Mian FAZAL MUHAMMAD THROUGH HIS LEGAL HEIRS vs PROVINCE OF WEST PAKISTAN AND OTHERS

1. ' SALAHUDDIN AHMED, J.-This appeal, by special leave of this Court, arises out of a dispute over the non-payment of certain money on account of various items of work which the appellant, Mian Fazal Muhammad (since dead and represented by his legal heirs), had in accordance with an agreement with respondents Nos. 1 and 2, executed. It appears that the agreement had been entered into for the construction of Anotomy and Physiology Block of the Nishtar Medical College and Hospital, Multan. The agreement, inter alio, provided that the dispute between the parties would be submitted to the arbitration of the Superintending Engineer, Rawalpindi (respondent No, 3 herein), for determination. A dispute having arisen over the non-payment of money, it was referred to respondent No, 3 for arbitration on the 29th of January 1958. The appellant claimed that the Arbitrator had failed to use reasonable despatch in entering upon and proceeding with the reference, the former, therefore, on the 16th of May 1959, filed an application under section 11 of the Arbitration Act in the Court of the Senior Civil Judge, Lahore, for the removal of the Arbitrator.

2. Respondent No, 2, the Executive Engineer, Nishtar Medical College, Construction Division, P. W. D. (B & R), Multan Cantt. Resisted the application on the preliminary objection that the Civil Court, Lahore, had no jurisdiction to entertain the application. The objection was upheld by the trial Court, and the application was returned to him for presentation to the proper Court.

3. ' The appellant (Mian Fazal Muhammad) challenged the order of the trial Court in the then High Court of West Pakistan, Lahore Seat, in First Appeal No, 33 of 1960, inter aila, on the ground that respondent No, 1, the Province of West Pakistan should be deemed to be residing at Lahore within the meaning of section 20 of the Code of Civil Procedure and that in relation to the commercial activities of the Government, respondent No, 1 should be regarded to be carrying on its business at Lahore under the control and supervision of the Chief Engineer. The questions were, ultimately, referred to a Division Bench for consideration, and the Bench held that the Government should not be deemed to be carrying on business within the meaning of section 20 of the Code of Civil Procedure had no application in the case of a suit brought against the Government.

4. ' Leave was granted to consider whether the decision of the Division Bench of the High Court on the questions raised before it was correct.

5. In course of the hearing of the appeal it has transpired that during the pendency of the appellant's application under section 11 of the Arbitration Act, the Arbitrator gave his Award on the 6th of October 1959, and he gave 4 notice thereof under section 14 (1) of the Arbitration Act to the parties concerned including the appellant on the 9th of October 1959. Tae Arbitrator had thus become fonctus officio. It appears further that no step was taken by the appellant to stop the Arbitrator from entering on or proceeding with the arbitration during the pendency of the said application with the result that the Arbitrator had entered on and proceeded with the reference, and made the Award. The award, however, has not been filed in any Court.

6. ' In these circumstances the appellant's application under section 11 of the Arbitration Act has become infructuous, and the points raised in the appeal, therefore, do not require to be considered as they are no longer live issues.

7. ' The appeal is, accordingly, dismissed as such, but without any order as to costs.