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Civil Revision No. 1538 of 1982, decided on 7th November, 1982.

‑‑ S. 8‑Arbitrator, appointment of‑Parties for a long time not agreeing to appointment of any person as arbitrator‑Both parties apparently aggreeing to appointment of a retired Judge of superior Court to prevent abuse of process of law caused by inordinate delay in disposal of arbitration application‑Such agreement as to appoint ment of a sole arbitrator in effect amends provisions of relevant cause of agreement by mutual consent hence no exception could be taken to such appointment‑Impugned order having been passed with consent of parties and even such order if supposed to be illegal such order not open to scrutiny in exercise of discretionary jurisdiction of High Court meant to foster justice‑‑No allegation of mala fides having been raised against court pressing impugned order and no reason to believe why such court should incorrectly or falsely observe order having been passed with consent of parties‑Presumption of regularity also attacking to judicial acts, until such presumption rebutted action, held, cannot be challenged‑Question whether impugned order passed with consent or without consent‑A disputed question of fact‑Such questions, held, further, cannot be gone into in exercise of revisional jurisdiction Evidence Act (I of 1872), S. 114‑Civil Procedure Code (V of 1908), S. 115.

Khalil Ramday, Asstt A.‑G. for Petitioners.

This civil revision arises out of the order dated 2‑10‑1982 of the learned Senior Civil Judge, Gujranwala, whereby Mr. Zaki‑ud‑Din Pal, ex‑Judge of this Court was appointed as sole Arbitrator to resolve the dispute, on a retainership of Rs. 10,000 to be paid by Faqir Sain respondent.

2. It is contended by the learned Assistant Advocate‑General that the impugned order of the learned Senior Civil Judge is wholly without jurisdic tion, in that, in terms of clause 25 (a) of agreement No. 9/1975‑67, executed between the parties, in the event of any disagreement arising out of the contract, the matter shall be referred to the Superintending Engineer for decision who shall after making such enquiries as he may deem fit give his decision in writing not later than three months after the reference is made to him. This period for decision of the case by the Superintending Engineer may however, be extended by the Chief Engineer under special conditions according to the circumstances/justifications available in each case. The aforesaid clause, however, stipulates that if the Contractor is dissatisfied with the decision of the Superintending Engineer or if his decision is not forth coming within the stipulated or extended period/periods and desires Arbitra tion under the arbitration clause as hereinafter provided he shall give a notice in writing of such intention within a period of 28 days of the receipt of the Superintending Engineer's decision, or in case no decision is given, at the end of the period/periods within which the Superintending Engineer was to give his decision. It is further submitted that sub‑clause (c) of clause 25 stipulates that in case the amount of claim preferred is over Rs. 1 lakh the dispute shall be referred to two arbitrators to be appointed from the Superintending Engineers of the Department other than the Superintend ing Engineer incharge of the work, one to be nominated by the Chief Engineer/Deputy Chief Engineer of the Region concerned, and the other by the contractor.

3. There can be no dispute with the proposition of law advanced by the learned Assistant Advocate‑General that in case of any disagreement arising out of the contract between the parties, the agreement referred to above provides the method and persons to be appointed as arbitrators. The agreement is a complete Code by itself and, therefore, these conditions cannot be unilaterally changed at the whim of one of the parties.

4. Be that as it may, a reference to the impugned order shows that the Government did not agree to the appointment of Sh. Ghulam Ahmad the nominee of the petitioner as arbitrator who was the Superintending Engineer in place of Mr. Nisar Ahmad Khan another Superintending Engineer. A finding of fact has also been recorded in the impugned order that the petition for arbitration was instituted on 9‑2‑1978. The matter was referred to various arbitrators at the instance of the parties and the period for arbitration was extended from time to time and various Engineers were appointed as arbitrators but no award was given and eventually Nisar Ahmad Khan who is in the penal of arbitrators being one of the Superintending Engineers expressed his inability to give the award on account of his transfer from Lahore to some other place and his heavy official duties. This aspect of the matter is not denied by the learned Assistant Advocate‑General, as well as, Mahmood Mukhtar, the Executive Engineer Highways, Gujranwala, who has brought the record of this case in the Court. Thus visualized, the respondent Faqir Sain proposed the name of Sh. Ghulam Ahmad another Superintending Engineer, to which the petitioner did not agree. This question of fact is also not disputed by the learned Assistant Advocate‑General. It is in these circumstances and on account of inordinate delay in the disposal of the arbitration application which has the effect of abuse of the process of law that both the parties apparently agreed to the appointment of Mr. Justice (retired) Zaki‑ud‑Din Pal, to act as the sole arbitrator to resolve the dispute. This has the effect of amending the provisions of clause 25 (a) of the agreement by mutual consent and therefore, no exception can be taken to the appointment of Mr. Justice (retired) Zakiuddin Pal. In any event, the impugned order was passed with the consent of the parties and even ii the same is assumed to be illegal, it is not open to scrutiny in the exercise of my discretionary jurisdiction which is meant to foster justice. The petitioner cannot be permitted to take advantage of its own wrong. I am conscious of the fact that the revision petition is accompanied by the affidavit of Mr. Muhammad Mushtaq Chauhan, Government Pleader, who stated that he gave no such consent. I am however, not satisfied with the contents of the affidavit, in that, no allegation of mala fide has been levelled either expressly or impliedly against the Senior Civil Judge, who passed the impugned order. I have, therefore, no reason to believe as to why the learned Senior Civil Judge should incorrectly or falsely observe that the order was passed with the consent of the parties. Furthermore, in terms of illustration (e) of section 114 of the Evidence Act, regularity of presumption attaches to a judicial act and until that presumption is rebutted action cannot be challenged, in that, presumption arising under section 114 of the Evidence Act are not presumptions of law but of fact. This being so, the question whether the order, in question, was passed with consent or without consent is a disputed question of fact which cannot be gone into in the exercise of revisional jurisdiction, particularly, when it is not even alleged that the learned Senior Civil Judge, passed the impugned order mala fide or for extraneous consideration.

For the reasons stated above, the revision petition fails and is hereby dismissed in limine.

S.A.H. Petition dismissed.

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