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Civil Petition for Special Leave to Appeal No. K‑134/1973, decided on 16th September, 1974.
On appeal from the judgment and order of the High Court at Karachi, dated 24th April, 1973, in M. A. No. 123/1969.
‑‑ Art. 185 (3)‑Examination of points argued‑Need for‑Contract of construction work between parties providing for reference to arbitration disputes "arising out of or relating to the contract Certain deviations made entailing work outside agreed specification wherefore petitioner declining to pay extra payment‑Dispute referred to arbitration‑Petitioner's objection overruled and award made rule of Court‑Petitioner seeking leave to appeal on two points (i) disputed extra items not covered by schedule and could not be referred to arbitrator. (ii) assuming extra items covered by arbitration clause, , costs for extra items should have been on scheduled rates and not on special rates‑Held, points argued need examination, leave granted.
K. A. Ghani do Co., Advocate‑on‑Record for Petitioner.
Mohsin Siddiqui, Advocate Supreme Court instructed by Ali. Akbar, Advocate‑on‑Record for Respondent.
Date of hearing : 16th September, 1974.,
The petitioner and the respondent herein entered into an agreement in writing on 28th January, 1960 by which the latter undertook certain construction work in connection with the Fouji Sugar Mill at Tando Mohammad Khan at a total cost of Rs. 1,75,000. The contract provided for reference to arbitration in the event of an disputes between the parties "arising out of or relating to the contract". The construction work was to be carried out according to the specifications in schedule attached to the agreement. It appears however, that in the course of the execution of the contract, certain deviations were made which entailed work outside the agreed specifications for which the respondent claimed extra payment, but which the petitioner declined to pay under the arbitration clause, the dispute was initially referred to Mr. Riazul Haq as the sole arbitrator who on 12th September, 1966 gave an award for Rs. 4,300 in favour of the respondent herein. The award on being challenged by the respondent was set aside by a learned Single Judge on 18th January, 1968. A fresh reference was then made to another arbit rator, namely Vasif Hussain, who announced the award on 22nd July, 1969 for Rs. 1,33,000 in favour of the respondent. The petitioner filed objection against the award which were overruled by the court of Ist instance. appeal, the learned Single Judge upheld, order of the lower court and made the award a rule of the court. Certificate for appeal under the Letters Patent being refused, the petitioner now seeks leave to appeal.
Learned counsel for the petitioner urged the following two points i support of the petition
(1) That the extra items in respect of which the respondent had lodge his claim and for which the Arbitrator had awarded Rs. 1,33,000 not being covered by the schedule were not within the purview for the reference clause, the dispute with regard thereto, could no be referred to the arbitrator for decision.
(2) That assuming for the sake of arguments, that the extra items o work were covered by the terms of agreement then the respondent should have been awarded costs for the additional work on the scheduled rates and not on the special rates which were virtually twice the sates in the schedule.
The points argued by the learned counsel need examination. Accord ingly, we grant leave.
Leave granted.
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