2015 Y L R 1621
[Balochistan]
Before Muhammad Ejaz Swati, J
KHUDA BUKHSH and 3 others ---Petitioners
versus
HAMZA and another ---Respondents
Civil Revision No.97 of 2013, decided on 30th January, 2015.
Arbitration Act (X of 1940) ---
----Ss. 30, 32 & 33--- Arbitration agreement ---Award ---Bar to institute suit---Scope ---No suit
would lie to set aside, amend or modify the arbitration agreement or award ---Suit was barred
under S. 32 of Arbitration Act, 1940 if a party had affirmed the exis tence of arbitration award or
its validity --Aggrieved party might seek remedy of either challenging the validity or existence of
arbitration award or raising grounds for setting it aside ---Plaintiff instead of availing proper
remedy had filed suit which wa s barred under S. 32 of Arbitration Act, 1940--- Impugned
judgment and decree passed by the Appellate Court were based on proper appreciation of
evidence ---No illegality or perversity had been pointed out in the impugned judgment and
decree---Revision was dismissed in circumstances.
Tahir Ali Baloch for Petitioners.
Najam -ud-Din Mengal for Respondents.
Date of hearing: 19th December, 2014.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. --Through the instant Civil Revision Petition the
petitioners have challenged the judgment and decree dated 22 -01-2013 (hereinafter referred as
"the impugned judgment and decree"), passed by the Majlis -e-Shoora, Lasbela at Hub
(hereinafter referred as "the Appellate Court"), whereby the appeal filed by the respondents was
accepted and the judgment and decree dated 26 -7-2012, passed by the Qazi Lasbela at Uthal
(hereinafter referred as "the trial Court")was set aside.
2. The brief facts of filing the present petition are that the father of the petitioners namely
Late Wadera Lakho (plaintiff) filed a suit for declaration and permanent injunction against the
respondents before the trial Court, wherein it was averred that he is the owner of the property
bearing Khasra Nos.234 and 237, situated in Mauza Siranda, Tehsil Sonmiani, District Lasbela.
It was further averred that from the time of immemorial, he was irrigating his property from the
Wangoee Dhora (dispute in question) which according to plaintiff was flowing from east to west
and the property of the plaintiff is situat ed at western side. It was the case of the plaintiff that the
respondents blocked the flow of water and converted the same towards their land without any
cause and justification. The suit was contested by the respondents by filing their written
statements with the averments that the subject matter of the suit had already been settled between
the parties through an award, approved by the Assistant Commissioner Hub Division
3. Out of the pleadings of the parties the following issues were framed: --
4. The petitioners to substantiate their contention produced P.W.1 Jamali, P.W.2 Siddique,
P.W.3 Abdul Majeed and got recorded their statements through attorney. In rebuttal the
respondents produced DW -1 Ali Muhammad, DW -2 Raza Muhammad, DW -3 Ghulam Sarwar,
DW-4. Salah -ud-Din, thereafter the respondents recorded their statements through attorney
Sanaullah. The trial court vide judgment dated 26- 7-2012 decreed the suit filed by the plaintiff
(Late Wadera Lakho). The respondents assailed the said judgment and decree before the
Appellate Court, where, after notice and hearing vide impugned judgment and decree, the appeal
was accepted and the suit filed by the petitioners was dismissed.
5. The learned counsel for the petitioners contended that the impugned judgment a nd decree
reflects misreading and non -reading of the evidence; that the impugned judgment and decree are
contrary to Order I Rule 9, C.P.C. as suit cannot be dismissed for mis -joinder and non- joinder of
the parties; that findings of the Appellate Court are hit under Order XLI Rule 31, C.P.C., as
without determination of the points, the judgment of the trial Court had been reversed.
6. The learned counsel for the respondents controverted the contentions of the petitioners
and submitted that the subject matter of the suit had been decided through an award, which was
hit under Section 32 of the Arbitration Act, 1940; that the petitioners had failed to substantiate
their claim through evidence; that the impugned judgment and decree are in accordance with law
and based on proper appreciation of evidence.
7. Having heard the learned counsel for the parties and gone through the record of the case.
The petitioners to substantiate their claim had produced P.W.1 Jamaly, P.W.2 Siddique and
P.W.3 Abdul Majeed, who me rely stated about the dispute between the parties, however their
statements in respect of entitlement of the petitioners for using water of Wangoee Dhora, are
silent. The attorney for the petitioners stated that the flow of water of Wangoee Dhora had also
been diverted due to construction of the bridge by the National High Way Authority, but he had
not filed any proceedings against them. Besides, the attorney for the petitioners deposed that they
for the last so many years, were irrigating their land situated in Mauza Siranda, Tehsil Sonmiane,
from the water source flowing from Wangoee Dhora. He further stated that after construction of
bridge, the flow of water had been diverted and after that the respondents also blocked the flow
of water of the Wangoee Dh ora. He admitted that his property is situated in Mauza Siranda while
the property of the respondents is situated in Mauza Tapa, Tehsil Liari. The statement of plaintiff
further reveals that prior to present suit the matter was agitated before the Assistan t
Commissioner Hub Division, where an award was made by the arbitrator, which was approved
by the Assistant Commissioner, however, the petitioners could not succeed to establish their
claim through the oral evidence. The evidence of the petitioners is also silent in respect of the
description of their property and the distance of the property from the Wangoee Dhora.
8. On the other hand the respondents besides oral evidence produced documentary evidence
Ex-D/1 to Ex -D/4 through DW -3 and DW -4. The aforesai d documents pertain to the proceedings
initiated by the father of the petitioners before the Assistant Commissioner Hub Division in
respect of the same subject matter which indicates that the plaintiff through an application dated
5-7-2011 filed before the Assistant Commissioner agitated his grievance in respect of Wangoee
Dhora, consequent whereof vide order dated 25 -7-2011 the matter was referred to conciliation
committee. The plaintiff objected the decisions of the conciliation committee, consequent
wher eof with the mutual consent, the matter was referred to the arbitrators, who had given their
award dated 7 -9-2011 Ex -D/4 and the said award was approved by the Assistant Commissioner
Hub Division Hub, vide order dated 25- 9-2011. It appears that the plainti ff in his suit had also
pleaded that prior to filing the suit the matter in dispute was referred to the arbitrators, who had
given their award, which had been produced by the respondent as Ex -D/4. Admittedly an award
is existing between the parties and the very suit filed by the plaintiff was hit under section 32 of
the Arbitration Act 1940 (hereinafter referred "the Act"). Section 32 of the Act creates a bar
against the institution of the suit and it provides that if the existence or validity of an arbitra tion
award is in dispute, on any ground whatsoever, no suit shall lie for the adjudication of the said
dispute. The relevant provision is reproduced herein below: --
"32. Bar to suits contesting arbitration agreement or award. Notwithstanding any law for
the time being in force, no suit shall lie on any ground whatsoever for a decision upon the
existence, effect or validity of an arbitration agreement or award, nor shall any arbitration
agreement or award be enforced, set aside, amended, modified or in an y way affected otherwise
than as provided in this Act."
9. The aforesaid provision of law provides that no suit shall lie to set aside, amend or
modify or any way affect the arbitration agreement or award. It would be noticed that clause (I)
bars the sui t on any ground of whatsoever, it denotes inter alia, if the existence or validity of
arbitration agreement is questioned on any ground whatsoever, it could not be subject matter of a
suit, the said dispute shall be tried as provided under the Arbitration Act, 1940. Thus there can be
no doubt that if a party affirmed the existence of arbitration award or its validity, in such
circumstances, the suit is barred under Section 32 of the Act and the aggrieved party under
Section 33 or Section 30 of the Arbitrati on Act, may seek remedy of either challenging the
validity or existence of the arbitration award or raising grounds for setting it aside. The
petitioner/ plaintiff instead of availing the aforesaid remedy had filed suit which was also barred
under Section 32 of the Act.
10. The impugned judgment and decree passed by the appellate court is based on
appreciation of evidence and it also attended the aforesaid legal aspect of the matter. No other
illegality or perversity has been pointed out; therefore the im pugned judgment passed by the
appellate court does not call for any interference.
Thus, in view of the above, the Civil Revision Petition No.97 of 2013, is hereby
dismissed. Parties are left to bear their own cost.
AG/25/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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