WAJID ALI vs Syed SAJID ALI
The petitioner sought leave to appeal against an order of the Lahore High Court, which had dismissed his objections to an arbitration award. The underlying dispute concerned a suit for declaration of ownership and perpetual injunction regarding land, which had proceeded through the trial and appellate courts before reaching the High Court in Second Appeal. During the pendency of the appeal, the parties jointly agreed to refer the dispute to arbitration. Following a disagreement between the appointed arbitrators, an Umpire was appointed, who subsequently issued an award favoring the respondent. The petitioner challenged this award, alleging misconduct by the Umpire, specifically claiming a lack of inquiry and failure to hear arguments. The High Court dismissed these objections after recording evidence. Before the Supreme Court, the petitioner raised a new argument regarding the legality of referring a matter to arbitration during a Second Appeal. The Supreme Court declined to entertain this new plea, noting it was not raised before the High Court. Furthermore, the Court found no evidence of misconduct by the Umpire, affirming that the Umpire had properly considered the record and arguments, and consequently dismissed the petition.
- Can a party raise the issue of the legality of an arbitration reference for the first time before the Supreme Court if it was not raised in the High Court?
- Does an Umpire misconduct themselves by agreeing with the reasoning of one of the appointed arbitrators after reviewing the record and hearing the parties?
- Is a reference to arbitration permissible during the pendency of a Second Appeal?
- Section 14, Arbitration Act 1940
- Section 30, Arbitration Act 1940
ORDER
1. WAHEEDUDDIN AHMAD, J.-The petitioner, on the 25th April 1964, instituted a suit in the Court of Civil Judge, Khanpur, District Rahimyar Khan, for a declaration that he was the owner and in possession of 225 kanals and 13 marlas of land in Mauza Khanpur, Tehsil Khanpur, District Rahimyar Khan. He also claimed perpetual injunction restraining the respondent from interfering with the petitioner's right and ownership. The respondent contested the suit. The matter was heard by the learned Civil Judge It Class. Khanpur and the suit was decreed on the 4th February, 1.967 in favour of the petitioner. Respondent filed an appeal before the learned District Judge, Rahimyar Khan, which was dismissed on the 25th October 1967. Respondent filed R. S. A. No. 61 of 1968, in the Bahawalpur Circuit of the Lahore High Court. During the pendency of the appeal, the parties submitted an application dated the 4th November 1968 jointly and prayed that their dispute be referred to Sh.
2. Inayat A.I, Advocate, Khanpur as an Arbitrator. This prayer was accepted and the matter was referred to the arbitration of Sh. Inayat A.I. On the 21st March 1969, the patties submitted a joint statement and prayed for the removal of Sh. Inayat A.I as sole arbitrator and for appointment of two arbitrators by each of them. They further prayed that in case of difference between the two arbitrators, the matter may be referred to Allama Rehmat Ullah Arshad, Ex-Member of Parliament as an Umpire. Accordingly, Mr. Muhammad Faizullah was appointed as an arbitrator on behalf of the petitioner and Mr. Asad Hussain, Advocate, was appointed arbitrator on behalf of the respondent. The two arbitrators gave their award separately. Mr. Muhammad Faizullah arbitrator gave the award in favour of the petitioner on the 25th July 1969 and Mr. Asad Hussain gave the award in favour of respondent on the 9th July 1969. As the two arbitrators have differed, the matter was referred to the Umpire Mr. Rehmat Ullah Arshad, who gave his award on the 19th December 1970. He heard the parties and perused the record of the case and gave the award in which he agreed with the award given by Mr. Asad Hussain arbitrator.
3. The petitioner raised objection against the award on the 12th March 1971 under sections 14 and 30 of the Arbitration Act. He alleged that the Umpire has mis-conducted himself. According to the objection, it was urged that the Umpire has not made any inquiry and no argument was heard on behalf of the petitioner. Evidence was recorded on the objection by the High Court. Allama Rehmat Ullah Arshad stated as Court witness on the 21st May 1972, that the parties in question have not made any further statement and agreed to decide the matter on the basis of the record of the case. On the 29th September 1972, the learned Single Judge of the High Court dismissed the objection petition with costs. The petitioner seeks permission to file an appeal against the said order.
4. Ch. Muhammad Anwar Buttar, learned counsel for the petitioner, has contended that no reference could be made in Second Appeal to arbitration and reference to Arbitrator was illegal. In support of his contention, he relied on Abani Bhushan Chakarvarty and others v. Hem Chandra Chakarvarty and others (AIR 1947 Cal. 93). This objection has, for the first time, been taken before us. It was not taken before the High Court. It was urged that this question relates to the jurisdiction of the arbitrator and, therefore, it should be allowed.
5. After hearing the learned counsel for the petitioner, we are not mcltnea to allow the petitioner to raise the aforesaid point. It was further contended that the arbitrator has agreed only with the opinion of one of the arbitrators, namely. Mr. Asad Hussain Shah. He contended that the Umpire, by doing so, has misconducted himself. We have gone through the award at page 81 of the record.
6. The award clearly shows that the Umpire has read the decision of the two arbitrators, He also heard the parties and heard the argument of their counsel and thereafter came to the conclusion that the decision of Syed Asad Hussain is based on correct facts and consideration of documents.
7. In our opinion, in these circumstances, it cannot be said that the Umpire has misconducted himself. The High Court has rightly rejected the objection. There is no force in the petition which is dismissed.