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Civil Petition for Leave to Appeal No. 131‑R of 1982, decided on 23rd October, 1982.

(From the judgment dated 12‑5‑1982 of the Lahore High Court in Writ Petition No. 252 of 1982 dismissed in limine).

Arbitration Act (X of 1940)‑

‑‑‑ S. 21‑‑Reference to arbitration‑Counsel representing parties agree ing 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 matter to arbitration Requirements of law substantially satisfied‑As regards alleged relation ship of Arbitrator with one of parties and its effect, raising such question in constitutional petition, held, premature when matter yet to be referred to arbitrator and whole question open to examination in its proper perspective.

Syed Ahrnad Saeed Kirmani, Senior Advocate Supreme Court and K. E. Bhatti, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of

hearing : 23rd October, 1982,

‑The petitioners who are defendants in a pending civil suit, seek leave to appeal against the judgment of the Lahore High Court dated 12‑5‑1982 whereby a constitutional petition filed by them pertaining to orders passed in pending civil suit was dismissed in lirnine.

The respondents Nos. 1 to 3 filed a civil suit on 5‑11‑1979 seeking a permanent injunction restraining the petitioners from' interfering with their title and possession over land measuring 1 kanal and 13 marlas, khasra No. 71 situate in village Sada, district Gujrat. The petitioners contested the procee dings and while a petition for interim order was under consideration on 20‑1‑1981 by agreement of the counsel of the parties expressed in the order of the Court Sardar Khan son of Shah Muhammad was appointed as the Arbitrator to decide the controverted questions of title and possession. On 31‑1‑1981 an application was filed by the petitioners with a view to avoid reference to the Arbitrator and seeking recall of that order. It was rejected by the trial Court on 1‑12‑1981. The petitioners then filed a civil revision petition before the District Judge which too was dismissed. Hence they invoked the constitutional jurisdiction of the High Court for challenging that order. The grounds taken up were that there was no compliance with section 21 of the Arbitration Act inasmuch as there was no written application by the parties seeking arbitration through Court and an order referring the matter to arbitration could not be passed on the statement of the counsel of the parties and incorporated in the order of the Court without there being an application in writing as required by the law. The other ground taken up was that the sole arbitrator appointed was a close relative of the other party. The learned Judge in the High Court found that the lawful authority of the trial Court was not deficient or lacking in any respect in refusing to recall the order of reference to the Arbitrator.

The learned counsel for the petitioners has urged two grounds already taken up in the constitutional petition before the High Court. It is contended by him that the requirements of section 21 of the Arbitration Act were not fully satisfied and, in any case, the Arbitrator appointed is a close relative of the respondents and is on that account incapacitated from deciding the controverted questions of fact involved in the litigation.

We find that the counsel representing the parties had agreed to the reference of the dispute to arbitration. Their statement was recorded by the Court and given effect to. It has not been shown that the learned counsel representing the parties particularly the petitioners were in any way incompetent in the matter of making such a statement or referring the matter to arbitration. The requirements of law were substantially satisfied. As regards the alleged relationship of the Arbitrator with one of the parties and its effect, it is somewhat premature to raise such a question of fact a constitutional petition when the matter is yet to be referred to Arbitrator and the whole question is open to examination in its .proper perspective. Leave to appeal is therefore refused.

Petition dismissed.

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