2025 C L C 2053
[Balochistan]
Before Gul Hassan Tareen, J
GHULAM NABI and others ---Petitioners
Versus
BIBI TAHIRA and others ---Respondents
Civil Revision No.702 of 2022, decided on 27th May, 2025.
(a) Arbitration Act (X of 1940) ---
----Ss. 15, 16, 17,30, 32 & 33--- Specific Relief Act (I of 1877), S. 42---Suit for
declaration ---Enforcing award through a civil suit ---Scope and effect ---Award not
having been accepted / acted upon by the parties ---Effect ---Suit for declaration was
instituted to enforce the arbitration award and, on the strength of award, relief was
sought for declaration of ownership and transfer of mutation in the names of plaintiff ---
Plea of the petitioners was that the award was partly acted upon to the extent of handing over possession of the land to the petitioners ---Relief sought was concurrently denied---
Validity ---The Arbitration Act, 1940 ('the Act 1940'), prescribes a statutory mode to
give a legal effect to an award, that is, S. 17 of the Act, 1940---Unless an award is made
rule of the court, the same would not create rights and liabilities in respect of its subject matter ---Petitioners /plaintiffs had not applied to make the award as rule of the court;
thus, the award could not have been enforced through the mode outside the provisions of the Act, 1940--- Section 32 of the Act, 1940 bars a suit instituted for a decision upon the
existence, effect or validity of an award nor shall in such suit, any such award be set -
aside, amended, modified or in any way affected otherwise then as provided by Ss. 15, 16, 17,30 and 33 of the Act, 1940 which sections relate to modification and or amendment of an award, making the award as rule of the court and setting aside of it ---
An award cannot be enforced through a civil suit; thus, petitioners' suit was barred by S. 32 of the Act, 1940---In the present case, though the petitioners / plaintiffs pleaded that the award was partly acted upon to the extent of handing over possession of the land to them, however, they failed to prove the same through evidence as three of their witnesses, separately in their respective cross -examination, admitted many facts correct
like both lands were in the possession of respondent; that both pieces of lands were waste lands and both parties had not cultivated the lands nor raised construction thereupon; and that petitioners had not an orchard nor any construction on the land---Thus, petitioners / plaintiffs failed to establish that the award was partly acted upon by handing over possession of the land---As the award had not been made rule of the court and it was not partly acted upon as pleaded by the petitioners, thus, petitioners' suit was not maintainable under S. 32 of the Act, 1940 ---Award was not accepted nor acted upon,
partly or wholly, by the parties thereto---Thus, suit for claiming ownership of the land on the strength of the award was not competent under S. 32 of the Act, 1940---Consequently, the impugned concurrent judgments did not suffer from any error of law of S. 32 of the Act, 1940 and S. 42 of the Specific Relief Act, 1877---No illegality or infirmity had been noticed in concurrent judgments calling for any interference by the High Court in its limited revisional jurisdiction ---Civil revision, filed by plaintiffs,
was dismissed, in circumstances.
Muhammad Saleem v. Muhammad Akram PLD 1971 SC 516 distinguished.
(b) Arbitration Act (X of 1940)---
----Ss. 2(a) & 17--- Party to dispute not included in arbitration proceedings ---Whether
award binding on such party--- Suit was concurrently dismissed---Held: Record revealed
that lady defendant (respondent) was the recorded owner of the land -in-question yet she
was not party to the arbitration agreement, while she had not authorized anyone on her behalf to represent her in the reference and the arbitration proceedings ---She had not
authorized the arbitrators to make an award in respect of the land nor authorized her
husband (respondent) through a legal instrument authorizing him to refer the differences to the arbitration on her behalf and then to join the arbitration proceedings ---Section 2(a)
of the Arbitration Act, 1940, defines an arbitration agreement as "a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein
or not" ---Lady defendant /respondent was owner and in possession of the land, whereas,
she had not submitted any differences to the arbitration through a written arbitration
agreement either in person or through a duly employed attorney---Reference to arbitration by an agent without having a written authorization is not binding against the principal ---An arbitrator derives his power from an arbitration agreement or the terms of
reference and he cannot decide differences unless he has been authorized to do so by the said person ---In the present matter, the arbitrators had directed for the defendant /
respondent, thus, the award was not binding on the defendant /respondent and she couldn't be obliged to transfer mutation on the strength of an award pursuant to an arbitration agreement which was not signed by her ----There was no concept of employed
authority that defendant / respondent had orally authorized her husband/ respondent to
enter into arbitration agreement on her behalf ---The arbitration agreement did not state
that it was signed by the husband /respondent, or an attorney by or on behalf of the lady
defendant /respondent ---Witnesses of the petitioners/plaintiffs had admitted that the
land was in the name of lady defendant / respondent on the date when the differences
were referred to arbitration ---Hence, the arbitration award was not binding upon the lady
defendant / respondent ---No illegality or infirmity had been noticed in concurrent
judgments calling for any interference by the High Court in its limited revisional
jurisdiction ---Civil revision, filed by plaintiffs, was dismissed, in circumstances.
Tariq Farooq v. Nasruddin PLD 1989 Quetta 1 ref.
Amir Jan Kakar for Petitioners.
Abdul Zahir Kakar for Respondents Nos. 1 to 5.
Changaiz Dashti, Assistant Advocate General for Respondent No. 11.
Dates of hearing: 16th and 26th May, 2025.
JUDGMENT
GUL HASSAN TAREEN, J. ---This civil revision petition is directed from
concurrent judgments of two courts, whereby petitioners' suit was dismissed.
2. Briefly stated, facts of the case are as follows: -
Petitioners instituted civil suit against the respondents Nos. 3 to 11 that they along with the respondents 3 to 5 had referred differences to the arbitration vide arbitration agreement dated 28 May 2002. The arbitrators made the arbitration award dated 30 May 2002 ('Award') whereby land bearing Survey Nos. 569/516, 83, admeasuring 5 rods 22 poles situated in Mahal Khushkaba Yaro was conferred upon the respondents Nos. 3 to 5 and declared them owners of that, while in exchange, declared the petitioners to have the land of respondents Nos. 2 to 5 described at paras 2 and 3 of the plaint ('the Land'). Possession of the Land was handed over to the petitioners, however, respondents Nos. 3 to 5 started interference with their possession on the Land.
In prayer clause, petitioners sought declaration that they are owners of the Land; declaration that respondents Nos. 3 to 5 are illegally interfering with their possession on the Land and, to restrain them from doing so, transfer of mutation in their names pursuant to the award.
3. Suit was contested by the respondents Nos. 3 to 5 by presenting written statement.
The arbitrators also presented written statement. Later, respondents Nos. 1 and 2 were impleaded as defendants Nos. 1 and 2 by filing first amended suit. A common amended written statement was presented on behalf of the respondents Nos. 1 to 5. After framing issues and recording evidence, the learned Trial Judge vide judgment and decree dated 24
December, 2013 dismissed the suit, which was sustained on appeal by the learned District
Judge, Pishin vide impugned judgment and decree dated 16 August 2022.
4. Mr. Amir Jan Kakar, learned counsel for the petitioners submitted that though,
respondent No. 1 was recorded owner of the Land, however, she had authorized her husband, the respondent No. 3, to refer the differences to the arbitration. Thus, the differences were referred to the arbitrators with her expressed consent and for this reason, respondent 1 along with the respondents Nos. 3 to 5 were obliged to admit the award. Next submitted that the learned Trial Judge had not framed proper issues, therefore, committed illegality, whereas, the impugned judgment of the Appellate Court is brief and non- speaking. Learned counsel
placed reliance on the judgments reported as Muhammad Saleem v. Muhammad Akram (PLD 1971 Supreme Court 516) and Malik Sardar Muhammad Qasim v. Malik Haji Abdul Ghaffar (2012 CLC 316).
5. Mr. Abdul Zahir Kakar, learned counsel for the respondents Nos. 1 to 5 submitted that
respondent 1 was the recorded owner of the Land vide mutation 160 dated 18 February 2000
and as, she had not authorized anyone to represent her in the arbitration; consequently, the award was not binding on her. Next submitted that the award had no legal effect for, the
same was not made rule of the court nor it was acted upon wholly or partly and for this
reason, the concurrent judgments do not suffer from any error of law.
6. Mr. Changaiz Dashti, learned AAG representing the official respondent supported the
concurrent judgments.
7. Heard and have gone through the record and the case laws relied upon by the
petitioners' learned counsel.
8. Petitioners pleaded that they and the respondents Nos. 3 to 5 had mutually
referred their differences to the arbitration vide arbitration agreement dated 28 May,
2002 (Ex.P/4) and after hearing both sides, the arbitrators vide arbitration award dated
30 May, 2002 (Ex.P/5) declared the petitioners as owners of the Land and, they were
placed in possession of it. However, respondents Nos. 3 to 5 breached the terms of the award and started interference with their possession on the Land. In prayer clause (C) of
the first amended plaint, petitioners sought direction to the official respondent to mutate
the Land to their names pursuant to the award. In prayer clause (A), petitioners sought declaration of ownership in relation to the Land on the strength of the award. The principle relief of the petitioners was declaration of ownership and transfer of mutation in their names. Both reliefs were sought by the petitioners on the strength of award. Petitioners had instituted suit for declaration to enforce the award. The Arbitration Act,
1940 ('Act') prescribes a statutory mode to give a legal effect to an award, that is,
section 17, the Act. Unless an award is not (sic) made rule of the court, the same would not create rights and liabilities in respect of its subject matter. Petitioners had not applied to make the award as rule of the court; thus, the award could not have been enforced through the mode outside the provisions of the Act. Section 32, the Act, bars a suit instituted for a decision upon the existence, effect or validity of an award nor shall
in such suit, any such award be set -aside amended, modified or in any way affected
otherwise then as provided by Ss. 15, 16, 17, 30 and 33, the Act which sections relate to
modification and or amendment of an award, making the award as rule of the court and setting aside of it. An award cannot be enforced through a civil suit; thus, petitioners' suit was barred by section 32, the Act.
9. Though, the petitioners pleaded that the award was partly acted upon to the extent
of handing over possession of the Land to the petitioners, however, they failed to prove
that the award was partly acted upon. The PW -2 in his cross -examination admitted it
correct that, 'both lands are in the possession of respondent 3.' (Q.5). The PW -5 in his
cross -examination admitted it correct that, 'both pieces of lands are waste and both
parties have not cultivated the lands nor raised construction thereupon.' The PW -6 in his
cross -examination admitted it correct that, 'petitioners have not an orchard nor any
construction on the Land.' (Q.12). Thus, petitioners failed to establish that the award was partly acted upon by handing over possession of the Land. As the award was not made rule of the court and it was not partly acted upon as pleaded by the petitioners; thus, petitioners' suit was not maintainable under section 32, the Act. Petitioners' learned counsel placed reliance on Muhammad Saleem's case, howev er, the said case law is not
applicable to the facts of this case for, in the case law, it was held by the
Supreme Court that, 'parties would be entitled to sue or defend on the basis of award if it
has been accepted and acted upon by the parties by mutual consent.' In this matter, the
award was not accepted nor acted upon, partly or wholly by the parties thereto. Thus, suit
for claiming ownership of the Land on the strength of the award was not competent under section 32, the Act. Consequently, the impugned concurrent judgments do not suffer from
any error of law of section 32, the Act and section 42, the Specific Relief Act, 1877.
10. Apart from what has been discussed above, respondent No. 1 was the recorded
owner of the Land vide mutation 160 dated 18 February 2000 (Ex.D/3- A). Yet, she was
not party to the arbitration agreement dated 28 May, 2002. She had not authorized anyone
on her behalf to represent her in the reference and the arbitration proceedings. She had not authorized the arbitrators to make an award in respect of the Land nor authorized the
respondent No. 3 through a legal instrument authorizing him to refer the differences to
the arbitration on her behalf and then, to join the arbitration proceedings. Section 2(a), the Act defines an arbitration agreement, that is to say, 'a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not.' Respondent No. 1 was owner and in possession of the Land, whereas, she had not submitted any differences to the arbitration through a written arbitration agreement either
in person or through a duly employed attorney. Reference to arbitration by an agent
without having a written authorization is not binding against the principle. An Arbitrator derives his power from an arbitration agreement or the terms of reference and he cannot decide differences unless he has been authorized to do so by the concerned person. In this matter, the arbitrators had directed for transfer of mutation of the Land which belonged to the respondent No. 1. Thus, the award was not binding on the respondent No. 1 and she
couldn't be obliged to transfer mutation on the strength of an award pursuant to an
arbitration agreement which was not signed by her. There is no concept of employed authority that she had orally authorized her husband, the respondent No. 3 to enter into arbitration agreement on her behalf. The arbitration agreement (Ex.P/4) doesn't state that it was signed by the respondent No. 3 an attorney by or on behalf of the respondent No. 1. The PWs had admitted that, 'the Land was in the name of respondent No. 1 on the date
when the differences were referred to the arbitration. Hence, the arbitration award was
not binding upon the respondent 1. Reliance is placed on the case reported as Tariq
Farooq v. Nasruddin (PLD 1989 Quetta 1). Relevant in the case law reads as: -
"6. Considering other limbs of the arguments it may be seen that respondent
Nasruddin who is actual owner of 'suit premises' admittedly did not sign the
agreement dated 9 -8-1982. It is also not disputed, that respondent Jamaluddin had
no written authority on behalf of his brother to refer the dispute for arbitration. Section 2(a) of Arbitration. Act, defines, arbitration agreement. It specifies that agreement for' referring the dispute for Arbitration must necessarily be executed in writing by the parties, or through duly authorized agents. Stress on the written
agreement appears to be for the reasons that before reference to Arbitration, party
should consciously apply mind to the exact nature of dispute desired to be determined through domestic tribunals of their own choice thereby depriving themselves benefit of normal law; accordingly implied authority or oral agreement has not been recognized. Therefore concept of implied authority and other principles of general law, regarding nature of agreement in violation of definition in section
2(a) of Arbitration Act, in my opinion, are not acceptable for making reference to
arbitration."
11. For the aforesaid reasons, the concurrent judgments do not suffer from any error of
the law, thus, they do not call for any interference by this Court in its limited revisional jurisdiction.
Resultantly, this civil revision petition is dismissed, however, with no order as to
costs.
MQ/70/Bal Revision 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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