Section 21 Arbitration Act 1940

Section 21 : Parties to suit may apply for order of reference

2019 CLC 1096 QUETTA-HIGH-COURT-BALOCHISTAN

Syed ABDUL MANAN VS Malik ASMATULLAH

Ss. 14, 17, 21, 23 & 47—Qanun-e-Shahadat (10 of 1984), Arts. 100 & 101—Balochistan Land Revenue Act (XVII of 1967), S.52—Limitation Act (IX of 1908), Art.144 (since omitted)—Suit for declaration and possession—Limitation—Compromise by the attorney on behalf of his principal—Reference to arbitration without intervention of the Court—Possession on the suit property—Document more than thirty years old—Effect—Revenue entries—Presumption of truth—Contention of plaintiffs was that they were owner of suit property—Suit was dismissed by the Trial Court but Appellate Court decreed the same—Validity—Principal of attorney had not authorized him to refer the matter to the arbitrator or enter into compromise with the defendants—Attorney should have sought permission from the principal for such act, in circumstances—Act of attorney in absence of any such permission was misrepresentation and it had element of fraud—Purported award was not only undated but it also did not contain the names and signatures of arbitrators—Terms of said award could not be enforced, in circumstances—When parties to the suit had agreed that matter in question should be referred to arbitration then they might, before announcement of judgment, apply to the Court in writing for an order of reference—Where parties to the suit had agreed or consented to refer the matter to arbitration, Court could refer the same to arbitrator and specify the time for making the award—Parties who had agreed to refer matter to arbitrator would be bound by such award—Reference to arbitration and an award in the pending suit without intervention of the Court would be nullity and such award could not be made rule of the Court—Presumption could not be attached to the document more than thirty years old when defendant had denied the same—Parties should prove said document in accordance with law—Presumption of truth was attached to the revenue entries unless rebutted through cogent evidence—Longstanding impugned mutation in favour of a party could not be disturbed due to presumption of truth attached to such entries—Impugned mutation was not challenged by the vendor in his lifetime and defendants had no locus standi to assail the same—Possession was an incident of ownership and it could be transferred by the owner of an immovable property to another—Possession would be important when there was no title document and other relevant record—Once a document and record of title came before the Court then it was the title which had to be taken into consideration—Possession on suit property could not be considered in vacuum—Mere longstanding possession would not be good against the rightful owner and the assumption that he was in peaceful possession would not work and could not operate against the true lawful owner—Plaintiffs were owners of suit property and they had sought relief of possession—Evidence produced by defendants spoke about possession which could not work against the plaintiffs—Plaintiffs had adopted due course of law by filing suit for possession—Defendants while filing written statement had denied the title of plaintiffs and raised question of limitation—Limitation would run from the date when written statement was filed by the defendants, in circumstances—Defendants had no title document to continue their possession—Revision was dismissed, in circumstances.

2016 CLC 1655 LAHORE-HIGH-COURT-LAHORE

SHABBIR AHMAD ZAFFAR VS MEMBER BOARD OF REVENUE (CONSOLIDATION)

114—Arbitration Act (X of 1940), Ss. 21, 23 & 26-A—Review—Scope—Vires of arbitration award—Applicant filed review of order passed in writ petition decided earlier, in order to challenge award made by Arbitrator—Applicant argued that the award had been issued in violation of Ss.21, 23 & 26-A, Arbitration Act, 1940 as Arbitrator/Member Board of Revenue had gone beyond powers conferred upon him—Plea raised by respondents was that scope of review was limited and points not raised during hearing of writ petition (under review) could not be raised through review application being not competent—Validity—Provisions of S.114, C.P.C. did not apply to vires of award issued by Arbitrator or violation of certain provisions of Arbitration Act, 1940—No new horizon could be opened, or grounds which had not been urged at time of hearing of case could be allowed to be introduced or Agitated in review application—No apparent error or any new point or evidence was noticed which was not considered or taken into account at time of passing the judgment—Review application did not satisfy criterion and principles of review—Review could not be granted for re-appraisement of certain facts or re-examination of same arguments or re-arguing/rehearing case on merits and additional grounds—Impugned judgment being based on sound footing could not be interfered with—High Court dismissed application being based on misconception.

2016 MLD 1157 LAHORE-HIGH-COURT-LAHORE

HASSAN BAKHSH VS SULTAN

Ss. 17, 20, 21 & 26-A—-Appointment of arbitrator—Order of reference—Power to supersede arbitration when award was void or set aside—Award to set out reasons—Trial court, rejecting objection filed by defendant, decreed the suit making award of arbitrator rule of court; appellate court maintained judgment and decree of Trial Court—Validity—Under S. 21 of Arbitration Act, 1940, all parties interested must be in agreement in sending the matter in difference between them to Arbitrator for its resolution—Consent of plaintiff and defendant-Society had not been obtained for sending the matter to arbitration—All parties interested must have been agreed that the matter would be referred to arbitrators, which was lacking in the present case—Appointment of arbitrators and referring the matter in issue to them was in violation of S. 21 of Arbitration Act, 1940—Arbitrators, while proceeding with the arbitration, had also not made any effort to associate plaintiff and respondent in arbitration proceedings, which had badly affected validity of the award—Section 17 of Arbitration Act, 1940 cast duty upon court to examine the award even on its own in order to see as to whether the same suffered from any patent illegality necessitating either setting aside of the award or its remission to Arbitrator, even when no objection had been filed by any of the parties—Under S. 26 of Arbitration Act, 1940, the arbitrators were duty bound to state in the award the reasons for the same in sufficient details to enable court to consider any question of law arising out of the award—Award in question lacked necessary reasons as required under S. 26-A of Arbitration Act, 1940—Trial court had discarded objection of defendant in cursory manner without applying its judicial mind in terms of S. 17 of Arbitration Act, 1940—Courts below, while making the award rule of court, had acted in illegal and unlawful manner—High Court, holding reference of the matter to arbitration and award rendered on basis thereof illegal and unlawful, set aside impugned judgment and decrees of both courts below and restored proceeding of the suit for decision afresh—Revision petition was allowed, in circumstances.

2016 MLD 1157 LAHORE-HIGH-COURT-LAHORE

HASSAN BAKHSH VS SULTAN

Ss. 19,20 & 21—-Parties to suit may apply for order of reference—Appointment of arbitrator—Order of reference—Arbitration is a bilateral arrangement for investigation and determination of a dispute or disputes between parties by one or more persons chosen by them, while avoiding the ordinary procedure for resolution of dispute—Arbitral tribunal derives jurisdiction either from arbitration agreement or reference transmitted to him with consent of litigating parties—Proceedings before arbitral tribunal are although not to be regulated in accordance with general principles provided under C.P.C., but such tribunal cannot be absolved from its liability to decide dispute in a just and fair manner.

2013 CLD 522 LAHORE-HIGH-COURT-LAHORE

FARMERS’ EQUITY PRIVATE LIMITED (FEP) VS MEHBOOB ALAM

Ss. 21, 22, 23, 24 & 25—Arbitration agreement entered into in a pending suit without leave of the court—Validity—Arbitration agreement without orders of a court in a pending suit being departure from mandatory provisions of Ss.21 to 25 of the Arbitration Act, 1940 could not be categorized to be lawful agreement and was not enforceable.

2013 CLC 434 LAHORE-HIGH-COURT-LAHORE

FARMERS’ EQUITY PRIVATE LIMITED (FEP) MULTAN VS MEHBOOB ALAM

O.VII, R.2 & O. XXIII, R. 3—Arbitration Act (X of 1940), Ss.34, 14, 17 & 21 to 25—Suit for recovery—Application of defendant for stay of proceedings in suit in presence of an arbitration agreement between the parties was dismissed—Said arbitration agreement was entered into by the parties after the date of institution of the suit—Effect—Suit after institution was subsequently referred by parties to arbitration without leave of the court through an agreement which was dated after the institution of suit—Section 34 of the Arbitration Act, 1940 was restricted to cases in which the suit had been instituted after agreement to refer to arbitration—Procedure for making reference to arbitration in a pending suit was provided in Ss.21 to 25 of the Arbitration Act, 1940—Reference to arbitration and award procured in a pending suit without intervention of the court were a nullity and such award could not be made rule of the court in accordance with Ss.14 & 17 of the Arbitration Act, 1940—No bar existed on parties to get their case decided by mutual agreement at any time prior to final adjudication under provisions of Order XXIII, Rule 3, C.P.C. under which existence of a lawful agreement was one of the essential prerequisites for the applicability of said provision—Arbitration agreement without orders of a court in pending suit being departure from mandatory provisions of Ss.21 to 25 of the Arbitration Act, 1940 could not be categorized as a lawful agreement and was not enforceable—Application under S.34 of the Arbitration Act, 1940 was therefore rightly dismissed by Trial Court—Appeal was dismissed.

2013 CLC 434 LAHORE-HIGH-COURT-LAHORE

FARMERS’ EQUITY PRIVATE LIMITED (FEP) MULTAN VS MEHBOOB ALAM

2012 PLD 181 PESHAWAR-HIGH-COURT

Mian ASMAT SHAH VS Mian FAIQ SHAH

21—Civil Procedure Code (V of 1908), O.III, Rr.1 & 2—Contract Act (IX of 1872), S.182—Reference of matter in suit to arbitration on statement of defendants’ counsel by court—Validity—Defendants’ counsel was appointed by his general attorney—Contents of Vakalatnama showed that all powers granted to General Attorney by defendants had been conferred upon his counsel—Defendants’ counsel was competent to make statement on behalf of defendants for referring matter to arbitration.

2012 PLD 181 PESHAWAR-HIGH-COURT

Mian ASMAT SHAH VS Mian FAIQ SHAH

Ss. 14, 17, 21 & 30—Civil Procedure Code (V of 1908), O.XXXII, R.3—Reference of matter in suit to arbitration by court with consent of parties—Application for setting aside of award filed in court by Arbitrator—Plea of minor defendant that she was minor, but court had referred such matter to Arbitrator without appointing a guardian-at-litem for her—Validity—Minor was duly represented in such through her mother—Award was not liable to be set aside merely on such ground—Court rejected such objection and made award rule of the court in circumstances.

2012 PLD 181 PESHAWAR-HIGH-COURT

Mian ASMAT SHAH VS Mian FAIQ SHAH

Ss. 14, 17, 21 & 30—Limitation Act (IX of 1908), Art.158—Award, setting aside of—Objections to award filed beyond 30 days—Objector’s plea that no notice under S.14(2) of Arbitration Act, 1940 was served upon him—Validity—Court had referred matter in dispute to Arbitrator with consent of both parties—Objector had duly participated in arbitration proceedings—Award had been filed in court in presence of both parties, thus, there was no need of issuing a notice to objector about filing of award—Such plea of objector was, merely a technical ground having no force in such circumstances.

2012 CLD 827 LAHORE-HIGH-COURT-LAHORE

SAEED AHMAD VS NIAZ AHMAD

Ss. 8, 21 & 23—Specific Relief Act (I of 1877), Ss. 9, 42 & 54— Suit for possession, declaration and permanent injunction—Appointment of referee—Rival parties had filed suits against each other—Plaintiffs had filed a suit for possession against the defendant and during pendency of said suit, the defendant had filed a suit for declaration and permanent injunction—Both rival suits were consolidated—On the appeal of the defendant, two persons were nominated for appointment as referees; and the Trial Court appointed a referee, who submitted his report in compliance of the order of the Trial Court—Trial Court, on the basis of said report, decreed the suit of plaintiffs and dismissed the suit of the defendant—Said judgment and decree was affected and Appellate Court, having dismissed the appeal, the defendant had assailed the said order—Grounds taken in the revision petition by the defendant could not be considered as the referee had been appointed with the consent of the parties; and High Court not only had approved the appointment of said referee, but had also issued the direction to decide the fate of the suit on the basis of the statement of the referee—Question arising during pendency of the suit which stood decided and settled under order of a Revisional Court, could not be allowed to be reagitated in appeal filed against the decree—Courts below had rightly passed the judgment and decree in accordance with the report of referee available on record— Revision was dismissed, in circumstances.

2012 CLD 827 LAHORE-HIGH-COURT-LAHORE

SAEED AHMAD VS NIAZ AHMAD

Ss. 8, 21, 22 & 23—“Arbitrator” and “Referee”—Distinction—Referee was the one who would make statement according to his own knowledge, but the arbitrator, after obtaining the material and recording the statement of the parties, would draw his conclusion and on the basis of that material, he got his statement recorded; and he was also liable to cross-examination.

2012 CLC 1015 LAHORE-HIGH-COURT-LAHORE

SAEED AHMAD VS NIAZ AHMAD

2012 CLC 1015 LAHORE-HIGH-COURT-LAHORE

SAEED AHMAD VS NIAZ AHMAD

Ss. 9, 42 & 54—Arbitration Act (X of 1940), Ss.8, 21 & 23—Suit for possession, declaration and permanent injunction—Appointment of referee—Rival parties had filed suits against each other—Plaintiffs had filed a suit for possession against the defendant; and during pendency of said suit, the defendant had filed a suit for declaration and permanent injunction—Both rival suits were consolidated—On the appeal of the defendant, two persons were nominated for appointment as referees; and the Trial Court appointed a referee, who submitted his report in compliance of the order of the Trial Court—Trial Court, on the basis of said report, decreed the suit of plaintiffs and dismissed the suit of the defendant—Said judgment and decree was effected and Appellate Court, having dismissed the appeal, the defendant had assailed the said order—Grounds taken in the revision petition by the defendant could not be considered as the referee had been appointed with the consent of the parties; and High Court not only had approved the appointment of said referee, but had also issued the direction to decide the fate of the suit on the basis of the statement of the referee—Question arising during pendency of the suit which stood decided and settled under order of a Revisional Court, could not be allowed to be reagitated in appeal filed against the decree—Courts below had rightly passed the judgment and decree in accordance with the report of referee available on record—Revision, was dismissed, in circumstances.

2012 CLC 308 LAHORE-HIGH-COURT-LAHORE

BARKAT ALI VS TANVIR ABBAS TABISH

21—Reference to arbitrator—Term “apply in writing”—Scope—Categorical and unambiguous joint statement was made on oath by counsel for parties, one of the plaintiff and attorney of one of the defendant—Effect—Requirement of law had been dilly fulfilled and for all intents and purposes it would be deemed that parties had applied in writing within the meaning of S.21 of Arbitration Act, 1940.

2011 CLC 841 LAHORE-HIGH-COURT-LAHORE

CHAIRMAN, WAPDA VS SYED BHAIS (PVT.) LTD.

Ss. 30, 33, 13, 15, 21 & 22—Reference to arbitrator—Powers of court—Scope—Trial Court dismissed appellant/defendant’s objection petition against award of the arbitrator—Appellant contended that the Trial Court could not reject the petition without framing the issues and providing them opportunity to lead evidence—Validity—Object of settlement of disputes through arbitration was to bypass the lengthy procedure involved in civil cases—Arbitration was a domestic tribunal controlled by chosen representatives of parties to do complete justice expeditiously without technicalities of procedural law—Trial Court did not prevent the parties from leading evidence, therefore, omission to frame issues was inconsequential—Court was not bound to frame issues and record evidence in all circumstances for decision of the suit—Function of court in arbitration cases was, principally, supervisory in nature under C.P.C.—Court had to give reasonable intendment in favour of the award leaning towards upholding rather than vitiating the same—Court would neither act as court of appeal nor override the award through its own judgment by scrutinizing the award to discover errors for the purpose of setting aside the same—Allegations of misconduct against the arbitrator were vague in nature–Arbitrator followed the procedure and answered all the pleas and objections of the parties accordingly without violating any principle of natural justice—Findings of the arbitrator were within the parameters of the submissions made by the parties before him—Possibility of a different view by appreciating the facts with a different angle was no ground for setting aside the award—Arbitrator, being the final judge on question of law and fact, his decision merited weightage unless misconduct against’ him stood proved—Not proper for the court to reappraise the evidence recorded by the arbitrator merely to discover errors or infirmities in the award—Appellant failed to point out any legal infirmity or lack of jurisdiction on the part of the arbitrator who dealt with the claims of parties minutely—Trial Court rightly dismissed the objection petition—Appeal was dismissed in circumstances.

2011 CLC 758 KARACHI-HIGH-COURT-SINDH

U.I.G. (PVT.) LIMITED through Director VS MUHAMMAD IMRAN QURESHI

42—Arbitration Act (X of 1940), Ss.21 & 34—Civil Procedure Code (V of 1908), S.89-A & O.X, R.1A—High Court under its original jurisdiction passed consent order referring the matter to arbitration on the basis of joint consenting statement made by the defendant and one of the plaintiffs representing other plaintiffs—Plaintiffs were shareholders of the same company—Said other plaintiffs challenged the consent order contending that defendant’s application for arbitration having been dismissed, no arbitrator could be appointed on the basis of joint statement and further urged that the company was no party to the suit and consent of plaintiffs was not obtained—Validity—Company was a family concern and could be treated like partnership concern—Said other plaintiffs/appellants, being in majority, were entitled to run the affairs of the company but they could not stop other shareholders from participating in affairs of the company except in accordance with law—Vakalatnama on record showed that the counsel had authority to effect compromise—No allegation of transgression of authority was made against the counsel—Interest of the company and the plaintiffs were the same; they could not take benefit of corporate veil to upset the order made on the basis of statement made by one of plaintiffs in the presence of counsel of said other plaintiffs/ appellants—Law did not bar recourse to any method of alternate dispute resolution including mediation or arbitration at any stage of the proceedings even after dismissal of application under S.34 of the Arbitration Act, 1940—Refusal of a party to arbitration at one point of time would not perpetually bar such party from subsequent recourse to arbitration—Under S.21 of the Arbitration Act, 1940, parties to the suit might apply in writing to the court for an order of reference to arbitration at any time before the pronouncement of judgment—Under S.89-A and O.X, R.1A, C.P.C. the court night adopt any alternate method of dispute resolution including meditation, conciliation or any other means including arbitration for bringing an end to the controversy and expediting disposal of the case by consent of parties-Appeal was dismissed in circumstances.

2011 CLC 758 KARACHI-HIGH-COURT-SINDH

U.I.G. (PVT.) LIMITED through Director VS MUHAMMAD IMRAN QURESHI

21—Reference to arbitration at any stage of suit—Under S.21 of the Arbitration Act, 1940, parties to the suit might apply to the court in writing for order of reference to arbitration at any time before the pronouncement of judgment.

2010 CLC 1014 PESHAWAR-HIGH-COURT

Haji ABDUL RASHID ARIF VS AZIZ REHMAN

Ss. 13, 14, 20 & 21—Application for making award as rule of Court—Procedure—Duty of Court—Said application was concurrently dismissed by the trial Court and Appellate Court—Award in question was given by the arbitrators without intervention of the Court and was based on mutual consent and agreement of the parties and was acted upon—Under S.14(2) of the Arbitration Act, 1940, after announcement of award, it was the arbitrator who had to file the award in the Court either at the request of a party or on the direction of the Court—Court, for the purpose of making the award rule of the Court, was not required to act mechanically as if it had to affix its stamp of approval on the award without determining its legality, maintainability and the question of its executability—Party could not file an award in the Court to make the same rule of the Court specially when the award prior to getting the authentication and sanction of the Court, was acted upon between the parties; in such a state of affairs, it would become useless to ask for its making of rule of the Court—Two Courts below after proper appreciation of evidence on the record had rightly dismissed application of the petitioner—Counsel for the petitioner was unable to point out any illegality or irregularity in the exercise of jurisdiction by the two Courts below—Petition was dismissed.

2010 YLR 984 LAHORE-HIGH-COURT-LAHORE

NOOR MUHAMMAD VS KHAN MUHAMMAD

21—Specific Relief Act (I of 1877), S. 42—Suit for declaration—Arbitration—Mutual agreement to settle disputes—Plaintiffs filed suit for declaration wherein they had challenged the orders passed by Additional Deputy Commissioner (Consolidation) and Additional Commissioner— During pendency of suit, parties referred the matter to arbitrators and an agreement was executed whereupon award was signed by the majority in favour of plaintiffs—Defendants filed objections that award had been filed without intervention of the court—Trial Court passed an order that award was without intervention of the court—Plaintiffs filed appeal against the order of Trial Court which was allowed by the Appellate Court—Order sheet of the Trial Court indicated the names of the arbitrators—Arbitration agreement and Award was mentioned in the order sheet but Trial Court had wrongly come to the conclusion ‘that as parties entered into the arbitration agreement without intervention of the court and award filed in the court had no force—Defendants had no right to resile from their consent—Party to the suit, before passing the decree could make agreement and settle their dispute in terms of S.21 of the Arbitration Act, 1940—No bar on the parties to get their case decided by mutual agreement at any time prior to final adjudication—Appellate Court had rightly made award as rule of the court—No misreading or non-reading of evidence or any other legal infirmity had been found with the judgment rendered by the Appellate Court warranting interference by High Court in revisional jurisdiction—Revision petition was dismissed by High Court.

2007 YLR 505 KARACHI-HIGH-COURT-SINDH

NAVEED ISHTIAQUE VS S.S. ASSOCIATES (PVT.) LTD. Through Chief Executive

—Ss. 2-A, 5 & 21—Specific Relief Act (I of 1877), Ss.42 & 54—Suit for declaration and permanent injunction—Appointment of arbitrator—Revocation of authority of appointed arbitrator—Application for—Pending suits for declaration and permanent

2006 YLR 1283 LAHORE-HIGH-COURT-LAHORE

ALI HASSAN VS Mst. HAKIMAN

–S. 42—Arbitration Act (X of 1940), S.21-Suit for declaration—Dispute between parties was referred to Referee by the Court with consent of the parties—Referee submitted his statement to the Court in respect of reference whereupon the suit of plaint

2006 CLC 514 LAHORE-HIGH-COURT-LAHORE

TARIQ HUSSAIN VS ADDITIONAL DISTRICT JUDGE, VEHARI

—S. 21—Reference of dispute to arbitration by Court at the request of parties—Non-filing of written application by parties—Effect—Written application by parties would not be essential—Such request of parties, if following by their statements b

2005 YLR 2709 KARACHI-HIGH-COURT-SINDH

MUJTABA HUSSAIN SIDDIQUI VS SULTAN AHMED

—Preamble, Chaps.II [Ss.3 to 19], III [S.20] & IV [Ss.21 to 25]—Modes of arbitration–Perusal of Arbitration Act, 1940, reveals that there are three modes of arbitration: Arbitration without intervention of Court; Arbitration with intervention of Cour

2004 SCMR 515 SUPREME-COURT

DOST MUHAMMAD VS GHAUS MUHAMMAD

—-Ss.17 & 21—Constitution of Pakistan (1973), Art.185(3)—Award made rule of Court—Father (defendant) transferred suit-land by way of family settlement to all his heirs from both wives—Some children (plaintiffs) later on claiming suit-land to hav

2004 SCMR 1292 SUPREME-COURT

NAZIR AHMAD and others VS MUHAMMAD QASIM and others

—-Art. 33—Arbitration Act (X of 1940), Ss.21, 22, 23, 24 & 25–Admission by persons expressly referred to by party to suit—Arbitration in suits—Ingredients of Art. 33, Qanun-e-Shahadat, 1984—Whenever a case is agreed upon to be decided on the st

2004 PLD 722 LAHORE-HIGH-COURT-LAHORE

NATIONAL FIBERS LTD VS PAKISTAN through Secretary Privatization Commission, Ministry of Finance, Islamabad

—-Ss. 15, 17, 20, 21 & 30—Civil Procedure Code (V of 1908), O.XXIII, R.I—Filing of arbitration agreement in the Court—Setting aside of award—Withdrawal of suit—Making award rule of the Court—‘Contents of the award did not show any infirmity

2004 YLR 1882 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SALEEM VS MUHAMMAD SHAFI

—-Ss.14, 17 & 21—Arbitration without intervention of Court—Scope—Award making rule of the Court—Proceedings were pending in the court and without intervention of the Court matter was referred to arbitrator for decision—Award given by the arbit

2004 MLD 2002 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IDREES VS MUHAMMAD YOUNUS

–S. 42—Arbitration Act (X of 1940), Ss. 21 & 22—Arbitration agreement—Parties executed an agreement for deciding their dispute through arbitration, when civil revision about the same dispute was pending in the High Court—Validity—Parties were o

2003 SCMR 1831 SUPREME-COURT

Mst. NAZIRAN BIBI VS MUHAMMAD ASHRAF

—-S.21—Civil Procedure Code (V of 1908), O.XXXII, R.7—Reference of dispute to arbitration on joint application of parties to the suit–ÂContention of defendant was that mother of minor plaintiffs had of authority to make such reference without leav

2003 YLR 1028 LAHORE-HIGH-COURT-LAHORE

AHMAD KHAN VS Mst. NAZIRAN BIBI

—-Ss. 5 & 21—Revocation of authority of arbitrator appointed with consent of parties—During pendency of appeal against judgment and decree passed by Trial Court, Appellate Court with ‘consent of parties appointed arbitrator nominated by parties for

2003 PLD 208 LAHORE-HIGH-COURT-LAHORE

HAJI MUHAMMAD VS Syed MANZOOR HUSSAIN SHAH

—-Ss. 2(c) & 21—West Pakistan Urban Rent. Restriction Ordinance (VI of 1959), S.2(b)—“Court”—Rent Controller—Not a “Court”—Application for order of reference—Parties to a pending suit were required to apply to the Court for referring their d

2003 YLR 3289 KARACHI-HIGH-COURT-SINDH

Syed MUKHTAR HUSSAIN NAQVI VS Mst. Hajiani ZUBEDA

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2003 YLR 1696 KARACHI-HIGH-COURT-SINDH

NATIONAL ENGINEERING SERVICES PAKISTAN (PVT.) LTD VS STEEL MILL CORPORATION

—-S. 21—Civil Procedure Code (V of 1908), S.11—Reference—Res judicata—When a party exercises its option to convert a dispute into a reference, other party is obliged to enter into the arbitration and subject to limitation, same cannot be resiste

2003 CLC 607 KARACHI-HIGH-COURT-SINDH

PAKISTAN EMPLOYEES’ COOPERATIVE HOUSING SOCIETY VS AWAMI CONSTRUCTIONS CO. LTD

—-Ss. 21 & 24—Arbitration in suit—Term “matters in difference between them” used in S.24 of the Arbitration Act had wider connotation than the term “any matter in difference between them in the suit” used in S.21 of the said Act.

2002 SCMR 473 SUPREME-COURT

MUHAMMAD ITTAYYAT KHAN VS MST. REHMAT KHATOON

Arbitration Act 1940 —-Ss. 21 & 30—Constitution of Pakistan (1973), Art. 185(3)—Arbitration–Award, making same rule of Court—Sole arbitrator was appointed with consent of the parties—Arbitrator, after making necessary inquiries and hearing the parties gave his award and the same was made rule of the Court—No allegations of misconduct or that the award was improperly procured were on the record—Notices were duly issued to the parties and counsel of both the parties appeared in the Trial Court—Arbitrator heard the parties and their elders so that there should be permanent settlement of the dispute between the parties, who were related inter se—Both the Courts below and High Court as well had considered the evidence in its proper perspective—Effect—No misreading or non-reading of evidence, or misconstruction of law having been found and there being concurrent findings of Courts below, Supreme Court declined to interfere with such judgments—Leave to appeal was refused.

2002 PLD 310 SUPREME-COURT

MESSRS JAMES CONSTRUCTION COMPANY (PVT.) LTD VS PROVINCE OF PUNJAB

Arbitration Act 1940 —-S. 21—Parties to the suit, before the passing of decree, could make an agreement regarding the settlement of their dispute by virtue of S.21 of the Arbitration Act, 1940.

2002 YLR 2238 LAHORE-HIGH-COURT-LAHORE

Malik MUHAMMAD MUMTAZ VS Malik ABDUL RAUF

—-S. 21—Civil Procedure Code (V of 1908), S.12(2)—Arbitration proceedings—Setting aside of such proceedings on` the basis of fraud—Award was made rule of Court whereby plot of respondent was declared to be purchased by petitioner—Respondent fi

2002 MLD 1175 LAHORE-HIGH-COURT-LAHORE

Haji ANWAR ALI VS BASHIR AHMAD

Arbitration Act 1940 —-S.21—Reference to arbitration—Where parties were already before a Court, but decided to have their dispute referred to arbitration during pendency of those proceedings, it was incumbent upon them to change such course of resolution of their dispute through an application in writing—Requirement of application as envisaged in S.21 of Arbitration Act, 1940, was mandatory—In absence of such request, it could not be said that reference made to referee was reference to an arbitrator.

2002 CLC 421 LAHORE-HIGH-COURT-LAHORE

HAJI ANWAR ALI VS BASHIR AHMAD

Arbitration Act 1940 —-S. 21—Decision by referee—Concurrent findings of fact by the Courts below—Non-filing of any application in Trial Court for reference to referee—Suit for recovery of a sum of Rs.21,000 was pending when the parties decided to get their dispute resolved through referee—Referee decided the matter in favour of the plaintiff and both the Courts below concurrently maintained decision of the referee—Defendant raised the plea that referee was like an arbitrator and before the matter was referred for decision by referee, requirements of S.21 of the Arbitration Act 1940 had not been complied with—Validity—Where there was no request to the Trial Court, it could not be said that the reference was made to an arbitrator—Parties, in the present case, had themselves opted for a particular mode of resolving their dispute and there was nothing illegal in the course which was adopted—Trial Court had only approved the agreement of the parties by referring the matter to the person named by both the parties and the, person named also had implicit nexus with the dispute–Nothing in the exercise of jurisdiction by Trial Court could be termed as irregular or infirm—Where no illegality or infirmity was found in the judgments of the two Courts below, High Court declined two interfere with the same.

2002 CLC 107 LAHORE-HIGH-COURT-LAHORE

HAMID RAZI SARWAR VS ROHI SARWAR

Arbitration Act 1940 —-S. 21—Reference to Arbitrator—Application in writing to Court for reference—Pre-condition–Under the provision of S.21 of Arbitration Act, 1940, it is a condition precedent for referring any matter to the Arbitrators that all the parties must agree to refer the same to the Arbitrators and all of them are also under legal obligation to file such application before the Court.

2001 YLR 2162 LAHORE-HIGH-COURT-LAHORE

CHIRAGH-UD-DIN VS MUHAMMAD ASLAM

Arbitration Act 1940 —-Ss.21, 30 & 33—Setting aside the award—Jurisdiction of the Court—Law leans in favour of upholding the award and not vitiating the same—Court, while examining the legality of an award, would not and should not act as a Court of appeal—In order to discover error or infirmity in the award, the Court while hearing the objections to the award could not undertake reappraisal of evidence recorded by the Arbitrator.

2001 CLC 613 LAHORE-HIGH-COURT-LAHORE

PROVINCE OF PUNJAB VS SHER MUHAMMAD & CO.

Arbitration Act 1940 —-Ss. 21 & 39—Arbitration—Appointment of arbitrator, without the consent of all the parties—Joining of arbitration proceedings by non-consenting party—Effect—During pendency of suit one of the parties applied for appointment of arbitrator, Trial Court without the consent of all the parties appointed arbitrator and made award rule of the Court —Although there was arbitration clause in the agreement, yet none of the parties resorted to that clause of the agreement prior to the filing of the suit —Validity–Arbitration in suit pending before a Court, could only be possible under S.21 of Arbitration Act, 1940, by agreement of all the parties and not at the choice or option of one party—Despite the objection by one of the parties, Trial Court proceeded to refer the matter to arbitrators which was not permissible as the Court had no such power in view of S.21 of Arbitration Act; 1940—Order of reference to arbitrator and award thereby was invalid and nullity—No amount of acquiescence or participation by the objecting party in the proceedings before arbitrators, could validate what was invalid from its inception—Judgment and decree passed by the Trial Court, on the basis of such award was set aside.

2001 CLC 1216 KARACHI-HIGH-COURT-SINDH

KAURAL VS MUHAMAD CHUTTAL

—-Ss. 17, 21 & 30—Award—Allegation of—Misconduct on the part of arbitrator—Scope—Refusal to make award rule of Court—.Sole arbitrator was appointed by the Trial Court on the request of parties who submitted his award after providing opportun

2001 CLC 365 KARACHI-HIGH-COURT-SINDH

ABDUL HAKEEM VS ABDUL RAHIM ARIF

Arbitration Act 1940 Ss. 21, 22, 23 &.34—Arbitration—Referring the matter to arbitrator by Court—Scope—Where one of the parties was not ready and willing for the same, the matter could not be referred to arbitrator especially when the defendant failed to invoke the provisions of S.34 of the Arbitration Act, 1940 for the stay of said proceedings and to seek directions for reference to arbitration—Application was dismissed in circumstances.

2000 YLR 2503 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ZAFFAR VS MUHAMMAD SINAKDAR

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2000 YLR 253 LAHORE-HIGH-COURT-LAHORE

GHEE CORPORATION OF PAKISTAN LTD. VS MULTAN CHEMICALS LTD.

Arbitration Act 1940 —-Ss. 21 & 23—Reference to arbitrator–Decision on question of law by arbitrator–Clear agreement existed between the parties that arbitrators would have full authority to decide all the questions of law and facts raised before them by the par-ties —Effect–Objection raised by one of the parties that question of law could not have been decided by the arbitrators, was frivolous which was rejected accordingly.

1999 YLR 295 LAHORE-HIGH-COURT-LAHORE

KARAM ELAHI VS THE STATE

Arbitration Act 1940 —-Ss:21, 23, 33 & 39—Civil Procedure Code (V of 1908), S.34—Award beyond the scope of reference made to the arbitrator–Grant of interest on disputed amount–Jurisdiction of arbitrator—Suit for rendition of accounts was filed by respondent–Preliminary decree was passed by Trial Court—Both the parties made a joint statement before Trial Court for appointment of an arbitrator—Dispute, referred to arbitrator was as to what amount was due to the respondent in pursuance of the preliminary decree—Arbitrator, while making the award, included the amount due alongwith interest over that amount–Appellant filed objection with regard to the amount of interest but Trial Court made the award .as rule of Court—Validity—Only matter referred to the arbitrator was about the determination of the amount due to respondent in terms of his claim which was put forth in his suit—No claim was made for interest, nor the same was allowed to the respondent by way of preliminary decree–Arbitrator, therefore, in law had no authority to grant interest—Error in granting interest was apparent on the face of the award and the same could not be made rule of the Court to that , extent—Appeal was accepted in circumstances.

1999 CLC 319 LAHORE-HIGH-COURT-LAHORE

QURBAN HUSSAIN VS MUGHAL KHAN

Arbitration Act 1940 –Ss.21 & 22—Reference to arbitrator—Decision of Umpire —Validity–Convtroversy between parties was about the right of passage—Arbitrators were appointed with consent of parties—Umpire was appointed on account of inconsistent view of Arbitrators—Decision of Umpire was in excess of powers conferred upon him—Trial Court accepted award to the extent of matter referred to Umpire—Award was made rule of Court to that extent —Principles–Reference to Arbitrator had to be confined to subject-matter of suit and any award on matter not covered by reference was void to that extent—Same principle would apply to any consequential decree that might be passed by Court in terms of such award.

1999 YLR 1340 KARACHI-HIGH-COURT-SINDH

MONO ENGINEERING (PVT.) LIMITED VS KARACHI DEVELOPMENT AUTHORITY

—-Ss. 14(2), 20 & 21—Reference to arbitrator—Estoppel—Persons conceding to proceedings before arbitrator were not authorised in that behalf—Objection to such proceedings—Validity—Proceedings before arbitrator continued for sixteen months whe

1999 CLC 1005 KARACHI-HIGH-COURT-SINDH

ABDUL SALAM VS MUHAMMAD YAQOOB

Ss. 8, 14 & 21—Appointment of arbitrator—During the pendency of arbitration proceedings the sole arbitrator had died—Petitioner filed an application for the appointment of another arbitrator, without issuance of notice to the other party—Maintainability—Issuance of a notice under S. 8, Arbitration Act, 1940, was a legal pre-condition to the arbitration proceedings— Held, petition under S. 8 of the Arbitration Act, 1940 in the special circumstances of the case was to be treated to be a notice—Objection to the maintainability of the petition on the ground of non-issuance of notice was overruled and the petition was _allowed in circumstances.

1996 PLD 1 QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL KARIM VS ZAR BIBI

Ss. 21 & 47 — Civil Procedure Code (V of 1908) O XXIII, R.3â€”Award obtained otherwise than in accordance with provisions contained in S-47, Arbitration Act, 1940 — Such award can at least be- acknowledged as compromise/adjustment of suit and no decree can be passed thereon under provisions 0″11, R3, C.P.C.-No award could be foisted upon parties without their consent — Where arbitration agreement was not consented to by all concerned parties, such agreement would be invalid and could not give jurisdiction to arbitrator to give his verdict and decide dispute existing between the parties — Award given on basis of void reference could not be termed as valid — Award made on invalid reference would not bind even consenting parties being void altogether — Arbitration agreement being contract, consent of parties was essential for resolving their disputes through arbitration — Join consent of all parties interested was necessary at the point of time when Court was to take award into consideration as compromise or adjustment– Satisfaction of Court regarding such adjustment was essential prerequisite before provisions contemplated under O.XXIII, R.3, C.P.C. could be invoked — Courts below were correct in holding that arbitration agreement was not effected with consent of all parties and that award based on such agreement was not valid.

1996 CLC 1932 LAHORE-HIGH-COURT-LAHORE

NAVEED AZIZ VS RAUF ALI SYED

Arbitration Act 1940 S. 21—Qanun-e-Shahadat (10 of 1984), Art. 33—Referee—Arbitrator–Distinction—Dispute between parties referred to third person for decision—Such person after recording evidence submitting report to Court—Status of person so appointed by consent of parties—Status of illustrations attached to a section in an Act—Illustrations attached to a section of any Act are deemed to be part of the Act itself, therefore, reference to illustration attached to Art. 33, Qanun-e-Shahadat, .1984, would show that Referee was required to furnish information to Court according to his personal knowledge and that knowledge must be for the period preceding his appointment and not subsequent thereto—Information so furnished by Referee would amount to admission between the parties with the result that lis must be decided, on basis thereof—Where a person was called upon to decide dispute after receiving evidence and hearing arguments as also collecting material etc. he could not be termed to be Referee—Terms of reference settled between parties would show that even parties meant to appoint Arbitrator so as to resolve dispute between them and role assigned by them to nominated person fits in with role of Arbitrator—Report of person nominated by parties being in nature of award of Arbitrator same could not be accepted unless objections thereto had been called upon by Court as prescribed by law and until such time same had been decided—Judgment based on report of such person was, thus, vitiated because of non-compliance with provisions of law applicable to facts and circumstances of case—Judgment and decree based on report of third person (appointed by consent of parties) was set aside and case was remanded to Trial Court for proceeding therewith and decide the same in accordance with law.

1995 PLD 205 LAHORE-HIGH-COURT-LAHORE

ABDUL QAYYUM KHAN VS GOVT. OF PUNJAB

Arbitration Act 1940 Ss. 20, 21, 33 & 17—Three modes of arbitration viz. arbitration with intervention of Court where there was no suit pending; arbitration in suit pending before Court; and arbitration without intervention of Court, outlined and illustrated.

1995 CLC 1338 KARACHI-HIGH-COURT-SINDH

MUHAMMAD ASHRAF VS ABDUL MAJID

Arbitration Act 1940 S. 21—Partnership Act (IX of 1932), S. 4—Civil Procedure Code (V of 1908) S.151—Dispute between partners—Reference of dispute to arbitrator in terms of partnership agreement—Court after service of proper notice to defendant appointed Official Assignee as Receiver —Intervenor’s application for re-calling such Order—Validity—Facts of partnership business were not disputed—Defendants while filing written statement referred to specified documents but neither filed the same nor counter-affidavit was filed by him–Partnership deed specifically stated that in case of dispute arising between the partners in respect of partnership business, parties would have to refer such matter to Arbitrator under Arbitration Act, 1940 and award of such Arbitrator would be final and binding upon all partners—Plaintiff had filed suit on basis of such clause of partnership deed—Official assignee took over business of partnership and defendant was restrained to interfere in the affairs of Official Assignee —Intervenor, thereafter, claiming to be tenant of the premises in question, filing application under S. 151, C.P.C. for recalling orders passed by Court for appointment of Official Assignee and the order of injunction–Intervenor’s application appeared to be prima facie an unholy alliance in between intervenor and defendant so that unnecessary handicaps and hurdles be created in suit filed by plaintiff—Provision of S. 151, C.P.C. was not attracted and such application was also not necessary for ends of justice nor there was any material so as to prevent abuse of process of Court—Application being misconceived was dismissed in circumstances.

1994 CLC 1530 LAHORE-HIGH-COURT-LAHORE

HAQ NAWAZ CHOHAN VS TARIQ AZAM

—-S. 47—Arbitration Act (X of 1940), S. 21—Reference to arbitration by executing Court—Validity—Executing Court while executing decree had no jurisdiction to refer the dispute raised during execution proceedings to arbitrator.

1994 CLC 1530 LAHORE-HIGH-COURT-LAHORE

HAQ NAWAZ CHOHAN VS TARIQ AZAM

1993 MLD 1474 LAHORE-HIGH-COURT-LAHORE

KHAN MUHAMMAD VS ABDUL RASHID

Arbitration Act 1940 —-Ss.21 to 25—Reference to arbitration in pending suit—Mode of reference– Effect —Parties whose interests were involved in pending litigation could refer their differences to arbitration at any time before the pronouncement of judgment but with intervention of the Court and not otherwise—Parties were required to apply in writing to Court for an order of reference; appointment of arbitrator would be made in the manner, as agreed upon between the parties–Arbitrator would be given reasonable time for announcing the award, and so long as the matter remained with the arbitrator, Court would not deal with the same in any manner, save as permitted by the provisions of the Arbitration Act, 1.940—Suit would however, continue so far as in relation to those parties who had not agreed to such reference, in the event of same being separable from the rest of the subject-matter of dispute and only those parties who had actually joined the exercise being bound by the award.

1992 CLC 771 LAHORE-HIGH-COURT-LAHORE

WATER AND POWER DEVELOPMENT AUTHORITY VS PAKISTAN ASSOCIATED CONSTRUCTION

Arbitration Act 1940 Ss. 21 & 39—Civil Procedure Code (V of 1908), S.115—Expression “where in any suit all parties agree” in S.21—Connotation—Court can make reference only when all interested parties consent to it—Defendant in suit opposing application for reference under S.21 made by plaintiff—Order of Court, in circumstances, referring matter to arbitration was wholly without jurisdiction–Order of trial Court under S.21 although not appealable under S.39, High Court exercising suo motu revisional powers under S.115, C.P.C. set aside order of trial Court being wholly without jurisdiction.

1992 CLC 2124 KARACHI-HIGH-COURT-SINDH

IFTIKHAR BROTHERS VS TRUSTEES OF PORT OF KARACHI

Ss. 14, 17, 20 & 30 — Objection to making award rule of Court — Defendant had contended that arbitrator giving award was guilty of misconduct inasmuch as basis of claim of plaintiff before him was instructions issued by Government with regard to determination of his claim and that not only those instructions were misconstrued, but directive contained therein was also violated by arbitrator — No doubt plaintiff in support of his claim had referred before arbitrator those instructions, but arbitrator had not based his award on those instructions — Neither those instructions were referred or mentioned in award by arbitrator nor award was based on those instructions — In absence of a reference in award to those instructions, it could not be said that award was erroneous or’ was based on such instructions — Objections of defendant against award were rejected and award was confirmed and made rule of Court.

1990 CLC 293 PESHAWAR-HIGH-COURT

NADIR KHAN VS ZEENAT BIBI

—-S.5–Arbitration Act (X of 1940), Ss. 13, 14, 17 & 21–Suits for restitution of conjugal rights and dissolution of marriage cannot be referred to arbitration.[Muhammadan Law].

1990 MLD 2115 LAHORE-HIGH-COURT-LAHORE

ABDUS SATTAR VS WALI MUHAMMAD

Arbitration Act 1940 —–S.21—Constitution of Pakistan (1973), Art.199—Constitutional jurisdiction–Phrases—“Parties interested”—Connotation of—Question whether specified persons i.e. officials were “parties interested” within the meaning of S.21, Arbitration Act, 1940, was a mixed question of fact and law—Appellate Court had found such persons, as mere pro forma defendants—Contesting parties had filed four suits inter se, which had been consolidated and specified persons were party in only one of such suits—Contesting respondents including the one in whose suit specified persons were included as defendants had made statement before Appellate Court that name of specified persons be deleted from list of defendants—Such specified persons thus ceased to be parties to suit with the result that award and decree of Court in terms of that award were not binding upon them—Specified person’s names having been deleted from the suit they could have no grievance against award and decree, because they were not “parties interested” within meaning of S.21, Arbitration Act, 1940 and were’also not aggrieved parties within meaning of Art.199, Constitution of Pakistan—Appellate Court while deciding whether specified persons were or were not “parties interested” acted within its jurisdiction, therefore, its judgment could not be characterised as a void judgment or a judgment coram non judice—Constitutional petition filed against appellate Court’s judgment was incompetent.–[Words and phrases].

1990 MLD 1937 LAHORE-HIGH-COURT-LAHORE

ALLAH BAKHSH VS SHAMSHAD BEGUM

—Ss. 47, 21 & 23—Any reference to arbitration without the intervention of the Court where the suit was pending with regard to the same subject matter would be violative of Ss. 21, 23 & 47 of the Act—Arbitration award, however, could be utilised as a

1990 MLD 106 LAHORE-HIGH-COURT-LAHORE

FAIZ-UL-HAQ VS ABDUS SALAM

Arbitration Act 1940 —Ss. 21 & 23—Qanun-e-Shahadat (10 of 1984), Art. 33—Disputes between parties to suit—Reference to third person—Third person so appointed by Court with consent of parties whether a “referee” or an “arbitrator”—Test—Appointee’s status and effect of his report.

1989 CLC 1825 SUPREME-COURT-AZAD-KASHMIR

UNITED BUILDERS CORPORATION VS AZAD JAMMU & KASHMIR MINERAL & INDUSTRIAL DEVELOPMENT CORPORATION

Arbitration Act 1940 —S.21–Word “suit” in S.21 is though used in wider sense but does not include every type of judicial proceedings but includes an appeal, revision and then it would include Appellate or Revisional Court, as the case may be–Trial Court or the Appellate Court, as the case may be, is competent to refer a case for arbitration under S.21 in pursuance of the relevant clause of the agreement.

1988 CLC 1472 KARACHI-HIGH-COURT-SINDH

AMANULLAH VS SIRAJ AHMED

3–Arbitration Act (X of 1940), Ss. 2(c) & 21–First appeal pending before High Court–During pendency of appeal, on application of parties, matter was referred to arbitration–Award was filed in Appellate Court and decree of Trial Court was modified in accordance with terms of award after dismissal of objections to award of appellant–l ntra-Court Appeal against dismissal of objections by Appellate Court (Single Judge of High Court)–Reference to arbitration at appellate stage whether misconceived–Competency of appeal, against dismissal of objection to award by Single Judge of High Court.

1985 SCMR 401 SUPREME-COURT

WAJID ALI VS SAJID ALI

—S.21–High Court, held, would enjoy in appeal power of making a reference to arbitration–Such power being available to High Court as an appellate Court, it was immaterial that it was held to be not a civil Court stricto senso in Hussain Bakhsh’s case

1985 PLD 422 KARACHI-HIGH-COURT-SINDH

ABDUL MATEEN VS YOUSUF BILAL

Ss. 21 & 24-Reference-Matter in dispute in a pending suit–All parties interested must agree to submit their difference to arbitration and apply in writing to Court for an order of reference-One party not joining application when prayer was made for reference-No valid reference, held, could be made to arbitrator under S. 21 in circumstances.

1984 CLC 546 QUETTA-HIGH-COURT-BALOCHISTAN

ARBAB ABDUL QADIR VS BIBI FATIMA

— Ss. 21, 23 & 41 (b) read with Schedule Second-Civil Procedure Code (V of 1908), O. XXXIX, .rr. 1 & 2-Civil Court, held, has no power to issue interim injunction under O. XXXIX, rr. I & 2, C. P. C. after reference of dispute made to arbitration-Interim

1983 SCMR 231 SUPREME-COURT

MUHAMMAD HUSSAIN VS GHULAM RASOOL

— S. 21–Reference to arbitration-Counsel representing parties agreeing to reference of dispute to arbitration-Counsel representing parties particularly petitioners not shown to have been incompetent in any manner to make such a statement or referring m

1983 PLD 621 KARACHI-HIGH-COURT-SINDH

PROVINCE OF SIND VS HAJI KHAN

21-Appointment of Arbitrator-Appellants themselves making application for appointment of sole arbitrator other than ones mentioned in arbitration clause and also taking no exception to such appointment in objections filed to award-Appellants, held, cannot take plea that according to arbitration clause two arbitrators one by each party were required to be appointed and that dispute could not be referred to sole arbitrator.

1982 CLC 2377 LAHORE-HIGH-COURT-LAHORE

HASHMAT ALI VS MUHAMMAD ALI

Ss. 21 to 25 8c 47, proviso–Arbitration–Contention that person named in agreement was to act as mediator and not arbitrator-Documents showing .that parties appointed such persons as arbitrator to give award–Contention repelled.

1982 CLC 353 LAHORE-HIGH-COURT-LAHORE

WAPDA VS NAEEM TRADING CO.

Ss. 11, 21 & 28, First Sched., para. 3-Arbitrator-MisconductMeans not only moral turpitude but also neglect or breach of duty-Contravention of provision of para. 3 of First Sched. of Act apparent on part of Arbitrator-Proceedings recorded by him amply smacking lack of reasonable despatch in proceeding with reference and making award Such, held, clearly amounted to misconduct and impugned order of his removal does not suffer from illegality.-[Words and Phrases-Arbitrator].

1981 CLC 423 LAHORE-HIGH-COURT-LAHORE

AKHTAR BASHIR VS MUHAMMAD BASHIR

21-Award, challenge to-Estoppel -Parties in pending case consenting to refer matter to arbitration, signing proceedings, and award subsequently submitted-Parties, held, estopped from questioning validity of award on ground of reference having not strictly been made m compliance with provisions of S. 21 and no application having been made in writing-Evidence Act (I of 1872), S. 115.–[Estoppel Award].

1980 CLC 967 LAHORE-HIGH-COURT-LAHORE

HASHMAT BIBI VS MUHAMMAD RAFI

—- Ss. 21 to 25 read with Civil Procedure Code (V of 1908), O. XXIII, r. 3-Compromise-No bar on parties to get their case decided by mutual agreement at any time prior to final adjudication-Existence of lawful agreement or compromise adjusting suit whol

1980 PLD 122 LAHORE-HIGH-COURT-LAHORE

NAZAR HUSSAIN VS GHULAM ZOHRA

21-Arbitration-During course of proceeding parties agreeing to refer dispute to referee agreeing to be bound by his decision-Such agreement, held, not related to reference of dispute to arbitrator Referee not appearing in Court in spite of several adjournments Agreement, held further, rightly revoked by Court in circumstances of case.-[Arbitration].

1979 CLC 95 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD RAMZAN VS NAZIR AHMAD

Ss. 21 & 39 read with S. 2 (c)–Contention that forum for appeals brought under S. 39 to be determined by value of property dealt with m award and such property having valued more than Rs. 25,000, appeal should have been filed in High Court and not before District Judges-Contention, held, not correct-Appeal under S. 39, held further, competent before such Court as empowered to hear appeals against decree passed by a civil Court in cases of dissolution of partnership and rendition of accounts. [Appeal (civil)]

1978 PLD 362 KARACHI-HIGH-COURT-SINDH

PAKISTAN VS CHAUDHRY BROS. LTD., LAHORE

Ss. 21, 22 & 23 read with Civil ‘Procedure Code (V of 1908), O. XX, r.17?Arbitration, reference to?Order merely disposing of an application under O. XX, r. 17 ? of Code of Civil Procedure, 1938, pending before Court and recording consent and intention of parties to have fresh arbitration of outstanding disputes fn terms of bate contract”??”Basic contract” an arbitration agreement very wide in scope and embracing all undecided disputes arising under first arid second contracts?Ore award made thereunder yet arbitration agreement not exhausted and undecided disputes existing on date of Court’s order covered by basic contract?Undecided disputes, held, could be referred to arbitration and not incumbent upon Court to specify precise disputes in its consent order and Court’s order could not be said to be vague and indefinite?Court’s order not being an order of reference in a suit, question of contravention of Ss.21, 22 & 23 of Arbitration Act, 1940, held, did not arise. [Arbitration].

1973 SCMR 289 SUPREME-COURT

JUMMA KHAN VS MAHMUD KHAN

11 and Arbitration Act (X of 1940), S. 21-Res judicata-Arbitration award, during penlency of appeal, accepted by parties and incorporated into appellate decree-Award, not relating to exclusive land of any particular individual but relating to Shamilat land of entire village-Award, held, cannot be regarded as conclusive on question of nature of disputed property-Hence, cannot operate as res judicata.

1972 SCMR 608 SUPREME-COURT

MUHAMMAD IBRAHIM VS BEHRAM

Arbitration Act (X of 1940), S. 21-Reference to arbitration-Expression “all parties interested agree”-Agreement of all parties need not be in writing-Agreement can be inferred from conduct of parties-Arbitration agreement signed only by one out of several plaintiffs but none raising any objection and all appearing before arbitrator without raising objection –Held, Courts below were right in holding that all had agreed to arbitration and no objection on that score could be raised at appellate stage.

1971 PLD 570 KARACHI-HIGH-COURT-SINDH

Arbitration Act 1940 S. 21-Arbitration in suits-Expression “all the parties interested agree” in S. 21-All parties interested not joined in reference-Any award given by arbitrator, in circumstance, would be invalid-Mere fact that persons (parties to suit) were not contesting suit and proceeding against them was ex parte throughout-Does not render such parties not “interested” within meaning of S. 21-Arbitration or award given in absence of such parties and all subsequent proceedings-Held, void and without jurisdiction and final decree passed in terms of such award set aside-Case remanded for proceeding from stage at which reference to arbitration was made.

1968 PLD 629 LAHORE-HIGH-COURT-LAHORE

MST. UMAR BIBI AND OTHERS VS BASHIR AHMAD AND OTHERS

Arbitration Act 1940 Ss. 21 & 23-Reference of “matter in difference”-Court referring whole case to arbitrators appointed by parries-Contention that “matter in dispute” not specifically mentioned in order of reference itself and, therefore, reference bad-Held : not tenable.

1965 PLD 326 KARACHI-HIGH-COURT-SINDH

HAJI MUHAMMAD SULEMAN VS KADIR BUX

Ss. 14, 21 & 30-Party not interested in dispute-Mere non-joinder does not render reference or award invalid.

1964 PLD 54 KARACHI-HIGH-COURT-SINDH

HAJI MUHAMMAD SHARIF VS HAJI ATA MUHAMMAD

Arbitration Act 1940 S. 21-Words “all the parties interested”-Mere non-joinder of party regardless of fact whether party concerned was or was not interested in matter-Renders neither reference bad nor award void-Whether party interested or not-Question of fact to be decided in circumstances of each case.

1962 PLD 95 LAHORE-HIGH-COURT-LAHORE

MESSRS. S. M. QASIM & CO. VS MESSRS. SH. AZIMUDDIN

Arbitration Act 1940 Application under section 21-Must be in writing.

1956 PLD 596 LAHORE-HIGH-COURT-LAHORE

FATEH MUHAMMAD KHAN VS BHAG BHARI

Ss. 21, 30-Arbitrator giving decision on matter not in difference between parties and failing to decide matter referred-Award invalid. Where there was no difference between parties as to the extent of the estate which was available for distribution among heirs of a deceased person, but the arbitrator concerned himself with an inquiry into the question of the extent of the estate of the deceased which could be deemed to be heritable under the Muhammadan Law and thus to be available for division among heirs, and where, further, the arbitrator had failed to decide the point which was referred to arbitration: