Court framed the following issues arising out of the pleadings of the parties:--

(1) What is the effect of preliminary objection No,1 embodied in the objection petition filed by the respondent No,1.

(2) Whether the instant petition moved under section 14/17 of the Arbitration Act, 1940 is within time?

(3) Whether the award has been delivered by the arbitrator in contravention to the provisions of the Arbitration Act, 1940?

(4) Whether this Court lacks territorial jurisdiction to entertain and try the instant petition?

(5) Whether the respondent No,1 is entitled to special costs, if so to what extent?

(6) Whether the arbitrator is guilty of misconduct?

(7) Relief.

' Out of these issues, issues Nos.2 and 3 were treated as preliminary issues. The learned Civil Judge on 15th of October, 1989, decided both these issues against the petitioner, who challenged this order by filing a petition for revision which, as already stated, was dismissed by the Additional District Judge on 17th of September, 1990.

3. Mian Saeed-ur-Rahman Farrukh, learned counsel for the petitioner, has argued that admittedly at the time when the award was announced, i.e, on 13th July, 1986 the arbitrator delivered copies of this award to both the parties. On these premises, it was urged that respondent No,3 was fully aware of the fact of the award having been made, the application for filing the award and making it rule of the Court should have been filed within 90 days of the date of knowledge as required under Article 178 of the First Schedule of the Limitation Act, 1908 and the application which was filed on 12th of November, 1986, was barred by time. The learned counsel has placed reliance upon the judgments of the Supreme Court in Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another (1985 SCMR 597) and Pakistan through General Manager, Pakistan Railways v. Messrs Q.M.R. Expert Consultants (PLD 1990 SC 800).

6. The learned counsel appearing on behalf of respondent No,3, has however contended that as no notice for filing of the award was served upon respondent No,1 by the arbitrator, the application filed by him was governed by Article 181 and not by Article 178 of the Limitation Act.

7. The contention of the learned counsel that the application of respondent No,3 was governed by Article 178 of the Limitation Act, 1908, is not well-founded. Under this Article the limitation runs from date of service of notice of making of the award. The question which therefore, arises for consideration is as to whether the service of the notice visualized by section 14 (1) of the Arbitration Act is essential for its applicability or even the information or knowledge of making of award otherwise obtained can be construed by such a notice.

8. According to section 14(1) of the Arbitration Act, 1940, when the arbitrators or umpire have made their award, they shall sign it, and give notice in writing to the parties of the making and signing thereof, and of the amount of fee and charges payable to the arbitrators or umpire in respect of the arbitration and award. The insistence that the notice must be in writing makes service of the formal notice necessary especially as the limitation under Article 178 of the Limitation Act runs from the date of that notice. It is also to be seen that section 42 of the Arbitration Act prescribes the mode for service of the notice required under the Act to be served by a party to an arbitration agreement or by an arbitrator or umpire. It provides that such a notice shall be served by delivering it to the person on whom it is to be served by sending it by registered post at the usual or last known address of the business or residence of the addressee. If section 14(1) and section 42 of Arbitration Act are read conjunctively alongwith Article 178 of the Limitation Act, it becomes abundantly clear that a service of notice is a sing qua non for attracting the provisions of Article 178 of the Limitation Act and knowledge gained aliunde is not sufficient in this behalf. In Messrs Ahmad Bakhsh Abdul Rashid v. Muhammad Aslam and Brothers and another PLD 1954 Lahore 620, it was held that the notice by the arbitrator must be served in the manner prescribed by section 42 and the notice not in accordance with this provision could not be described as valid.

9. A reference to the legislative history of section 14 would also bear out this interpretation.

Previously, the matter was dealt with by section 11 of the Indian Arbitration Act, 1899, subsection (1) whereof read as under:-- "(1) Where the arbitrators or umpire have made their awards, they shall sign it, and give notice to the parties of the making and signing thereof, and of the amount of fee and charges payable to the arbitrators or umpire in respect of the arbitration and award."

' This provision was substituted by para. 10 of the Second Schedule of the Code of Civil Procedure, 1908 which was in following terms:- "Where an award in a suit has been made, the person who makes it shall sign it and cause it to be filed in Court, together with any deposition and documents which have been taken and proved before them; and the notice of the filing shall be given to the parties."

' If the above two provisions are considered in juxtaposition with section 14(1) of the Arbitration Act, 1940, it will be seen that in the earlier two provisions, there was no requirement that notice to be given by the arbitrators must be in writing, while section 14 of the Act, 1940 so ordains. This clearly brings about the importance of the notice in writing to be given by the arbitrators under the present dispensation.

9-A. It emerges from the above discussion that Article 178 of the-Limitation Act applies only when a written notice has been served in the manner prescribed upon a party that the award has been made. If there is no such notice, the provision applicable shall be the res;duary Article 181 of the Limitation Act. This view finds full support from the judgments of the Karachi High Court in Abdul Qayum Khan v. MA. Qudus Khan PLD 1964 (W.P.) Karachi 66 and Muhammad Wasi Saigal v. Sheikh Rashid Ahmad and others 1988 CLC 267.

10. The cases cited by the learned counsel for the petitioner, namely, Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another 1985 SCMR 597 and Pakistan through General Manager, Pakistan Railways v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 800 are distinguishable, for the controversy in those cases was as regards a notice under section 14(2) of the Arbitration Act by the Court. It may pertinently be observed that to such a notice, the provisions of section 42 of the Arbitration Act, 1940 have no applicability.

' For the reasons aforesaid, there is no force in this petition which is dismissed leaving the parties to bear their own costs.