PLJ 2012 Peshawar 158
Present: Mian Fasih-ul-Mulk, J.
Mian ASMAT SHAH and
another--Petitioners
versus
Mian FAQIR SHAH and
others--Respondents
C.R. No. 25 of
2007, decided on 5.6.2012.
Arbitration Act,
1940 (X of 1940)--
----S. 21--Award
of arbitrators as Rule of Court--Rejection of award of arbitrators--Parties
submitted applications in Court for referring dispute to arbitrators for
settlement and submission of award--Award was submitted in Court--Objection was
raised after about 77 days--All the applications were dismissed and made award
of arbitrators as Rule of Court--No discrimination in award between rights of
minor and other respondents--Question of submission of applications--Agreement
deed expressing their intention to refer matter to arbitration and to abide by
award--No denial from either side--Legal heirs did not signed the agreement as
no power was bestowed on attorney to refer dispute for arbitration--Being
general power of attorney had empowered to do all acts with regard to landed
properties--Validity--Power of attorney under which the agent acted authorized
to attest mutations on their behalf, give possession, evict tenants, receive
rents, execute rent deeds, represent them in Court, file suits written
statements, written replies, submit list of witnesses, move application for
restoration of suits, move application for execution compromise--Held:
Expression general power of attorney has not been defined either in CPC or in
other statute but according to well established principle, a general agent is
one who has authority arising out of and in ordinary course of his business or
profession to do some act or acts on behalf of his principal or one who is
authorized to act on behalf of principal generally in transactions of
particular kind or incident to particular business--Objection that neither
their consent for arbitration was obtained nor all respondents had signed
agreement for referring the matter to arbitration is not of vital importance in
view of acts done on behalf of attorney--When matter was referred by Court on
request of both the parties to arbitrators and when respondent duly
participated in proceedings before arbitrators and when arbitrators as per
directions of Court submitted the award and when it was in agreement for
settlement of dispute through arbitration that decision of arbitrators would be
made as rule of the Court and when objection so raised after submission of
award was not taken before arbitrators, then respondents cannot competently
take objection that award was invalid--All objections raised by respondent were
of technical nature without pin-pointing any substantial injustive
having been done to parties during arbitration proceedings that being position,
trial Court was perfectly right in making award of arbitrators as rule of Court
and rejecting objection applications--Findings of appellate Court were not
tenable and liable to be set aside--Petition was allowed. [Pp. 163, 164 & 165] A, C, D & G
Vakalatnama--
----Contents
of--Counsel was appointed by General Attorney and vakalat
nama was signed--As per
contents of vakalat nama,
all powers granted to general power of attorney were conferred on counsel. [P. 164] B
1983
SCMR 231, ref.
Limitation Act,
1908 (IX of 1908)--
----Art.
158--Arbitration Act, (X of 1940), S. 21--Matter was referred to arbitrators
for settlement and submission of award--Objection was raised after about 77
days--Validity--When award was filed in Court, parties were present in Court
but respondents waited for compromise and when matter of compromise could not
reach to its logic, then they had filed objection applications beyond
prescribed period of 30 days--Respondents were in knowledge of decision made by
arbitrators and they were required to have filed objection application within
time--Question that no notice u/S. 14(2) of Arbitration Act was served on them
was merely technical ground, having no force in circumstances of the instant
case. [Pp. 164 & 165] E
1985
SCMR 597, ref.
Arbitration Act,
1940 (X of 1940)--
----S.
21--Referring dispute to arbitrators for settlement and submission of
award--Rejecting award of arbitrators as parties had agreed on four arbitrators
in agreement deed but the deed was tampered with and name of one of arbitrators
was struck as a result of fraud and collusion--Validity--Although parties in
their agreement had suggested for appointment of four arbitrators but it had
been clarified by all arbitrators including the excluded one that his name was
deleted on orders of the Court and findings of trial Court found support from
fact that in very order of reference, Court itself had appointed three persons
as arbitrators and not four, which would clearly suggest that there was not
deletion of the name of fourth arbitrator through illegal means as objected to
by respondent. [P. 166] F
M/s. Abdul Samad Khan Zaidi & S. Arshad Ali, Advocates for
Petitioners.
Mr. Abdul Sattar Khan, Advocate for Respondents.
Date of hearing:
5.6.2012.
Judgment
Predecessor of
the parties was Mian Mussarrat
Shah, a landlord of the area, who besides other landed properties had also
purchased Plots No. 58, 65 and 66 in Khasra No. 468
from the Municipal Committee in the years 1942 and 1943. Plot No. 58 was
converted into a residential house and transferred in the name of his wife Mst. Sabz Pari,
as dower vide dower deed dated 01.01.1954, from whom the same was purchased by
petitioners for a sale consideration of Rs.two lacs with delivery of possession. On the remaining plots
i.e. 65 and 66, five houses with two garages were constructed and as per,, Will deed dated 13.11.1972 of Mian
Musarrat Shah, the same were divided amongst all his
legal heirs. After the death of Mian Musarrat Shah, when his succession was opened, the suit
plots/houses were also treated as part of his legacy and devolved upon his
legal heirs according to their sharai shares as per
inheritance Mutations No. 5946 dated 06.12.1992 and No. 6056 dated 03.12.1992,
which annoyed the petitioners, who filed instant suit against the legal heirs
of Mian Musarrat Shah for
declaring the said mutations as illegal, ineffective upon their rights and
liable to cancellation on the ground that the suit plot was given in dower by Mian Musarrat Shah to his wife
whereas in the other houses they were also given shares alongwith
other legal heirs as per Will deed; hence the same were required to have been
excluded from the legacy of Mian Musarrat
Shah.
2. The suit was contested by defendants wherein
the genuineness and propriety of the Dower Deed and Will Deed were questioned.
3. Issues in the case were framed but on
07.05.1997 both the parties submitted applications in Court under Section 21 of
the Arbitration Act, 1940 for referring their dispute to the arbitrators for
settlement and submission of award. Alongwith the
applications, they also submitted a document titled "Iqrarnama
Baraa-e-amadg ee razi nama"
(consent for settlement and abiding by the award of arbitrators) whereupon the
trial Court with express consent of the parties and on their
recommendation/nomination appointed Mian Hidayatur Rehman and Mian Inayatur Rehman
as Arbitrators with Taimoor Shah, advocate, as their
senior member and referred the matter to them for submission of award.
4. It was in this background, when the
Arbitrators submitted their award in Court on 27.11.1997, over which the
respondents i.e. Defendants No. 7 to 14 filed objection after about 77 days,
mainly on the ground that only some of the defendants had agreed for settling
the dispute through arbitration and not all the defendants. Another application
was also moved by Mian Raza
Shah, Defendant No. 6 (Respondent No. 2 herein) for rejecting the award of
arbitrators as the parties had agreed on four arbitrators in the agreement deed
but the said deed was tampered with and the name of one of the arbitrators was
struck as a result of fraud and collusion.
4-A. The trial Court however dismissed all the
applications and made the Award of Arbitrators as Rule of the Court vide judgment
dated 10.09.2005. The defendants went in appeal before the District Judge, who
accepted the appeal and set aside the order of trial Court. The
plaintiff/petitioners preferred revision petition before this Court, which was
accepted on 17.04.2003 and the matter was remanded to the trial Court for
framing issues on the objection applications of defendants and reply of
plaintiffs and thereafter deciding the fate of the references and award.
5. The trial Court complied with the orders of
this Court and after doing the needful again dismissed the objection
applications. The respondents filed appeal before the Additional District
Judge-XI, Peshawar, who vide judgment dated 11.12.2006 accepted the appeal, set
aside the impugned order of trial Court and remanded the case to the trial
Court for decision of the case on merits after recording evidence of the
parties.
6. Petitioners, feeling aggrieved of the
appellate Court's decision, have now filed instant revision petition with a
prayer to set aside the impugned judgment.
7. Learned counsel for petitioners argued that
not only the objection applications filed by respondents were time barred under
Article 158 of the Limitation Act but all the legal heirs of Mian Wilayat Shah, Mst. Chaman Ara
etc. had given a registered General Power of Attorney to Mian
Raza Shah son of Wilayat
Shah (Respondent No. 2), which power of attorney was also signed by all the
legal heirs of Musarrat Shah, who duly signed the
Arbitration Agreement submitted before the Court and also appointed an
Advocate, hence findings of the appellate Court are based on mis-reading, non-reading and incorrect appraisal of the
record. That the application of Mian Raza Shah regarding appointment of four arbitrators is
totally misleading as the parties as well as the Court had decided that four
persons could not finally decide the matter, as such only three persons were
nominated by the parties and accepted by the Court. There was no objection
against the said appointment, the parties including Mian
Raza Shah appeared before the Arbitrators; hence the
objection was merely an after thought on account of
the decision of the Arbitrators being against them. The learned counsel also
argued that minor Shah Taj, Respondent No. 9, was
duly represented by his mother Mst. Shakila Begum, who was appointed as guardian in the
proceedings and even otherwise the arbitrators have made no discrimination in
the award between the rights of the minor and other respondents. The learned
counsel in support of his contentions placed reliance on certain judgments of
the superior Courts.
8. Learned counsel for respondents defended the
impugned judgment of the appellate Court and stated that the appellate Court
has rightly come to the conclusion that no specific powers of referring the dispute
to the arbitrators were given to Mian Raza Shah in the Power of Attorney, so Mian
Raza Shah could not have given consent for referring
the dispute to arbitrators by the respondents. The learned counsel in support
of his contention also referred to some rulings of the superior Courts on the
point.
9. I have heard learned counsel for the parties
and have also perused the record.
10. So for as the questions of submission of
applications by both the parties under Section 21 of the Arbitration Act, 1940 and
agreement deed therein expressing their intention to refer the matter to
arbitration and to abide by the award are concerned, there is no denial from
either side. As per record, there was an agreement to refer the dispute to
arbitration, there was a proper reference to arbitration, and there was an
adjudication/decision of arbitrators after hearing both the parties for a valid
arbitration.
11. The objections of respondents are however
that all the legal heirs of Musarrat Shah had not
signed the agreement, as no power was bestowed on the Attorney Mian Raza Shah to refer the
dispute for arbitration. The Attorney given to Mian Raza Shah is available on file, which reveals that the same
being a General Power of Attorney had empowered Mian Raza Shah by the female heirs of Mian
Wilayat Shah as well as Mst.
Shakila, widow of Mian Yousaf Shah, to do all acts with regard to their landed
properties including compromise on their behalf. The power of attorney under
which the agent acted authorized him to attest mutations on their behalf, give
possession, evict tenants, receive rents, execute rent deeds, represent them in
Courts, file suits, written statements, written replies, submit list of
witnesses, move application for restoration of suits, make affidavits, attest
the same, file appeals, objections, review, move application for execution,
compromise etc. etc. The expression "general power of attorney" has
not been defined either in the Civil Procedure Code or in any other statute but
according to the well established principal, a general agent is one who has
authority arising out of and in the ordinary course of his business or
profession to do some act or acts on behalf of his principal in relation
thereto or one who is authorized to act on behalf of the principal generally in
transactions of a particular kind or incident to a particular business. In the
case of Concentrate Manufacturing Company of Ireland and 3 others versus
Seven-Up Bottling Company (Private) Limited and 3 others (2002 CLD 77) it has
been held that:--
"Agent is
the connecting link between the principal and third person; a sort of conduit
pipe or an intermediary who has the powers to create legal relationship between
the principal and third party. Agent has competence to make the principal
responsible to the third person and is an imperative bridge by crossing which,
the third person can reach the principal to enforce his legal right or vice
versa. Principal is liable to the third person for all the acts and deeds
performed, within the authority or agency, by his agent, as
to those were personally performed by him."
In the case of
Muhammad Rafique versus Messrs Bawany
Sugar Mills Ltd. (1999 MLD 3273) it is held with regard to a Power of attorney
that the same authorizes the person to act for the principal in all matters
relating to settlement, adjustment and compromise of suit. Several acts which
attorney is expected to do for achieving object constitutes `one' transaction
but power that is conferred on him is general insofar as contemplated transaction
is concerned. In such an eventuality, the reference of a matter for arbitration
on behalf of his principal would be within his competence.
12. The General Attorney of respondents had
appointed Mr. Shahzad Akbar Khan, advocate as their
counsel and the `vakalat-nama' was signed by Mian Raza Shah besides
Respondents No. 11 and 14 namely Mian Firasat Shah and Mian Qinyayat Shah, sons of Mian Musarrat Shah. As per contents of vakalat-nama,
all the powers granted to General Power of Attorney by the respondents were
conferred on the counsel. The Apex Court in the case of Muhammad Hussain and others versus Ghulam Rasool and others (1983 SCMR 231) has
laid down that:
"Counsel
representing parties had agreed to the reference of the dispute to arbitration.
Their statement was recorded by the Court and given effect to. It has not been
shown that the learned counsel representing the parties particularly the
petitioners were in any way incompetent in the matter of making such a
statement or referring the matter to arbitration. The requirements of law were
substantially satisfied."
In view of the
above dictum, I would support the view taken by the trial Court that counsel
for respondents was competent to make statement on behalf of respondents for
referring the matter to arbitration. The objection of respondents that neither
their consent for arbitration was obtained nor all the respondents had signed
the agreement for referring the matter to arbitration is not of vital
importance in view of the acts done by Mian Raza Shah on their behalf as their duly nominated General
Power of Attorney. The learned appellate Court has thus wrongly reversed the
findings of the trial Court in this regard.
13. When the matter was referred by the Court on
the request of both the parties to arbitrators and when the respondents duly
participated in the proceedings before the arbitrators and when the arbitrators
as per directions of the Court submitted the award and when it was in the
agreement/consent for settlement of dispute through arbitration that decision
of arbitrators would be made as rule of the Court, and when the objection so
raised by respondents after submission of Award was not taken before the
arbitrators, then the respondents cannot competently take objection that the
award was invalid for the reasons stated therein.
14. As per order sheets of the trial Court, when
the award was filed in Court, the parties were present in Court but the
respondents waited for a compromise and when the matter of compromise
could not reach to its logic, then they filed objection applications beyond the
prescribed period of 30 days. The respondents were in the knowledge of the
decision made by arbitrators and they were required to have filed the objection
applications within time. The question that no notice u/S. 14(2) of Arbitration
Act was served on them is merely a technical ground, having no force in the
circumstances of instant case. As per ruling of the august Supreme Court of
Pakistan in the case of Ashfaq Ali Qureshi versus Municipal Corporation, Multan (1985 SCMR
597), the provision of the law is meant to enable the parties to know that the
award has been filed in Court so that they may file their objections, if any,
within the time prescribed, a formal compliance in strict conformity with the
relevant provision of law is not to be insisted upon when substantial
compliance has been made of it. Similar view has been taken by the Karachi High
Court in the case of Messrs Shafi Corporation Ltd.
versus Government of Pakistan (PLD 1994 Karachi 127). As stated "above,
the respondents were in the knowledge of filing of Award in Court but they did
not file objections to award within prescribed period. It is held in the case
of Dr. Abdul Waris versus Javed
Hanif and others (1983 SCMR 716) that:
"It appears
from the order of the trial Court that on this date the petitioner had moved
only an application for production of the agreement and had not filed any
formal objections. The time for filing objection is prescribed by law and,
therefore, it had to be done within the period so prescribed."
The above ruling
was re-enunciated by the apex Court in so many pronouncements such as PLD 1996
Supreme Court 797. In this case too, respondents after filing of award sought
time for a compromise and did not file objection within time; hence the trial
Court has rightly termed their applications as barred by time. The learned
appellate Court again has fallen into error to reverse the findings of the
trial Court on the ground that no notice was given to the parties about filing
of award. As stated above, when both the parties were present at the time of
filing of the award, then there was no need of issuing a notice to the
respondents.
15. No doubt, Mst. Shah
Taj, respondent was a minor but she was duly
represented by her mother Mst. Shakila
Begum and on this count too the award was not liable to be set aside merely for
the reason that the Court did not properly appointed a guardian-at-litem for her. The apex Court in the case of Mst. Naziran Bibi
and others versus Muhammad Ashraf and others (2003
SCMR 1831) has held that:
"Reference
of dispute to arbitration on joint application of parties to the
suit--Contention of defendant was that, mother of minor plaintiffs had no
authority to make such reference without leave of the Court--Validity--Minors
were living with mother, who was their natural as well as lawful guardian and
had no interest adverse to that of minors--Mother would never contract against
interests of her real children, Contention, held, was, neither sound nor tenable
at law."
Even this Court
in the cases of Murad Khan and another versus Dildar Khan and others (PLD 1966 (W.P.) Peshawar 173) and Kameen Khan and 15 others versus Ghazi Marjan
and 9 others (1990 MLD 1865) has held that if no guardian-at-litem is appointed for a minor defendant, it is duty of
plaintiffs to have applied for the appointment of his guardian-at-litem but when from the record it appears that counsel
representing minor's mother and brothers had been representing the minor and
the mother being party to litigation seriously defending the rights acquired by
their predecessor in suit property, then such omission has to be regarded as
only inconsequential when there is nothing to suggest that interest of minor
was not duly represented.
16. Although the parties in their agreement had
suggested for appointment of four Arbitrators but it has been clarified by all
the arbitrators including the excluded one i.e. Mian Mujeebur Rehman that his name was
deleted on orders of the Court and findings of the trial Court find support
from the fact that in the very order of reference dated 07.05.1997, the Court
itself had appointed three persons as Arbitrators and not four, which would
clearly suggest that there was no deletion of the name of fourth Arbitrator through
illegal means as objected to by Mian Raza Shah, Respondent No. 2.
17. In nutshell, all the objections raised by
respondents are of technical nature without pin-pointing any substantial
injustice having been done to the parties during arbitration proceedings that
being the position, the trial Court was perfectly right in making the Award of
Arbitrators as rule of the Court and rejecting the objection applications of
respondents. The findings of appellate Court are therefore not tenable and
liable to be set aside.
18. Accordingly, this revision petition is
accepted, the impugned judgment/decree of the appellate Court is set aside and
that of the trial Court is restored with no order as to costs.
(R.A.) Petition
accepted
