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Miscellaneous Appeal No. 106 of 1972, decided on 10th April 1975.

S. 39 read with S. 14 and Civil Procedure Code (V of 1908), O. XVII, r. 3-Appeal, maintainability of-Trial Court not considering award at all but dismissing for want of evidence appellants' application praying for award to be made rule of Court-Contention that order dismissing appellants' application under S. 14, Arbitration Act, 19 s0 for want of evidence under O. XVII, r. 3, C. P. C. amounted to an order "setting aside" award, hence appealable under S. 39(l)(vi), held, not correct and appeal not competent.-[Appeal (civil)]

Government of East Pakistan v. Messrs A. Rab & Sons and another P L D 1967 Dacca 797 distinguished.

-- S. 14-Limitation, extension of-Pursuit of remedy in wrong Court Appellants' Advocate though mistaken in presenting appeal in a wrong Court yet mistake not due to his gross negligence inasmuch his specific attention not drawn to lack of pecuniary jurisdiction by office of Court at time of presentation of appeal nor respondent's Advocate mentioning in his application under O. VII, r. 11 reason why such Court had no jurisdiction-Time spent in prosecuting appeal in wrong Court, in circumstances, held, to be excluded.-[Limitation].

Said Muhammad v. Goma etc. P L D 1952 B J 8 and Mirza Habib Ullah v. Mahmuda Begum P L D 1952 B J 43 ref.

-- Ss. 14 & 33 read with Civil Procedure Code (V of 1908), O. XVII, r. 3 - Dismissal of application - Trial Court treating appellant's application praying for award to be made rule of Court as a plaint, following procedure applicable to ordinary suit, completely ignoring procedure presented under S. 33, respondent filing written statement instead of affidavit setting out grounds for setting aside award, and appellant's application for making award rule of Court dismissed for want of evidence-Held, procedure followed by Court irregular Burden of showing award to be bad and as such liable to be set aside Lay on, respondent challenging award and not on appellant praying for its being made rule of Court-Appellants' presence not at all neces sitated-Order of trial Court dismissing appellants' application for want of evidence, held, illegal.

-- S. 115-Appeal-Revision-Practice and procedure-Appeal prefer red in a case not appealable -High Court may, in proper case, treat memo of appeal as application for revision.-[Appeal (civil)-Revision (civil)-Practice and procedure].

-- Art. 181 and Civil Procedure Code (V of 1908), S. 115-High Court acting suo motu in exercise of its revisional powers-Limitation Act, 1908 would not stand in its way in such a case.-[Revision (civil) Limitation].

Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies P L D 1964 S C 97 rel.

Maroof Ali Khan for Appellants.

M. Ishaq Khan for Respondent.

Dates of hearing: 8th, 9th and 10th April 1975.

This appeal which purports to be an appeal under section 39 of the Arbitration Act, 1940, seeks to question the judgment and decree of the Civil Judge, First Class, Sukkur, dated 20-9-1969 in Arbitration Application No. 8/68 and arises in the following circumstances.

2. In or about the year 1967, Abdul Majid Khan Lodhi (since deceased), the father of the appellant No. 1 and the appellants Nos. 2 (ii) to (ix) and the husband of appellant No. 2 (1), entered into a financial transaction with the respondent, Mohammad Nawab, on certain terms and conditions. Disputes arose between them which they referred to the sole arbitration of one Mian Imtiaz Ahmed, who gave his award on 16-6-1967 awarding to the appellants a sum of Rs. 33,49.700 as advances made to the respondent and an additional sum of Rs. 10,000 as guaranteed profits. After the award was made, the respondent agreed to accept it on modified terms but this fact is irrelevant for consideration pf this appeal. The award was handed over to the appellants, who made an application to the Civil Judge, First Class, Sukkur, under section 14 of the Arbitration Act, 1940 (hereinafter referred to as the Arbitration Act) to which a photocopy of the award was annexed, praying that the award be made rule of the Court and a decree be passed in terms thereof.

3. The Court issued notice of the application to the respondent, but in the form of a summons in suit. The respondent appeared and filed objections against the application, in the form of a verified written statement, praying that the award be set aside. It appears that the trial Court followed the procedure of an ordinary suit and ordered discovery of documents by the appellants as well as their inspection. Thereafter, the Court framed issues and set the case down for hearing on 14-5-1969. The respondent at first, and later the appellants, applied to summon the arbitrator to give evidence. The case was adjourned to 23-6-1969. On this date, the appellants did not appear and their Advocate moved a hand-written application for adjournment of the hearing on the ground that the arbitrator was not available to give evidence as he had not returned from Karachi. The learned trial Court rejected the application for adjournment observing that the appellants had failed to produce their evidence at the last two hearings as well. He closed the side of the appellants and dismissed their application filed under section 14 of the Arbitration Act. The relevant part of the impugned order reads as follows:

"The matter was being adjourned for evidence. The applicants (appellants) did not produce any evidence on 23-6-1969. Their side was closed. Their application is dismissed for want of evidence under Order XVII, rule 3."

4. Being aggrieved by the judgment and decree (which was signed on 20-9-1969) the appellants preferred an appeal to the District Judge, Sukkur, under section 96, C. P. C. The respondent moved an application on 15-10-1970 under Order VII, rule 11, C. P. C. for rejection of the appeal on the ground of insufficient court-fee and lack of pecuniary jurisdiction, which was contested by the appellants. Some two years later on 16-9-1972, the Additional District Judge, passed an order observing that as the appellants had put a valuation for purposes of jurisdiction at Rs. 31,000 in paragraph 11 of the "plaint" (sic); (application in the lower Court), that Court had no pecuniary jurisdiction in view of section 18(1) (a) of the West Pakistan Civil Courts Ordinance, 1962 which provides that an appeal from a decree or order of a Civil Judge shall lie to the High Court if the value of the original suit in which the decree or order was made, exceeds Rs.25,000. Accordingly, he ordered the memo. of appeal to be returned to the appellants for filing the same in the High Court. The appellants represented the appeal in the High Court on 25-9-1972 but before presenting it, it was amended to read as an appeal under section 39 of the Arbitration Act and the words "96, C. P. C. ' were deleted from the heading of the appeal.

5. The first question which arises for consideration is whether, the present appeal under section 39 of the Arbitration Act is competent. Mr. Maroof Ali Khan, learned counsel for the appellants, submitted that the impugned order of the trial Court dismissing the appellants' application under section 14 of the Arbitration Act for want of evidence under Order XVII, rule 3, C. P. C., amounts to an order "setting aside" an award, and, as such, an appeal is competent under section 39(1)(vi) of the Arbitration Act. In support of this submission, he referred to Government of East Pakistan v. Messrs A. Rab & Sons and another (P L D 1967 Dacca 797) in which it was held that where an award is remitted for reconsideration by the arbitrator under section 16 of the Arbitration Act, the order amounts to "setting aside" the award and an appeal is competent under section 39 (1) (vi) of the said Act. But that case is distinguishable for the reason that the trial Court in that case had set aside the award in part in respect of four items of the award and had remitted it to the arbitrator for a fresh award on those four items. On the other hand, the trial Court in the instant case did not consider the award at all, but merely dismissed the appellants' application for want oft. evidence under Order XVII, rule 3, C. P. C. Therefore, there is no force in the submission of the appellants' counsel. The present appeal under section 39 of the Arbitration Act is not competent.

6. Mr. Sadiq Khan, learned counsel for the respondent, submitted that there is another ground why this appeal is not maintainable, namely, that the appeal is barred by time as it has been presented to this Court long after the limitation period had expired. He cited Said Muhammad v. Goma etc. (P L D 1952 B J 8) and Mirza Habibullah v. Mahmooda Begum (P L D 1952 B J 43) for the preposition that filing of an appeal in a wrong Court through gross negligence of counsel, is not a sufficient cause for presenting the appeal to the proper Court after the expiry of the period of limitation. On the other hand, Mr. Maroof Ali Khan, relied on the principle underlying section 14 of the Limitation Act, that time spent in prosecuting the appeal before the District Court with due diligence should be excluded. No doubt, the Advocate for the appellants who had presented the appeal to the District Court, had made a mistake but I am not satisfied that it was due to gross negligence of counsel. His specific attention was not drawn to the lack of pecuniary jurisdiction either by the office of the District Court at the time he presented then appeal nor bad the advocate for the respondent mentioned in his application under Order VII, rule 11 the reason why the District Court had no jurisdiction. In fact, his application was not under rule 10, which rule is the more appropriate and his prayer was that "the Court may direct the appellants to affix proper court-fee and in case of their failure, the appeal may kindly by rejected." I find on examining of the original application signed by the respondent's Advocate, that in paragraph 2 the words "and pecuniary jurisdiction" were added in a different type. It appears to have been inserted as an afterthought, therefore, I am inclined to accept the submission of Mr. Maroof Ali Khan that in the circumstances, the time spent in prosecuting the appeal in the District Court is to be excluded.

7. On the merits, the main question is whether the order dismissing the appellants' application under section 14 of the Arbitration Act for want of evidence under Order XVII, rule 3, C. P. C. can be sustained in law. The trial Court treated the application under section 14 of the Act as a plaint in suit and, as several instances will show, he followed the procedure applicable to an ordinary suit. The respondent was directed by the summons to file a written statement, if any; disclosure of documents on oath by the appellants at the instance of the respondent and also inspection, were ordered by the Court and issues were also framed.

The trial Court completely ignored the procedure prescribed under section 33 )of the Arbitration Act, which states that any party who desires to challenge the existence or validity of an arbitration agreement or an award shall apply to the Court and the Court shall decide the question on affidavits. In the instant case, the respondent filed a written statement instead of affidavit setting out the grounds for setting B aside the award. Apart from this irregularity, it is clear that the burden of showing that the award was bad and should be set aside, lay entirely on the respondent. Therefore, on 23rd June 1969 the trial Court should have called upon the respondent to satisfy him as to why the award should be set aside. The presence of the appellants was not necessary, they not having to lead any evidence to support P the award which was in their favour. Therefore, in dismissing the application for want of evidence on 23-6-1969 the trial Court acted illegally in the exercise of its jurisdiction.

8. Although the appeal is not competent, there is a long line of cases, which have consistently held that, where an appeal is preferred in a case in which no appeal lies, the High Court may, in a proper case, treat the memo. of appeal as an application for revision under section 115, C. P. C. and deal with it on that footing. A Court may suo motu call for any record in this connection, if it appears desirable to do so. Now Article 162-A of the Limitation Act bars a revision under section 115, C. P. C., if it is filed by a party beyond 90 days from the date of the decision sought to be revised. But, as observed by their Lordships of the Supreme Court in Muhammad Swaleh and another v, Messrs United Grain 8t Fodder Agencies (P L D 1964 S C 97), the Limitation Act H "will not stand in the way of the suo motu exercise of revisional power by the High Court if it appears desirable to do so."

9. Accordingly, I would set aside the judgment and decree of the trial Court dated 23-6-69 and remand the case for hearing of the objections of the respondent by following the procedure prescribed under the Arbitration Act. There will be no order as to costs.

S. A. H. Case remanded.

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