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Civil Petition No 89 of 1983, decided on 25th August, 1985.
‑‑‑S. 4‑‑Provisional Constitution Order (1 of 1981), Art. 9‑‑Evidence Act (I of 1872) , S. 115‑‑Matter in dispute, at request of parties, referred to Tribunal and on their request Tribunal diverting from normal procedure provided under Ordinance‑‑Any adverse order passed as such, held, could not be challenged by a party on ground that Tribunal had dev a ed from normal procedure provided under Ordinance‑‑Parties own conduct and acquiscence, held, would operate as estoppel.
Abdul Wahab and others v. Habib Ali and others P L D 1969 Lah. 365 rel.
‑‑‑S. 4‑‑Provisional Constitution Order (1 of 1981), Art. 9 Arbitration Act (X of 1940), S. 13‑‑An arbitrator, held although was a sole judge in respect of a dispute referred to him for Arbitration yet that could not give him a blank cheque to decide matter arbitrarily or capriciously Decision of arbitrator should be judicious one based on some material Incumbent upon arbitration to afford opportunity of hearing to parties in dispute.
‑‑‑S. 4‑‑Provisional Constitution Order (1 of 1981), Art. 9‑‑Arbitration Act (X of 1940), S. 13‑‑Arbitration‑‑No evidence led before arbitrator and nothing on record showing that he had even called or heard petitioners before passing award against them‑‑Grave injustice, held was done to petitioners‑‑Order passed as such set aside and case remanded for a fresh adjudication.
‑‑‑S. 4‑‑Provisional Constitution Order (1 of 1981), Art. 9‑‑Arbitration Act (X of 1940), S 13‑‑Consent of parties to refer a matter to an arbitrator for decision does not confer an abolute power upon arbitrator to make Award at his own whim and conjecture even without hearing parties‑‑Award passed at back of parties, held, would be in flagrant violation of principles of natural justice.
‑‑Art.9 ‑Civil Law (Special Provisions) Ordinance (I of 1968), S.4‑ Constitutional jurisdiction‑‑Contention urged in petition being based on mixed question of facts and law same, held‑, could not be resolved in constitutional jurisdiction by High Court‑‑Case having been remanded to Tribunal, parties allowed to raise contention before Tribunal.
‑‑‑Art. 9‑‑Civil Law (Special Provisions) Ordinance (I of 1968), S.4‑ Arbitration Act (X of 1940), S. 30‑‑Award‑‑Arbitrator by not hearing parties violating principles of natural justice‑‑Award set aside‑‑All orders passed in consequence thereto also set aside.
K . N . Kohli for Petitioners.
Shakeel Ahmed for Respondents.
Date of hearing: 19th August, 1985.
.‑‑This constitutional petition is directed against the judgment, dated 17‑5‑1978, passed by respondent No.3 the Assistant Commissioner, Pishin (Deputy Commissioner) under the Civil Law (Special Provisions) Ordinance (I of 1968) hereinafter referred as the Ordinance), the order, dated 6‑8‑1981 passed by the respondent No.4 the Additional Commissioner, Quetta in an appeal and the order, dated 20‑3‑1980 passed by the respondent No.5, the Member, Board of Revenue,, Baluchistan in revision.
2. The facts giving rise to this petition are that on 9‑7‑1944, the petitioners father late Haji Murad purchased a piece of land for consideration of Rs.1,000 from the respondents Nos. 1 and 2 Due to close relationship. between the vendors and the vendees the mutation in the Revenue Record could not be effected. But later on the respondents No.l and 2 disputed the sale and instituted a suit against late Muhammad Murad before the Assistant Commissioner, Pishin. On 7‑6‑1974 it ended in compromise between the parties. In result whereof their suit was dismissed in the words as follows:‑
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3. Being not satisfied with the dismissal of the suit hence they again on 16‑1‑1976 filed a second suit before the Assistant Commissioner, Pishin for redemption of the land against Murad Khan who contested the suit and filed his written statement on 4‑2‑1976. The Assistant Commissioner, Pishin under section 4 of the Ordinance referred the dispute to a Tribunal who at the request of the both parties referred the matter to Haji Muhammad Aslam Sharey (Sole Arbitrator) for decision under Sharia. The Arbitrator decided the case in favour of the respondents Nos. 1 and 2 and gave his award as under:‑
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Late Haji Murad disputed the award before the Assistant Commissioner and filed his objection on 12‑5‑1978, inter alia stating that he was neither called nor heard by the Arbitrator hence, entreated for a fresh decision through the same Arbitrator. It appears that the Assistant Commissioner did not give much weight to his objections and on unanimous recommendation of the Tribunal, confirmed the award of Arbitrator and dismissed his suit. Late Hap Murad challenged the order in appeal before the Additional Commissioner Quetta who on 6 ‑8‑1981 dismissed it. In the meantime Haji Murad expired; his legal heirs including the petitioners stepped in his shoes and challenged the both orders in revision petition before the Member, Board of Revenue, Baluchistan who also dismissed the same and maintained the award of the sole Arbitrator as under:‑
"The 'Sharah' was appointed with the consent of both the parties and they were to abide by his findings /opinion. The petitioners cannot now come up with legal objections of jurisdiction, applicability or otherwise of the Ordinance No.1 of 1968 and so on when they had not raised these objections before the lower Court but on the other hand the petitioners consented to the appointment of the 'Sharah'. Hence 1 see no reason to interfere with the impugned order of the Commissioner, Quetta Division and the Revision Petition is dismissed accordingly "
5. The petitioners have impugned the above‑said three orders in this Constitutional Petition before this Court.
6. Mr. K.N. Kohli Advocate appeared for the petitioners whereas Mr. Shakeel Ahmad Advocate represented the respondents 1 and 2. The respondents 3 to 5 did not contest the petition.
7. In support of his petition Mr. K.N. Kohli raised the following grounds:‑
(i) The Tribunal ought to have proceeded with the case under the provisions of the Ordinance as it could not have referred it to arbitration.
(ii) The arbitrator ought to have been examined by the Tribunal.
(iii) The arbitrator neither called the petitioners nor heard them thus violated the principles of natural justice.
(iv) The prima facie on merits the petitioners had good case but no opportunity was given to them to prove their case.
8. On the other hand Mr. Shakeel Ahmad the learned counsel for the respondents Nos. 1 and 2 contended:
(i) That the petitioners by their conduct and acquiescence under doctrine of estoppel were barred to challenge the decision of the Arbitrator and subsequent order based thereon
(ii) That the petitioners themselves had chosen to adopt the procedure before the Tribunal hence they cannot challenge it.
(iii) That the petitioners were heard before the Shara and the respondents 3 to 5.
(iv) That the claim of the petitioners was time‑barred.
(v) That once the suit having been dismissed on principle of res judicata second suit on the same cause of action was incompetent.
9. It is an undisputed fact that at the request of the both parties the matter had been referred to the arbitrator by the Tribunal. Evidently on their request the Tribunal diverted from the normal procedure provided under the Ordinance, hence when they found an adverse Order it cannot lie in their mouth to challenge the validity of the Order and urge that the Tribunal had deviated from the normal procedure and the scheme provided under the Ordinance. In our view their own conduct and acquiescence would operate as estoppel on the principles as laid down in case Abdul Wahab and others v. Habib Ali and others P L D 1969 Lah. 365, wherein it has been held as under:‑
"Apart from the technical bar in respect of appeal against decision based on consent, the party challenging such a decision cannot be allowed to argue that the Court passing the order did not follow the correct procedure in deciding the matter. The principle of estoppel by conduct applies with full force to such a situation. if a party, by its conduct, obliges the Court to adopt a course which is contrary to its practice, that party will be debarred from raising the objection as to the procedure, on the' very salutary principle that after having the Court to do a certain thing for the benefit of the parties, none of them can be allowed to challenge the same. The Madras High Court, in a pre‑Partition case, namely, S. E.Makhudam Muhammad v. T. V. Muhammad Sheikh Abdul Kadir and another, has dealt with this question. In that case the defendant had requested the Court to decree the suit in favour of the plaintiff if a certain thing happened, namely, if the key that was produced by him did not fit the lock. The Court did what it was asked to do by the defendant and it was found that the key did not fit the lock. The question arose whether the defendant could resile from what he had stated before in the Court. The following observation made in this connection is very relevant in this appeal:
'When a party invites the Court to adopt a procedure which is not contemplated by the Civil Procedure Code and is in fact a procedure extra cursum curiae he cannot turn round and say that the Court is to blame for adopting the very procedure which he invited the Court to follow. There is such a thing as esotppel apart from the question of adjustment and the doctrine of estoppel would apply to a party who attempts to blow hot and cold in this fashion. As was held in 1896 A C 136 where with the acquiscence of the parties the Judge departed from the ordinary course of procedure and decided upon a question of fact, it was incompetent for the parties afterwards to contend that they have an alternative mode of proceeding with the trial as if it had been heard in due course. Lord Wasson observed in that case that there were several decisions of the House of Lords which affirmed'.‑‑
That the judgment of the Court below pronounced extra cursum curiae, is in the nature of an arbitrator's award and that as a general rule at least no appeal from it will lie."
10. It may be further observed that by now it has become settled law that an arbitrator is sole judge in respect of a dispute referred to him for arbitration but that does not give him a blank cheque to decide the matter arbitrarily or capriciously. His decision should be judicious one and based on some material. Nevertheless it is also incumbent upon him to afford opportunity of hearing to the parties in dispute. In the instant case admittedly no evidence was led before him besides there is nothing on record to suggest that the arbitrator had even called or heard the parties before passing the Award. In our view mere consent of the parties to refer a matter to an Arbitrator for decision does not confer an absolute power upon an arbitrator to make the Award at his own whim and conjecture even without hearing the parties. We are inclined to observe that Award passed at the back of the parties is flagrant violation of the principles of natural justice. In the instant case the petitioners at very outset had complained that they were neither called nor heard by the Arbitrator and the Award was passed at their back hence had requested for reference of the dispute to the same arbitrator for fresh Award. There is force in their contention. The Assistant Commissioner and other functionaries working under the Ordinance ought to have disposed of their such grievance at the outset but having failed to do so manifestly a grave injustice has been done to the petitioners. In our view such unjust order cannot be allowed to remain in field and it deserves to be set aside and the case needs to be remanded for a fresh adjudication.
11. Adverting to the remaining‑contentions of the learned counsels for the parties it may be observed that these are the grounds based on the mixed question of facts and law which could not be resolved in Constitutional Petition before this Court. As we are inclined to remand the matter to the Tribunal for decision afresh according to law the parties can raise such pleas before the Tribunal. No further elucidation on these grounds is called for now.
12. As we have already observed that the Arbitrator had violated the principles of natural justice hence his Award cannot be allowed to remain in field which as such is set aside. In consequent thereto all other orders passed on it are also set aside. In result whereof the matter is remanded, to the Tribunal to proceed with the matter afresh after giving the parties opportunity of hearing. The petition is disposed of with no order as to costs.
M.Y.H. Petition accepted
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