2012 C L C 316
[Balochistan]
Before Abdul Q adir Mengal, J
Malik SARDAR MUHAMMAD QASIM ----Appellant
Versus
Malik Haji ABDUL GHAFFAR ----Respondent
Regular First Appeal No.6 of 2006, decided on 18th November, 2011.
Arbitration Act (X of 1940) ---
----Ss. 13, 17, 32 & 39 ---Specific Relief A ct (I of 1877), Ss.12, 42 & 54 ---Suit for
performance of arbitration agreement ---Parties entered into an agreement through which the
parties referred their disputes to panel of arbitrators to decide the same out of court ---Terms
of agreement showed that if any of the parties failed to comply with the decision of the
arbitrators, said party only could be allowed to sue the other party after payment of
Rs.5,00,000 (Rupees five lac) as a fine ---Arbitrators inspected the place in question, heard
both the partie s, collected necessary information from the general public and thereafter
through their judgment or award directed the defendant to remove his four grinding machines
within a week from the site pertaining to the plaintiff -Both parties accepted the decision of
arbitrators by signing along with the arbitrators the decision in presence of the witnesses ---
Criminal case pending against the defendant, on account of said settlement arrived at between
the parties, was also withdrawn ---Defendant, after withdrawal of said case, not only failed to
remove his four grinding machines, but also refused to accept the arbitration award ---Plaintiff
filed suit before Majli -e-Shoora for performance of. agreement arrived at between the parties -
--Said suit was decreed and defenda nt was permanently forbidden for interfering in the land
in dispute and defendant was also directed to remove the four grinding machines from the
decreetal site ---Defendant filed appeal against judgment of Majlis -e-Shoora, on two grounds;
firstly that suit filed by the plaintiff was not maintainable against an arbitration agreement or
award; secondly that as value of the suit for specific performance was Rs.60,000 but no court
fee had been deposited by the plaintiff --Validity -Arbitration award passed out of the court on
the basis of a valid authorized document though could not be executed or treated as 'award' or
'decision' like that passed by . court under Arbitration Act, 1940, but where the parties on
account of an agreement declared to adopt a particular way to solve their dispute and in that
respect they by their mutual consent, executed written agreement by authorizing the third
person as an arbitrator to decide their dispute, in consequence of said written agreement, if
arbitrators after holding inquir y, taking evidence and hearing the parties, had decided the
dispute, which the parties had accepted, then law of estoppel would apply to such kind of
award and parties would not be allowed to go back by such award/decision ---Order sheet had
shown that plai ntiff had paid the required court -fee-No illegality or impropriety having been
found in the impugned judgment by the Majlis -e-Shoora, appeal was dismissed by High
Court.
PLD 1978 Lah. 1252 and PLD 1971 SC 516 ref.
Iqbal Ahmed Kasi for Appellant.
W.N. Kohli for Respondent.
Date of hearing: 11th November, 2011.
JUDGMENT
ABDUL QADIR MENGAL, J. --- Through this judgment I have intended to dispose of
R.F.A. No.6 of 2006 filed by one Malik Sardar Muhammad Qasim, against the judgment and
decree dated 18th July, 2006, passed by the Majlis -e-Shoora, Zhob in Civil Suit No.4 of
2005, for performance of agreement dated 9th August, 2005 and judgment or award dated
22nd September, 2005, whereby the suit of the respondent/plaintiff Malik Haji Abdul Ghaffar
son of Malik Abdullah Jan was decreed and the appellant was permanently forbidden for
interfering in the disputed portion of the land and also directed to remove his flour grinding
machine from the decretal site.
2. The facts of the appeal are that the resp ondent/plaintiff instituted a suit on 8th December,
2005 in the Court of Majlis -e-Shoora, Zhob for performance of arbitration agreement dated
9th August, 2005 and judgment or award dated 22nd September, 2005 with the averment that
the appellant/defendant i nstalled a flour grinding machine on a portion of his land, which is
bounded as follow: ---
In the East. Old school Toot Barai
In the West. From beneath castle of the defendant towards the North to the last
tree of Sharoon
In the North. Reside ntial wall of the plaintiff
In the South. Mina and Dispensary of the defendant
3. The flour grinding machine, which the appellant/defendant installed on the well of the
respondent/plaintiff damaged the well and in consequence of the same a dispute was arisen
between the parties and in that respect the respondent/plaintiff also approached the court of
Judicial Magistrate through a criminal case filed under section 427/447/34, P.P.C. In the
meanwhile the parties entered into an arbitration agreement date d 9th August, 2005, through
which the parties referred their all disputed matters to a panel of arbitrators consisting upon
Malik Haji Safar and Malik Amanullah Khan to decide the same out of the Court and if any
of the party failed to comply the decision of the arbitrators, then he only could be allowed to
sue the other party after payment of Rs.5,00,000 (Rupees five lac) as a fine, as such after the
agreement the both arbitrators inquired about the disputed land, inspected the place of
incident, hear the both parties, so as also collected necessary information from the general
public and whereafter through their judgment -or award dated 22nd September, 2005 directed
the appellant to remove his flour grinding machine within a week from the site pertaining to
the respondent/plaintiff. The judgment or award dated 22nd September, 2005 shows that both
the parties accepted the decision of the arbitrators and whereafter as a token of acceptance
also both the parties signed along with the arbitrators over the decisi on in presence of the
witnesses. Further on account of the settlement arrived at between, the parties , through the
decision of arbitrators dated 22nd September, 2005 the criminal case, which was pending
against the appellant/defendant before the Court of Judicial Magistrate was also withdrawn
on the basis of that arbitration award. However, for the sake of facility the relevant portion of
the judgment of the Judicial Magistrate is reproduced hereinbelow: ---
"Accused persons present on bail along with the ir counsel Mr: Abdul Samad Advocate.
Complainant present along with his counsel Mr. Shah Gul Din, Advocate and submitted an
application for withdrawal of his complaint. Further stated that he has patched up his
differences with accused persons outside of t he court by means of three stamp papers dated
5-9-2005, 19 -9-2005 and 22 -9-2005 under the arbitration of one Haji Safar Khan and
Amanullah
4. However, after withdrawal of the case, filed by the respondent/ plaintiff, the
appellant/defendant failed to rem ove his flour grinding machine and finally he refused to
accept the arbitration award, as such the respondent/plaintiff approached the Court of Majlis -
e-Shoora, Zhob, in result the impugned judgment dated 18th July, 2006, hence the present
appeal.
5. I h ave heard Mr. Iqbal Ahmed Kasi, Advocate for the appellant, whereas Mr. W.N. Kohli,
Advocate was heard for the respondent.
6. Learned counsel for the appellant/defendant mainly contended that the value of the suit of
specific performance is Rs.60,000 (Ru pees sixty thousand) and no court -fee has been
deposited by the respondent/plaintiff, while legally he was bound to pay the court -fee. In this
respect learned counsel relied upon PLD 1978 Lahore 1252, which reads as follow: --
"----S. 7(iv) (a)---Declarat ory suit -Determination -Whether a declaratory suit involves a
right or title based upon gift -Plaint to be seen as a whole and not only relief clause ---
Plaintiff cannot escape liability to pay court fee by omitting basis of his claim from relief
clause. [cou rt fee]. "
Learned counsel again relied on section 32 of the Arbitration Act, stating that the suit of the
respondent/plaintiff was not maintainable against an arbitration agreement or award,
therefore, the present suit filed by the respondent/plaintiff is liable to be dismissed.
7. The learned counsel for the respondent/plaintiff mainly argued that the award or arbitration
decision has not made out rule of the Court; however, parties mutually with their consent
accepted it and also acted upon the same, therefore, parties are entitled to sue or defend
themselves in view of that arbitration agreement. In this respect learned counsel relied on
PLD 1971 SC 516, which reads as follow: --
"(a) Arbitration Act (X of 1940), S. 32 ---Bar to suit contesting arbit ration agreement or
award ---Award made in arbitration out of Court and not made rule of Court ---Parties
entitled to sue or defend on - basis of such award if it has been acted upon by parties by
mutual consent
8. After hearing the both sides and perusing the record including the impugned judgment, I
am of the opinion that present award, passed by the arbitrators in consequence of a dispute
referred to the arbitrators through a written agreement, whereafter, the both arbitrators after
making proper inquiry, collected information from different people and also heard the both
parties and then on account of a thorough inquiry and evidence passed the award dated 22nd
September, 2005. The arbitrators also reduced it into writing, and took the signatures of both
the parties over the same as a token of acceptance and further on basis of the said arbitration
award, the parties also got acquittal order by Judicial Magistrate. Furthermore, the evidence,
which has come on record fully shows that the dispute between the parties was referred
through a written document or agreement dated 9th August, 2005 by the consent of the
parties to the arbitrators namely Malik Haji Safar and Amanullah and the parties authorized
the arbitrators to decide the matter, to be acceptable to both the parties without any objection.
In this respect the evidence of P.W.1 Amanullah and P.W. -2 Haji Safar Khan (Arbitrators)
shows that the arbitration award dated 22nd September, 2005 was passed, after hearing both
the parties and also after visiting the place of the incident and even they spent nights for
inquiry at the site, whereafter announced the award, which was accepted by the both parties
and after their mutual acceptance or consent award was reduced into writing. Then criminal
cases pending ag ainst the parties were withdrawn. Though the appellant/defendant tried to
show that arbitrators were authorized to decide any penalty in respect of defamation of the
appellant, but the arbitrators in excess of their authority, decided the unrelated matters . In this
regard Dilbar Khan, the son of the appellant, so as also other relatives being DWs have
deposed to discredit the stilt of the respondent/ plaintiff, but in my view they badly have
failed.
9. As regard the second objection about the court -fees, it may be pointed that the order sheet
dated 28th February, 2006 shows that the respondent/plaintiff has properly paid the Court -
fees Rs.4,500 (Rupees four thousand and five hundred only), as such this objection of the
learned counsel for the appellant/def endant having no force and the same is repelled.
However, a question arises whether any arbitration award passed out of the Court on the basis
of a valid authorized document and which was accepted by the parties and then they also
acted upon it, whether co uld be executed like the awards passed under the Arbitration Act or
otherwise. Though this type of award cannot be executed or E treated an award or decision
like that passed by Court under the Arbitration Act, yet' I am of the view that as the parties on
account of an agreement declare to adopt a particular way to solve their dispute and in that
respect they by their mutual consent executed written agreement by authorizing the third
person as an arbitrator to decide their dispute. Then in consequence of th at written agreement
if arbitrators hold inquiry, take evidence, hear the parties and then decide the dispute which
the parties accept and sign as a token of acceptance, then the law of estoppel applies to such
kind of awards and parties are not allowed to go back by such decisions, award or agreement,
which they by their conduct and actions permitted to believe as true agreement or award.
Even otherwise. under the section 42 of the Specific Relief Act a party is allowed to approach
the Court, when a person is denying or interested to deny his title or character. The Court
along ' with the award also could consider other related evidence and pass an appropriate
order. Thus in the light of the above when perusing the record and evidence, it appears that at
no stage the appellant/defendant claimed ownership of the disputed land, on contrary the
respondent/plaintiff from the very beginning. claiming that the disputed land and well, on
which flour grinding machine is installed, belongs to rum and the appellant/ d efendant
unjustly or wrongly trying to grab the same. So being, the respondent/ plaintiff prima facie
hasestablished his right and title over the disputed property, therefore, in view of the above
discussed circumstances, I see no any illegality or impropr iety in the impugned judgment
dated 18th July, 2006, passed by the Majlis -e-Shoora, Zhob, as such the present appeal is
failed and dismissed.
H.B.T./155/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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