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Civil Revision No. 25 and Miscellaneous Civil Applicationl No. 6 of 1977, decided on 30th April, 1986.

(a) Arbitration Act (X of 1940)‑

‑‑ Ss. 17 & 39 (I) (vi)‑Award‑Appeal against decree pronounced on basis of award is completely barred under S. 17.

(b) Arbitration Act( X of 1940)‑

‑‑ Ss. 17, 39 & 41‑Award‑Setting aside of‑Despite existence of casual connection between order rejecting application to set aside award and pronouncement of judgment upon which decree had to follow, these are two independent actions of Court designed to have different consequences and remedies to challenge said actions are not same.

Soudamini Ghose v. Gopal Chandra Ghose (1915) 28 I C 557 ; Khetternath Ganguly and another v. Ushabala Dasi (1915) 22 1 C 391 and Zafar Hussain

Rizvi v. Muhammad Hanif 1980 C 1, C 2177 rel.

(c) Arbitration Act (X of 1940)‑

‑‑ Ss. 17 & 39 (1) (vi)‑Court Fees Act (VII of 1870), Sched. II, Art. 11‑Award‑Appeal ‑ Court‑fee‑Appeal challenging only order of rejection of application to set aide‑ award, held, was appealable under S. 39 (1) (vi) of Arbitration Act and for such appeal Court‑fee would be regulated by Art. 11, ‑Sched. II of Court Fees Act, 1870

(d) Arbitration Act (X of 1940)

‑‑ S. 17‑Civil Procedure Code (V of 1908), S. 115‑Revision is competent against decree passed on basis of award when appeal is not maintainable--Decree passed on basis of award Appeal therefore, not maintainable, yet on pointation of apparent illegality, impropriety, material irregularity, miss exercise of jurisdiction, lack of jurisdiction, or violation of law or established procedure, decree could be challenged by way of revision petition within purview of S. 115, Civil Procedure Code‑Both appeal and revision, held, were maintainable to the extent of their respective sphere and scope as prescribed by law.

Amod Kumar Verma v. Hari Prasad Burman and others A I R 1958 All. 720 ; Gunend alal Das Chuwdhury and others v. Mitandralal Das Chowdhury 1969 D L C 49 ; Bala wal Khan v: Cap,. Muhammad Alain Khan and others P L D 1956 Lah. 494 ; Syerl Hussain Shah v. Haji Ghulam Hassan Khan P L D 1953 Pesh. 59 ; Noor Muhammad Shari( v. Mnza Muhammad

Ashraf and others 1980 C L C 1984 ; Harbhan Dat and another vSaran and another A I R 1933 Oudh 547 ; Debir‑ul‑Din v. Amina Bibi and others A I R 1925 Cal. 475 ; Delhi Cloth and General Mills Co. Ltd. v. Firm Kidari Pershad‑Chhedi Lai of Ferozpore Cantonment A I R 1921 Lab. 396 rel.

Malik Ghulam Hassan v. Government of Baluchistan P L D 1982 Quetta 52 ref.

(e) Arbitration Act (X of 1940)‑

‑‑ Ss. 17 & 39 ‑Court Fees Act (VII of 1870), Scbed. lI, Arts. 11 & 13 (A), Sched. I‑Arbitration‑Award‑Appeal and Revision Deficiency of Court‑fee‑Whenever decree is challenged directly or indirectly by way of appeal or revision, court‑fee, held, was required to be paid on ad valorum basis.

Soudamini Ghose v. Gapal Chandra Ghose Indian Cases (1915) 28 I C 557 ; Khetternath Ganguly and another v. Uehabala Dasi (1915) 22 1 C 391 ; Province of Baluchistan v. Gul Has an P L D 1982 Quetta 52 and Zafar Hussain Rizvl v. Muh,mmad Hanif 1980 C L C 2177 rel.

(f) Interpretation of statutes‑

‑‑ Casus o.nissus‑While interpreting provisions of law, omission cannot be supplied‑By comparing effect of various provisions real intent of legislature, he d, could always be ascertained.

(g) Court Fees Act (v Al of 1870)‑‑

‑- S. 2A‑Civil Procedure Code (V of 1908), S. 149 and O VII, R. 11 c)‑Limitation Act (IX of 1908), S. 3‑Court‑fee‑Bar of limitation to make up deficiency‑Wriea considering options for exercise of discretion for grant of time for supply of deficiency in Court‑fee, considerations relevant to bar of limitation, he/d, should not be taken into account ‑Deficiency neither mala fide nor intentional or contumacious‑Time was allowed to make up deficiency in Court‑fee.

Siddique Khan and 2 others v. Abdul Shakur Khan and another P 1. D 1984 S C 289 ; Hashmat Ali v. Muhammad Sharif and others 1986 S C M R 405 and Gulzar Hussain v. Abdur Rehman 1985 S C M R 301 rel.

(h) Arbitration Act (X of 1940)‑

Ss. 8 & 20 ‑‑Effect‑Arbitration‑Award‑Objection petition‑ Institution of application under Ss. 8 & 20 of Act simultaneously‑ Not competent.

Although ultimate effect of provisions of sections 8 and 20 was the same yet they differed in material particulars as regards procedure for achieving object. Law provided an option to aggrieved party to apply under Chapter II or instead thereof to seek remedy under section 20, in which case however 110 notice provided for under section 8 would be needed. When application under section 20 can be filed only instead of taking steps under Chapter II as specifically prescribed in section 20(I) of Act, contention th‑at application under sections 8 and 20 could simultaneously be instituted, was not well founded.

(I) Arbitration Act (X of 1940)‑‑‑

‑‑ Ss. 16, 30 & 33‑Limitation Act (IX of 1940), S. 5‑Award Objection petition ‑ Limitation ‑ Respondent while challenging propriety and validity of objection petition emphasizing that unless, objections to award were filed within prescribed period of limitation trial Court could not consider same‑Question of limitation for filing objection to award no doubt of fundamental importance and question pertaining to misconduct of arbitrator or fact of award having been improperly procured could be raised only within period of limitation specified by law but section 5, Limitation Act, having no application for condoning period, of delay in filing objection to award, it would always be obligatory for Court to satisfy itself whether an application seeking to set aside award bad been filed within time available under law or not‑Before proceeding to pronounce judgment, trial Court was bound to fully satisfy itself whether at all there existed any cause to remit award ‑It was a mandatory requirement to ascertain if any illegality was apparent on face of record which thus might affect its validity or render it coram non judice or whether any substantially unjust or ‑ materially irregular action constituting glaring venation of law existed which might frustrate very basis of award‑Trial Court, held, enjoyed plenary powers to examine validity of award, taking into consideration requirements of S. 16 and thereby to determine whether or not there existed any cause to remit‑Such power was irk addition to and not in derogation of authority vested in Court for disposing of objection filed within purview of S: 30 or 33 of Arbitration Act.

(j) Arbitration Act (X of 1940)‑

S. 17‑Phrase "where the Court sees no cause to remit the award" appearing in section 17 to be given meaning to and same was required to be independently interpreted ‑‑‑If any jurisdictional defect, lack of authority, excess of power, material irregularity which. was apparent on face of award had been pointed out, in that event trial Court could not close its eyes to such inherent jurisdictional defects or patent illegality or glaring violation of law‑Trial Court was therefore obliged to ensure whether or not any cause to remit award in accordance with section 16 existed. If Court was legitimately satisfied that there was no cause to remit or nothing apparently vitiated 'Award' only then judgment would be pronounced to which decree might follow.

(k) Arbitration Act (X of 1940)‑

Ss. 16, 17, 30 & 32‑Limitation Act (IX of 1940), S. 3‑Award Question of limitation for filing objection petition‑Trial Court only mechanically dealing with question of limitation and deciding issue of limitation without affording opportunity of leading evidence to petitioner‑Question of limitation being a mixed question of law and fact, trial Court, held, acted erroneously and illegally‑Decree passed consequently was rendered defective on that score.

Balwal Khan v. Capt. Muhammad Alam Khan and others P L D 1956 Lah. 494 ; Messrs Naseem Bhai & Co. v. Messrs Pak. Jute Balers Ltd. P L D 1985 Dacca 258 ; Deo Narain Singh and others v. Siabar aingh and others A I R 1952 Pat. 461 and Vessrs Badri Narayan Agarwala v. Messrs Pak Jute Balers Ltd. P L D 1970.S C 43 rel.

(L) Civil Procedure Code (V of 1908y‑

‑‑ O. VIII, R. 5‑Allegations not specially denied‑To be deemed to be admitted.

(m) Arbitration Act (X of 1940)‑

‑‑ Ss. 8 & 20‑Civil Procedure Code (V of 1908), O. VIII, R. 5- Arbitration‑Petitioner vehemently contending that 'Contract' agreement executed between parties did not contain any arbitration clause‑ Such a factual position not specifically controverted by respondent Natural inference, held, would be that there was no arbitration clause in the contract‑Consequently it could not be conceived that any application under Ss. 8 & 20 of Arbitration Act could at all be filed in any Court‑Copy of contract agreement attached with Memo of petition also prima facie indicating that it did not provide arbitra tion clause‑If any proceedings were initiated under Arbitration Act, same would be without jurisdiction and as such coram non judice in circumstances‑All steps taken in matter including reference to arbitration and judgment and decree by Court suffered from inherent lack of jurisdiction and as such without legal effect and all structure raised thereon automatically fell to ground along with it.

Yousuf Ali v. Muhammad Aslam Zia and others P L D 1958 S C 104 ; Syed Ali Abbas and others v. Vishan Singh and others P L D 1967 S C 294 ; Rashid Ahmed v. The State P L D 1972 S C 271 ; Nawab Syed Raunaq All v. Chief Settlement Commissiooer and others P L D 1973 S C 236 ; Sind Employees Social Security Institution v. Dr. Alumtaz Ali Taj and others P L D 1975 S C 450 ; Khuda Bakhsh v. Khushi Muhammad and others P L D 1976 S C 208 ; S. Mushtaq Hussain Shah v. Riaz M. Muhammad Hazarvl and another P L D 1978 Kar. 6 2 ; Mistri Abdul Ghafoor v. Mst. Meraj Begum P L D 1980 Lab. 414 and The Board of Control for Cricket in Pakistan v. Messrs Sind Cricket Association, Hyderabad 1980 C L C 683 rel.

(n) Arbitration Act (X of 1910)‑

‑‑ Ss. 8 & 20‑Arbitration‑Proceedings to settle differences by way of arbitration are outcome of an arrangement mutually arrived at by parties and in given circumstances parties voluntarily accepted decision of such arbitrator to be binding on them whether they agree with his findings or not ‑ Disputes which normally fell within exclusive domain of civil Courts, are obviously withdrawn by virtue of such arrangement from their ambit for determination and settlement by domestic Tribunal‑Invoking of jurisdiction of Court for appoint ment of arbitrator or reference of dispute whether under S. 8 or 20 presupposes existence of written arbitration clause in contract agreement.

(o) Arbitration Act (X of 1940)‑

Ss. 8 & 20‑Civil Procedure Code (V of 1908). S. 16‑Arbitra tion‑Territorial jurisdiction‑Contract between parties executed at place 'P' and contract carried out there‑Court at place 'Q' having no territorial jurisdiction to adjudicate upon matter proceedings instituted in Court at place 'Q', held, were not valid and were without lawful authority.

The Board of Control for Cricket in Pakistan v. Messrs Sind Cricket Association, Hyderabad 1980 C L C 683 ; Colony Thal Textile Mills Ltd. v. Messrs Zahid and Brothers 1982 C L C 1409 and Agha Mahboob Shah v. Baluchistan through Secretary Government and others P L D 1982 Quetta 84 rel.

(p) Arbitration Act (X of 1940)‑‑

‑‑ Ss. 8 & 20‑Arbitration award‑Objection petition‑Trial Court while dealing with objection petition against award not adhering to requirements of law either under S. 8 or S. 20, Arbitration Act‑Irrespective of fact whether application filed was to be treated under S. 8 or S. 20, copy of agreement was not filed by respon dent or its production from petitioner not sought within purview of S. 20 ‑ Proceedings before trial Court and" arbitrator were recorded without taking into consideration contract agreement to find out extent to which dispute was referable to arbitrator and without examining whether or not any arbitration clause at all existed‑Such blind action, held, was contrary to spirit of law and justice, therefore, could not conveniently be ratified merely on technicalities Proceedings drawn up in matter constituted material irregularity and coram non judice ; question of limitation for filing objection petition not correctly dealt with relevant law and attending circumstances were incorrectly assessed ; failure to allow petitioner an opportunity to lead evidence to explain factor providing exemption to delay if any by itself are material defects and patent illegalities nullifying impugned decree ‑‑ Cumulative effect of all material irregularities vitiated award and consequently rendered all proceedings recorded in the matter as without lawful authority and coram non judice and as such of no effect‑Decree passed on basis of said award, held, improper and defective on merits, being violative of law

(q) Limitation Act (IX of 1908)‑

S. 3‑Limitation‑Void proceedings‑Limitation, held, would not apply at all when proceedings were found to be void and coram non judice. Hussain Bakhsh and others v. Settlement Commissioner and others P L D 1969 Lab. 1039 ; Syed Muhammad Alam v. Syed Mehdi Hussain and others P L D 1970 Lab. 6 ; Karim Bakhsh and another v. Gul Muhammad and others P L D 1971 Lab. 746 ; Faqir Muhammad v. Mulla Mahmood P L D 1973 Quetta 1 ; Syed Nazir Hussain v. Settlement Commissioner, Lyallpur P L D 1974 Lab. 434 ; Syed Qasim Shah v. Deputy Commissioner, Karachi and another P L D 1976 Quetta 42; Nawabzada Muhammad Umer Khan and others v. Pakistan through Secretary, Cabinet Division and others P L D 1982 Pesb.1 and Mst. Rahmat Bibi v. Punnu Khan and others 1986 S C M R 962 rel

(r) Civil Procedure Code (V of 1908 )

Ss. 100 & 115 ‑ Appeal‑Revision ‑ New pleas‑New pleas concerning question of fact or where equity was needed, held, could not be entertained at appellate or provisional stage‑Nevertheless if new plea concerning jurisdiction of Court or validity of proceedings was apparent on face of record, or validity of proceedings was based on admitted facts without any inquiry, in that event, same could always be gone into and allowed to be raised at any stage for effective disposal, to meet ends of justice.

Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies P L D 1964 S C 97 ; Haji Abdullah Khan v. Nisur Muhammad Khan P L D 1965 S C 69 ; Mansab Ali v. Amir and 3 others P L D 1971 S C 124 ; Maj. Syed Walayat Shah v. A4uzajfar Khan and other., P L D 1971 S C 184 ; Rashid Ahmed v. The State P L D 1972 S C 271 ; Sub.‑Major Fazal 1llahi v. The State P L D 1978 S C (A J & K) 80 ; Pakistan Tobacco Co. Ltd. v. Karachi Municipal Corporation P L D 1967 S C 241 ; Malik Rahmatullah and another v. Mian Muhammad Shafi and another 1986 S C M R 496 ; Nfaulvi Abdul Hamid v. Sabzal and others P L D 1985 Quetta 1 and Malik Muzaffar Khan v. Government of Punjab through Chief Secretary, Punjab, Lahore and others 1980 C L C 384 rel.

(s) Arbitration Act (X of 1940)‑

Ss. 30 & 33‑Arbitration‑Procedure‑Arbitrator, helot, could adopt his own procedure and was not bound by technicalities, or cumbersome procedure applicable for disposal of case before judicial forums‑At the same time, it could not be assumed that arbitrator would merely grope in dark, or would decide by guess or toss Arbitrator has to record some proceedings and adopt some criteria for arriving at final conclusion specially when matter at variance related to examination of huge record concerning numerous items.

(t) Arbitration Act (X of 1940)‑

‑‑ Ss. 8, 20 & 26‑A‑Arbitration‑Award ‑ Objection petitioner Reasons for award to be given, even if relevant law not requiring same‑Copy of contract was not placed on record ; Production of original document was not sought ; terms or nature of dispute was not determined ; scope of reference was not specified and claim of respondent was not available on record nor all questions raised in pleading were at all considered by arbitrator‑It was merely guess work, as to what proceedings must have been recorded by Arbitrator because no such document except award was placed on record and it was not indicated in what manner and on what basis or formula claim of respondent had been accepted by Arbitrator‑It was also not ascertainable whether or not it was in accordance with terms of contract agreement' or calculated on higher rates‑There was thus complete confusion and patent miss exercise of authority without indicating any standard or basis on which conclusions for award were arrived at by arbitrator‑Held, even if at that time, ,when award was given, relevant law did not contain that arbitrator should give his reasons, yet it was normally expected that decision pertaining to various items seriously disputed concerning huge amount of claim would contain some logic, reasoning and plausible explanation of circumstances finding favour with Arbitrator.

Muhammad Aslam Chishti for Appellant.

Ehsan‑ul‑Haq for Respondents.

Date of hearing : 30th April, 1986.

JUDGMENT

This Appeal No. 6 of 1977 is directed against order/judgment, dated 4th August, 1977 whereby trial Court has refused to set aside the award of the Arbitrator, dated 30th October, 1976. Whereas Revision No. 25 of 1977 is directed against decree passed by the said Court in pursuance of aforesaid

judgment/order.'

2. Brief facts in this matter are that on 8th June, 1960 respondent was granted a contract C. A. Order No. (10) by the Irrigation Department for construction of "Weir on Rakhshan river with channel near Partjgoor, District Mekran:" It is alleged that execution of said contract work was at its final stages when merely on account of political victimisation General Manager of respondent's 1‑irm was involved in criminal case registered with the Anti‑Corruption Police on account of which he had faced ordeals of trial and ultimately charges against him were found to be groundless by the Special Judge. It has been asserted that in spite of that Irrigation Depart ment failed to pay the dues of respondent, therefore, concerned authorities were approached whereupon Mr. Itaat Hussain, former Superintending Engineer, was appointed as Inquiry Officer to‑i probe into the matter. But as no fruitful results were coming forth and matter was being delayed therefore it initially a notice was given and thereafter on 21st August, 1978 respondent filed an application under section 8/20 of Arbitration Act before District Judge, Quetta seeking appointment of the Arbitrator for finalization of dispute. Prayer clause is however reproduced below :‑

"It is, therefore, prayed that the respondent may kindly be called upon to file the agreement and the order dated 2nd June, 1973 passed on the applicant's application dated 28‑5‑1973 in the Court and to make an order of reference to the said Arbitrator for settlement ;decision of all the disputes after obtaining parties respective claims and giving them due hearing."

The Notice of this application was given to petitioner ig response to the same on 21st December, 1973 Executive Engineer Mekran appeared in the Court alongwith Government pleader and filed written statement styling himself as respondent No. 2. Although factum of appointment of Enquiry Officer was admitted, yet request for appointment of Arbitrator for the disposal of dispute i‑a this case was refuted in para. "8" in the following terms :

"It is submitted that on the one hand the agreement was time‑barred and on other hand it was decided by the Government of Pakistan that no Government Department should go to arbitration hence forth with vide Letter No. D. O. 7/7 /72/Card/1, dated 17th June, 1972. The matter therefore could not be given to the Arbitration because it was clear violation of Government instruction. ‑Hence Mr. Itaat Hussain was appointed as Inquiry Officer to finalise the matter. The question of appointment of Arbitrator can be considered after the report of the inquiry Officer is received and concurrence of the Law Department obtained."

The order sheet indicate that on the same date Mr. Itaat Hussain, was appointed as Arbitrator but on account of hi.‑ failure to submit the award within specified time subsequently his nomination was changed tide order, dated 30th October. 1974 and Mir Baz Khan Mengal was appointed as Arbitrator. The said order is reproduced below

"30th October, 1974.

The parties with counsel.

Mr. Itaat was appointed Arbitrator on 21st December, 1973 since then he has not proceeded in the matter in spite of repeated adjournment. By consent, the reference to Mr. Itaat is withdrawn and Mir Baa Khan Mengal, ‑Former Deputy Commissioner has been appointed sole Arbitrator. He be informed for award to come up 16th December, 1974."

Mir Baz Khan gave his award on 30th October, 1976. Objections to the award were filed by petitioner on 16th May, 1977. In this case, respondent had also filed objections seeking direction to the Arbitrator to give award in respect of damages as well.

3. It may be seen that from petitioners' side a request was also made to the Court for issuance of direction, to the Arbitrator for producing in the Court, all the documents on the basis whereof the "Award" was made. This request was rejected by the trial Court by means of order, dated 18th

May, 1977 which is reproduced below :‑

"Application is rejected as the Arbitrator is not bound under the law to file any document."

A Review Petition was also filed by the petitioner on 27th July, 1977 for recalling aforesaid order as above order was in clear violation of requirements of section 14 of Arbitration Act.

4. In the meantime for determination of objection to the award ; trial Court framed following issue on 7th June, 1977 :‑

"Whether, the objection petition is within time 7"

5. Record reveals that after framing the above‑mentioned issue cast was adjourned to 27th July, 1977 for arguments on said issue, without allowing any opportunity of leading evidence. On 27th July, 1977 Review Petition referred to above was entertained and notice thereof was given to opposite side for filing reply on 4th August, 1977. Arguments on the question of limitation appeal to have been heard on the same date, viz. 27th July, 1977. Thereafter on 4th August, .977 award was made rule of the Court and objection petition was dismissed. Besides Review Petition was simultaneously dismissed without receiving any reply or bearing arguments in respect thereof. In order to appreciate various steps taken by the trial Court, it would be profitable to refer relevant order sheets :‑

Whether the objection Petition is within time.

Thus on the basis of judgment, dated 4th August, 1977 trial Court refused to set aside "the Award" and passed a decree which has now been challenged by way of appeal and revision.

6. Mr. Muhammad Aslam Chishti, learned‑counsel for petitioner has urged that ; (i) civil Court at Quetta had no territorial jurisdiction to adjudicate upon the claim in suit as the matter pertained to District Mekran, therefore, all the proceedings before the trial Court including appointment of arbitrator, etc. are a nullity in the eyes of law. (ii) In the contract there does not exist any clause for referring the dispute to the Arbitrator for settlement, therefore in the absence of Arbitration clause all the proceedings drawn in the matter are without lawful authority and of no legal effect. (iii) In the absence of Arbitration clause in. the contract, party cannot under any circumstances approach the Court under section 8/20 or seek appointment of Arbitrator. Therefore, original application made by respondent is contrary to spirit of Arbitration Act and, therefore, all the actions recorded in the matter have no legal significance and are of no effect. (iv) It was mandatory requirement of law that Arbitrator should file all the documents alongwith the award. Observation of trial Court rejecting this request by means of order, dated 18th May, 1977 and failure to review the same is unwarranted and contrary to settled principles. (v) Neither any term of reference were specified by the Court nor the same were settled or ascertained by the Arbitrator, nor are they indicated from the award, therefore, all the proceedings drawn by the Arbitrator are illegal and improper ; (vi) Arbitration Award is vague and does not indicate, what material was examined or which of the documents were taken into considera tion by the Arbitrator and what admissions were made by the department. Therefore "Award" is not valid". (vii) That Arbitrator bas not maintained any record of the proceeding, which renders the award as void, (viii) The "Award" is given in an "arbitrary" manner without applying mind. to the facts of the case which is evident from the fact that in two connected cases culminating in Appeal 'Nos. "5" and "6" of 1977 wherein, o‑.e of the grievance, which pertained to "Loss of business on account of withholding of bills" was common but in all these three matters different conclusions have been arrived at. (ix) That original application, dated 24th August, 1973 which was filed by respondent in the Court was hopelessly barred by time, which aspect has not been taken into consideration either by trial Court of by the Arbitrator.

Mr. Ehsanul Haq, learned counsel for respondent opposing the main tainability of appeal has vehemently contended that (i) both (Q) appeal and (b) revision simultaneously against the same judgment and deer; a are not maintainable. (ii) Court‑fee has not been paid as required under law, there fore, Appeal as well as Revision merits dismissal. (iii) Since"petitioraer has failed to establish misconduct of Arbitrator, therefore, Award would be deemed to have been properly procured as such impugned judgment and decree is proper.

It would be appropriate to deal with legal objections regarding main tainability of appeal and Revision petition first. '

Learned counsel for petitioner had contended that order of rejection of application to set aside award and judgment for pronouncing the decree on, the basis of award are deemed to be two independent acts of for which separate remedies are provided by the law. It is argued that order of refusal to set aside the award is independently appealable under section 39, subswtion (4) of the Arbitration Act.

For proper appreciation of the above contentions reference to sections 17, 39 and 41 of the Arbitrator Act hereinafter called "The Act" is necessary which are therefore reproduced below :

"Section 17'.

".lodgment in terms of award'‑Where the Court seas no cause to remit the award or any of the matters referred to arbitration for considera tion or ‑to set aside the award the Court, shall, after the time for making an application to set aside the award has. expired, or such application having been made after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess, of, or not otherwise in accordance with, the award."

Section 39. Appealable Orders.‑(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order:

An Order‑

"(i) superseding an arbitration

(ii) on an award stated in the form of a special case ;

(iii) modifying, or correcting an‑award ;

(iv) filing or refusing to file an arbitration agreement ;

(v) staying or refusing to stay legal proceedings where there is an arbitration agreement ;

(vi) setting aside or refusing to set aside an award : ,

Provided that the provisions of this section shall riot apply" to any order passed by a Small Cause Court.

(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court."

Section 41. Procedure and powers of Court.‑Subject to the provisions of this Act and of rules made thereunder‑

(a) the provisions of the Code of Civil Procedure, shall apply to all proceedings before the Court, and to all appeals, under this Act, and

(b) the Court shall haue, for the purpose of, and in relation to, arbitration proceeding the same power of making orders in respect of any of the matter, set out in the Second Schedule as it has for the purpose of, and in relatw;i to, any proceedings before the Court.

"Provided that nothing in clause (b) shall be taken to prejudice any power which tray be vested in an arbitrator or umpire for making orders with respect any of such matters."

Apparently when decree is passed in accordance with award, appeal is not maintainable under section 17 of Arbitration Act, it is thus contended that when remedy by wav of appeal is not available, aggrieved party can invoke revisional jurisdiction by virtue of section 41 of Arbitration Act. Bare perusal of aforesaid provisions would indicate that appeal A against decree pronounced on the basis of award is completely barred under section 17 of "The Act". This position has also been candidly conceded by learned counsel for respondent. Careful examination of aforesaid provision of law indicates that although there exists a casual con nection between order, rejecting the application to set aside the award and B pronouncement of judgment upon. which decree has to follow. Yet obviously these are two Independent actions of the Court, designed to have different consequences, therefore evidently remedies to challenge are not the same.

Reference to subsection (iv) of section 39 of "the Act" specifically provides appeal against an order whereby p:tition of seeking to set aside "the award" has been refused. Therefore, it has to be seen whether on account of subsequent step, which in so cases may be simultaneously taken by the Court whether remedy, available to the aggrieved party against earlier action is automatically nullified. For proper appreciation it is profitable to consider following decisions on this point Soudamini Ghose v. Gopal Chandra Ghose ((1915)281 C557).

"A preliminary objection has been taken to the competence of the appeal, on the ground that as a decree as already been drawn up in accordance with the judgment pronounced on the basis of the award and as such decree is not open to appeal under clause (2) of paragraph 21, the order must be deemed to have merged in the decree and to be no longer liable to be challenged by way of appeal. In our opinion, the preliminary objection must be overrules. It cannot be disputed that under clause ( f ) of subsection (1) of section 104 of the Code, an appeal lies from an order filing or refusing to file, an award in an arbitration without the intervention of the Court. Sub‑appeal may be preferred at any time within the period prescribed therefar, by the Indian Limitation Act. The fact that a decree is drawn upon the basis of the judgment which follows the order cannot take away the right of appeal of the party aggrieved by the order. No doubt the decree cannot be assailed by way of appeal, except on 'the ground that it is in excess of or not in accordance with the award. Rut this does not justified the inference that as soon as the decree is drawn up, the order which is its foundation becomes merged therein, and loses it character as an appealable order."

Khetternath Ganguly and another v. Ushabala Dasi ((1915)221C391).

'Besides, the matters to be considered in an appeal against an order filing the award are totally different from the matters to be con sidered in an appeal against the decree based upon the award. An appeal will lie against the decree only if, and in so far, as it is not in accordance with or is in excess of the award. A decree may be perfectly in accordance with the award, but a party may have good ground for complaint against the order filing the award, and we are unable to hold that although a party is expressly given a right of appeal against such an. order, such right is taken away as soon as the Court makes a decree in accordance with the award.

Reference was also made to that class of case where it has been held that it is not open to an appellant to challenge the correctness of an interlocutory order or preliminary decree without preferring an appeal against the final decree, where (as explained in subsequent cases) the final decree has been made before the appeal against the interlocutory order or preliminary decree has been referred. But the analogy of these cases cannot apply to a .case like this. The reason of the decision in that class of cases, is that the appellant could have appealed against the final decree, whereas a decree based upon an award is not appeal able where such decree is in accordance with the award."

Considering the view opined in the above‑mentioned reports and clear provisions of section 17 and section 39(iv) of the Act it is quite manifest that order refusing to set aside 'award is independently challenge able and is evidently distinct from "decree" which may follow subsequently or by a simultaneous Act. In case Zafar Hussain Rizv' v. Muhammad Hanif (1980 C L C 2177), briefly almost same view has been expressed at page 2179.

"On parity of reasoning. an order setting aside or refusing to set aside an award under section 30, Arbitration Act by its own force does not have the effect of a decree notwithstanding the fact that decree may be subsequently prepared in terms of the award. The Full Bench of the Dacca High Court in Mrs. Mumtaz Malik v. Taxing Ofcer considered the question of court‑fees, in somewhat similar way in an appeal from an award passed under the East Bengal (Emergency) Requisition of Property Act, 1948. They also took the view that the Memorandum of appeal from an award under the said enactment was not a decree or an order having the force of a decree. . . . ."

Concurring with the above view it is ruled that wheri appeal challenges only order of rejection of application to set aside the award the same is appealable under section 39(iv) of the Arbitration Act and for such appeal Court‑fee would be regulated by Article 11 Schedule II of the Court Fees Act, 1870. In the circumstances with utmost respect, I am not persuaded to agree with observation of this Court in Province of Baluch istan v. Sardar Muhammad Usman Khan (Appeals Nos. 2 to 5 of 1980),, in so far it conflicts with the above quoted view. It is however, clarified that such appeal will be restricted only to the question relating to cause of refusal to set aside the award. Such an appeal thus cannot be deemed to challenge the decree if passed in the case. Thin line of distinction prescribed under the law is therefore, to be kept intact, else provision of section 39(iv) would be straightaway frustrated.

Now it has to be seen whether any remedy is at all available to the petitioner, as regards decree passed in this case on the basis of award. As already observed.appeal is not maintainable against the decree in view of clear provision of section 17 of the Act. Therefore, can revisional and supervisory jurisdiction of this Court for considering illegality misexercise D or illegal exercise of jurisdiction, material irregularity in the proceeding or judgment or glaring violations of law be exercised. There are host of judicial. pronouncements on this aspect. However, to arrive at correct finding it would be appropriate to examine some of the case‑laves. Amod,Kumar Verma v: Hari Prasad Burman and others (A I R 1958 All. 720).

17. Though the trial Court has ordered a decree to be passed no decree has been prepared yet. What purports to be a decree is nothing but a formal order; it reproduces the operative words of the order of the trial Court. It is on the form of a decree but that would not convert it into a decree in accordance to its contents it was not a decree. I do not understand how it can be treated as a decree when it itself directs a decree to be prepared.

Since a decree is to be prepared in compliance with it, it itself cannot be a decree. ' Since there is no decree the bar imposed by section 17 on an appeal does not operate. Moreover, section 17 bars an appeal from a decree (Except on the ground of‑ its being in excess of the award only if the decree is passed in a proceeding governed by sections 14 and 15, 16 and 1.7. Surely if some Court passed a decree on the basis of an award without having jurisdiction or without the award having been filed properly before it, it ‑ cannot be contended that no appeal , would lie from it except on the ground that it is in excess of the award.

It is true that there is no right of any appeal from any order except an order setting aside or refusing to set aside the award. Here the appeal is from an order refusing to set aside the award, but when disposing of the appeal it is open to this Court, to set aside any consequential or incidental order passed by the trial Court. Even if the order refusing to set aside the award is maintained on appeal any consequential or incidental order passed by it without jurisdiction or wrongly can be set aside.

In any case it can be set aside by us in exercise of our revisional jurisdiction and we can exercise our revisional jurisdiction while exercising our revisional jurisdiction while exercising our appellate jurisdiction. It is not essential that there shouted be an application under section 11,5, C. P. C. before we can exercise our revisional jurisdiction. Revisional jurisdiction certainly discretionary, but in the present case there is every reason for our exercising it to set aside the order of the trial Court which was not only without jurisdiction but also against the principles of estoppel and the principle; of natural justice that no order should be passed against a persan without giving him an opportunity to be heard.

Sri Jagdish Swarup pleaded that if substantial justice had been done by the direction of the trial Couit that a decree shall follow 'we should not interfere but justice ought to be done in accordance with the law, and moreover, since we do not know the merits of the disputes between the parties we are not in a position to say that the decree is in accordance with the legitimate rights of the parties.

"Even if the formal order were treated as a decree we would have juris diction to set aside decree.. Section 1'1 as said already does not bar an appeal from any decree passed in any circumstance whatsoever; it bars an appeal only if the decree teas passed in a proceeding under sections 14, 15, 16 and 17. If it was passed in another proceeding it would be appealable as a decree under the Coda 'of Civil Procedure."

(ii) Gunendralal Das Chowdhury and others v. Mitandralal Das Chowdhury (1969 D L C 49)

So, in view of the fact that the requirements as contemplated under section 17 of the Arbitration Act having not been complied with in the instant case the decision of the learned Munsif according to to Mr. Sen, is not a decree under section 17 of the Act and as such the provisions of appeal as made under section 17 of the Act are not attracted in the facts and circumstances of the present case. Mr. Sen also contends that in the instant case the provisions as laid down in section 39, subsection (1), clause (6) as to appeal are not also attracted in the facts and circumstances of the present case so after referring to the provisions of law from the Arbitration Act as mentioned above. Mr. Sen their contends that the revisional application against .the decision of the learned Courts below before me is quite maintainable in accordance with the law. Before I go to discuss the decisions which have been referred to me by Mr.Sen and also Mr. Banil appearing on behalf of the opposite party, I would like to say that the provisions as laid down under section 115 of the Code of Civil Procedure is wide enough to call for an interference by this Hon'ble Court in a case like this, particularly because the High Court can suo morn' interfere with a wrong decision under section 115 of the Code of Civil Procedure. In support of his contention. Mr. Sen has reterred me to the decision of various High Courts and particularly to a decision of Supreme Court in the case of Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies P L D 1964 S C 97. Their Lordships of the Supreme Court in para. II of the said decision have clearly decided the law on the point and I would like to quote the same in thi‑s connection:‑

"When questioned as to why the illegal order of 22nd April, 1960 should not have been set aside in the exercise of revisional powers all that learned counsel for the respondents urged was that the limitation for fiting an application for revision had expired when the leaned single Judge. decided the case, and the Revision before him was not directed against the order or 22nd April; 1960, but against the order of the trial Court setting aside the ex parte decree. This contention is wholly devoid of force. The Limitation Act does not provide for any period of limitation for an application in Revision. The only article ‑ which could be applicable was the residuary Article 181 which provides a limitation of three years for an application but even that Article will not stand in the way of the exercise of revisional power for these powers can be exercised suo motu. ' At the same it should be remembered that the respondents had theta. selves approached the High Court in the exercise of its revisional jurisdiction and once the High Court is seized of the case in the exercise of such jurisdiction it can in accordance with section 115, C. P. C. make such order in the case as it thinks fit."

(vi) Balawal Khan v. Cape. Muhammad Alarn Khan and others (P L D 1956 Lah. 494):

"Before concluding, I have to mention that the . respondent cited a number of cases laying down that revision does not lie when the Court, after considering the objections to an award, has set it aside though in doing so it may have preached some wrong conclusion of law or fact. It is not necessary f r me to go minutely into the matter as I have found the award to be invalid. I may point out, however, what I regard to be the general principle applicable. Conclusions of law or fact are not per se grounds for revision. But if a Court misinterprets the law relating to its own jurisdiction with the result that while under the law it ought to have proceeded under the provisions relating to arbitration, it wrongly tries the case on merits, that would be a good ground for revision."

(vii) Syed Hussain Shah v. Haji Ghulam Hassan Khan (P L D 1953 Pesh. 59)

"The policy of the Arbitration Act is that after an award is filed in Court, and after complying with the. provisions of law contained in different sections of the Arbitration Act, the Court should pass a distinct order, either to set aside the award, or refusing to set aside the award. That such a distinct order should be passed by the Court is clear from the wordings of section 17 read with section 39 of the Act, because until and unless such an order exists on the record no appeal lies from the order of the trial Court. But enact ing section 39, the legislature clearly gave a right to the aggrieved party to go up on appeal against certain order, which the Court could not take away from him by omitting to pass such an order. After writing a distinct order, with regard to the setting aside, or refusing to set aside the award, the Court should then pass another order of pronouncing judgment according to the award. The decree is the final stage of the arbitration proceedings, which can only be reached after the orders mentioned above have been passed in clear words. No right of appeal exists from the decree passed under the above circumstances by the provisions of section 17 of the Arbitration' Act. It is true that when a Court rejects the objection of a certain party, and pronounces its decree, the order refusing to set aside the award and pronouncing judgment according to the award is implied therein, but then a Court of law should not leave anything obscure; it should be clear and precise in those orders so that a party may not be divested of the right which the law extends to him."

(viii) Noor Muhammad Sharlf v. Mirza Muhammad Ashraf and others (1980 C L C 1984):.

"The first question in this case is whether the revision petition it competent. I am of the view that there can be no objection to the maintainability of this revision petition in view of the circumstances of this case. Section 39 of Arbitration Act provides for orders which are appealable. One of the categories of the orders is where it is against the order setting aside or refusing to set aside and award. If the learned trial Court had issued notice after the filing of the award to the. petitioner about the filing of the award and had given him an opportunity of raising objection within the time fixed by the Limitation Act, the matter would have fallen within the provisions of clause (vi) of subsection (1) of section 39 of the Arbitration Act and the judgment would have been appealable since the order could have amounted to an order refusing to set aside an award. But in the present case, that opportunity was never afforded. In these circumstances, it cannot be said that the matter fell within the scope of clause (vi) of subsection (1) of section 39. The only other remedy is by Revision Petition which has been pursued by the petitioner.

The Revision Petition is accepted with. costs, the order and decree is set aside and the matter is remanded to the learned trial Court to give an opportunity to the petitioner to file necessary objections."

(Ix) Harbhan Dal and another v. Ladli Saran and another (A I R 1933 Oudh 547):

It cannot be said that in no possible case a revision be entertained against such decree. If for instance, it can be shown that the lower Court acted altogether without jurisdiction in passing a decree in terms of the award, ii: would be permissible for a Court to entertain revision under section 115, C. P. C. It is therefore, necessary to examine the applicant's contention on its merits."

(x) Debir‑id‑Din v. Amina Bibi and others (P L D 1982 Ouetta 52):

"A preliminary objection has been taken to the effect that no petition in revision lies against a judgment and decree passed in accordance with an award filed in the suit following the arbitration proceeding under Schedule 11 to the C. P. C. and in support of this submission 'reference has been made‑ to the case of Ghulam Khan v. Muhammad Hassan. There is a great deal of force in the objection, but at the same titre, I am not prepared to lay down as a general rule that in no case in which an award. has been filed and decree passed in accordance therewith, can this Court interfere under section 115, C. P. C. It is conceivable that there may be cases in which the Arbitrators or the Court may have exceeded their jurisdiction or acted with material irregularity in the conduct of the proceedings."

(xi) Delhi Cloth and General Mills Co. Ltd. v. Firm Kidari Pershad Chhedi Lai of Ferozpore Cantonment (A I R 1921 Lah. 396):

"It is contended for the petitioners that in coming to this finding the lower Court has misconceived the evidence. It has been held in Panna Lai v. Soman that a revision lies against a decree upon an award, where the Court which passed the committed an error in procedure or has misused the jurisdiction prescribed by the C. P. C. If the finding of the lower Court has proceeded on a misconception of evidence as contended by the petitioners, this would be an error in procedure justifying the interference of this Court in Revision."

Thus taking into consideration the preponderant view expressed in aforesaid judgment, I am inclined to hold that though in the event when decree is passed on the basis of award, according to section 17 of the Arbitration Act appeal is not maintainable, yet on the pointation of apparent illegality impropriety material irregularity, misexercise of E jurisdiction, lack of Jurisdiction or violation of law or established procedure same can however, be challenged by way of Revision Petition within the purview of section 115, C. P C. Learned counsel for respondent attempted to place reliance on the observation in case Malik Ghulam Hassan v. Government of Baluchistan (P L D 1982 Ouetta 52) contending that State had itself not pressed Revision Petition maintaining that it was incompetent therefore, on the same analogy petitioners are estopped to press this Revision Petition. I am afraid such circumstances cannot be legitimately drawn in this case because in the above report Court has riot given any decision regarding maintainability of revision petition. Undoubtedly same was not pressed by learned Assistant Advocate‑General,

Therefore concession made by State counsel in said case cannot constitute a precedent for debarring it to plead validity and maintainability of present Revision Petition. In the circumstances reference to the above report has no legal bearing on this aspect of the case. In view of above discussion p I have no hesitation to conclude that, both (i) appeal and (ii) Revision filed by petitioner are maintainable to the extent of their respective sphere and scope as prescribed by law. Next objection relates to deficiency of Court‑fee on appeal and Revision Petition. Learned counsel for petitioner relied on the observa tion of cases.

(i) Soundamini Ghose v. Gopal Chandra Ghose (1911) 28 I C 557, and

(ii) Khetternath GangulE, and another v. Ushabala Dasi (1915) 22 I C 391 and has stressed that court‑fee will be payable.

Schedule II Article 11, of the Court Fees Act. However, learned counsel for respondent relying on the observations of this Court in cases Province of Baluchistan v. Gul Hassan, and Province of Baluchistan v. Sardar Muhammad Usman Civil Miscellaneous Appeal No. 2 of 1980 has contended that ad valoren court‑fee is payable. It may be seen that true import of relevant provision of Court Fees Act has been lucidly discussed. In case Zafar Hussain Rizvi v. Muhammad Hanif, and

Thus when appeal filed by aggrieved party is aimed only at challenging the order of Court refusing to set aside the award or otherwise in that case payment of court‑fee shall be regulated by Article 11, Schedule II of the Court‑fee Act. It is pertinent to mention here that probibition contained in section 17 of the Arbitration Act regarding non‑maintainability of appeal against decree was neither mooter nor considered in any of the above‑quoted Quetta judgments. In the circumstances same are not applicable on all force to the facts in this case. However, to the extent observed above I humbly dissent from the observation of said reports.

It may, however, be observed that in such appeals, decree passed in the matter pursuant upon judgment pronounced by the Court cannot be directly questioned. Therefore, in the event that revision petition is found to be maintainable for challenging the validity of said decree, then it would be necessary to ascertain as to the amount of court‑fee ought to be paid on the memo of revision petition. It has been vehemently contended by learned counsel for respondent that whenever a decree is sought to be challenged directly or indirectly an aggrieved party can do it only by paying ad valoren court‑fee. In support of his contention in case Gui Hassan v. Province of Baluchistan and Province of Baluchistan v. Sardar Muhammad Usman (Civil Miscellaneous Appeal No. 2 of 1980) were also referred. Whereas learned counsel for petitioner has strenuously argued that court‑fee in such events is chargeable under Article 1. Schedule 11 and as such petitioner is not liable to pay ad valorem court‑fees. He has however. contended that if at all petitioner is found to have affixed deficient court‑fees on the memo. of revision petition in that case time he granted to petitioner to make up deficiency within the purview of section 1.49, C. P. C.

It may be seen that Article 13(A) of Schedule I of Court‑Fees A specifically deal with the manner of payment of court‑fees when revisional jurisdiction is invoked either to challenge an order or decree of subordinat Courts. There is, however, no mention as regard amount of court‑fee i case revision petition is filed against decree of original Court as in the) instant case. Any how evidently wherever decree is shown to have been, challenged byway of appeal or revision, court‑fee is required to be paid on ad valorem basis. But learned counsel for petitioner has argued that in the absence of specific provision memo. of petition would be deemed to be chargeable in accordance with Article 1 of Schedule II and no omission could be provided to law, for burdening the petitioner with the amount of court‑fees which otherwise has not been prescribed. It may be seen that whenever legislature provided mere application for invoking revisional jurisdiction in that case its manner and scope has been specifically defined, therefore by comparing provision of Article 13‑A of Schedule I an Article 1 of Schedule 11 contentions raised by petitioner does not appear to be well conceived. All the same it is quite manifest that wherever decree of Court Is required to be challenged either directly or indirectly ad valorem court‑fees has been prescribed. Therefore in my opinion no departure can be taken in the matter of payment of court‑fees when decree of the Court is sought to be challenged in the instant case. Here it may be mentioned that 1 am conscious of principle of causa omissus. Normally while interpreting provisions of law omission cannot be supplied. But at the same time by complaining effect of various provisions real intent of J legislature can always be ascertained. Detailed scrutiny of relevant provisions do indicate that whenever decree of the Court is challenged directly or indirectly by way of appeal or Revision, the court‑fees will be payable on ad valorem basis. It is in the circumstances to be considered whether time for payment of court‑fee be allowed to petitioner as con templated under section 149, C.P.C. or not. Evidently question of payment of court‑fees on the memo of revision petition is extremely debatable. Therefore, deficiency in the levy of court‑fees can hardly be deemed to be mala fide, intentional or contumacious, in the instant case. Besides respondent in the reply, dated 7‑6‑1981 and application dated 17‑12‑1985 has himself alternately offered to make up deficiency if so directed by the Court.

(Relevant portions of said application and reply are however re produced):‑

"It is, therefore, prayed that this Hon'ble Court before hearing of the revision petition/appeal, may be pleased to direct the petitioner/ appellant to make deficiency of court‑fee leviable under the law."

That in this case the petitioner has not paid the requisite court‑fee, therefore, either the Revision Petition is liable to be dismissed or in the alternate the petitioner must pay the requisite court‑fee before the revision petition is heard on merits.

It is, therefore, prayed that in the interest of justice, either the Revision Petition may kindly be dismissed for non‑payment of requisite fee or the petitioner should make good the deficiency if the petitioner so chooses."

Moreover, concept for extension to make up deficiency has been exhaus tively elucidated by the Supreme Court in case Siddique Khan and 2 others v. Abdul Shakur Khan and another ((1) P L D 1984 S C 289). Relevant observations are reproduced below:‑

"This Court has also held though in a different context that the institution of the suit is by presentation of the plaint when it is accepted by the Presiding Officer, "any defects notwithstanding."

See Muhammad Siddlque v. Zawar Hussain Abidi. To the similar effect namely that validity for limitation is not affected by d;ficient court‑fee, are Gavaranga Sahu v. Botok, ishna Patro, and Har Ram v. Akbar Hussain wherein it was held that the plaint is a plaint even if it is not properly stamped. See also Ramgopal Chunilal v. Ramsarup Baldevdas and others, George Benjamin Hampson v. deewanmall Bros, and Stuart Jkinner alias Nawab Mirza v. William Orde and others.

It is also appropriate here to state the well‑accepted rule about Courts, attitude towards the collection of court‑fee as agent of State. It is to the effect that the Court‑Fees Act like the other fiscal statutes is to be construed strictly and in favour of the subject; and that it was passed with the object of securing revenue for the benefit of the State and not to arm a litigant with a weapon of technicality to harass his opponent See Tachappa ubrao v. Shidappa Venkatrao, Muhammad Sharif v. Mst. Natho and Sharaf Faridi v. M. S. Shahani.

One more conclusion that can be drawn from' the foregoing discussion is that the failure to supply proper court‑fee in the context of the Court‑Fee Act and section 149, and Order VII, rule 11(c) can at best be equated with non‑prosecution and not the bar of limitation. Accordingly, consideration in that behalf for exercise of discretion under sections 148 and 149 and the relevant provisions of Court‑fees Act should be different from those under section 5 of the Limitation Act, which in any case does not apply to the suits. To apply the latter to the former cannot be justified on any rule of interpretation. This is what was thought as the proper approach by the Lahore Full Bench in the case of Jagat Ram (1938) where discovering the meaning of bona fides from the General Clauses Act rather than applying the Limitation Act. In the light of these additional reasons on this subject the rule laid by this Court in the cases of Mst. Parveen (1983) and Shahna (1983) is re‑affirmed. For all these reasons it is accordingly held that when considering the options for exercise of discretion for grant of time for supply of deficiency in the court‑fee. considerations relevant to bar of limitation shall not be taken into account.

The P. C. case of Stauri Skinner alias Nawab Mirza (1879) is indeed very instructive regarding some salient features of the controversy which are the same today‑more than a century later It is high time that notwithstanding the judicial exercise, the legislative intervention should also be seriously considered on the lines that the law of court‑fees might be totally separated from that of Civil Procedure Code. And if the law of limitation is to be introduced at all in relation to court‑fee it should be done clearly and specifically in the law on that subject. In doing so some, of the practical aspects pointed at page 135 of the report. in Skinner's case might serve as guidelines even though the case formally was concerned with the late payment of court‑fee by a plaintiff, who gave up the plea to sue in forma pauperis and in the meanwhile limitation period elapsed. Mention is also made of benefit to both sides if it is adjudicated. The theory of conversion of piece of paper into a plaint only on the day of payment of the court‑fees, was rejected without reservation.The following very weighty observa tions cannot at all, the lost sight of even today.

"The petition as plaint was placed upon the file and numbered on the 19th of July, 1973 and this is the plaint that is allowed to go on Although the analogy is not perfect, what has happened is not at all unltlCe that which so sommonly happens in practice in the Indian Court that a wrong stamp is put upon the plaint originally, and the proper stamp is afterwards affixed. The plaint is not converted into a plaint from that time only, but remains with its original date on the file of the Court, and becomes free from the objection of an improper stamp when the correct stamp has been placed upon it.

In this behalf reference may also be made to case reported in Hashmat Ali v. Muhammad Shurif and others (1985 S C M R 301) and Gulzar Hussain v. Abdur Rehman .( 1985 S C M R 301). Thus, fortified by instructive rule laid down in the above‑quoted judgments and keeping in view complexity in interpreting the legal position regarding levy of court‑fees in this it would be necessary to grant reasonable time to petition to make up the deficiency of court‑fee. Accordingly petitioner is directed to pay up the court‑fees on the amount subject‑matter of decree, calculated on act valorem basis within two months. Now so far merits are concerned it has been argued that proceedings from the very inception were devoid of lawful authority as there was no arbitration clause in the agreement. Besides the original Court has no territorial jurisdiction to entertain the matter as contract pertained to Panjgoor. Correctness of the impugned order on the point of limitation has also been seriously criticized

Mr. Chishti learned counsel for petitioner has strenuously urged that award was filed in absence of petitioner or his counsel and no notice as required by law was given consequently effect of mandatory language of section 14 (2) and Article 158, Limitation Act, the starting point of limitation has been misinterpreted.

Whereas, Mr. Ehsanul Haq learned counsel for respondent vehemently urged that award was filed in the Court on 27‑11‑1976 and thereafter Government pleader had been obtaining time to file objections, therefore, it is not open for the petitioner to plead absence of notice about filing of award. According to him question of limitation has rightly been decided by the trial Court.

Learned counsel for petitioner next contended that no opportunity for leading evidence was at all afforded which has caused prejudice, as factum of alleged notice for filing the award was clearly based on facts which needed proof. This aspect is also refuted by the other side, Further contention of petitioner side is based on the assumption that whole proceedings recorded in the matter are completely "nullity" in the eyes of law being totally without jurisdiction for want of Arbitration clause in the original agreement. In reply to this learned counsel for respondent argued that this point cannot be agitated at this belated stage in the exercise of revisional jurisdiction.

Lastly it has been stressed that despite specific request no document or record of the proceedings conducted by the Arbitrator has been pro duced. Moreover Arbitrator has not applied his mind in giving the award, because it is "stereotype" and carbon typed copy of the previous two awards given by same Arbitrator to two other matters which are also subject‑matter of consideration in Revision Petitions Nos. 23 and 24 of 1977. . Moreover respondent could not invoke provisions of sections 8 and 20 of Arbitration Act at the same time therefore, original application by itself was incompetent. '

All these points are interdependent. I will, therefore, record my reasoning on all these aspects together.

It has been canvassed, that application under sections 8 and 20 of Arbitration Act can be simultaneously instituted. Minute examinations of these two provisions indicated that although ultimate effect of both these provisions is the same yet they differ in material particulars as regards procedure for achieving said object. Subsection (1) of section 20 of Arbitration Act specifically envisages that proceedings. under this provisions can be drawn instead of action under Chapter 11. Bate perusal of section 8 pre‑supposes, availability of agreement containing arbitration clause and failure of the parties to appoint Arbitrator, according to its requirements, when after notice appointment can be sought by the Court, within the terms of Arbitration Agreement. However, when party does not opt to record proceedings under Chapter 11, which includes section 8 of Arbitration Act and instead thereof invokes jurisdiction of section 20 than it is apparently obligatory within subsection (3) of said provisions to ensure filing of Arbitration Agn ement to the Court before initiating further steps regarding appointment of Arbitrator, and reference of the dispute for disposal in accordance with Arbitration clause. Evidently law provides an option to the aggrieved party to apply under Chapter 11 or instead thereof to seek remedy under section 20, in which case however no notice provided for under section 8 would be needed. Iii the circumstances when application under section 20 can be filed only instead of taking steps under Chapter 11, as specifically prescribed in subsection (i) of section 20 therefore, contention of learned counsel for respondent that application under sections 8 and 20 can be simultaneously instituted does not appear to be well founded. However, in the peculiar circumstances of the case, it would not be necessary to decide whether original applica tions be treated under section 8 or section 20 of the Arbitration Act.

Next it may be seen that petitioner while seeking setting aside of award had inter alia pleaded that ; (i) the Court at Quetta had no territorial jurisdiction, (ii) application seeking reference to Arbitration under sections 8 and 20 of the Act was barred by time, (iii) there did not exist any arbitration clause in the agreement, (iv) trial Court decided the issue of limitation without affording opportunity to lead evidence and (v) that arbitrator omitted to take into consideration claim of petitioner.

However, perusal of reply, dated 26‑5‑1977 filed by respondent indicates that aforesaid contentions have been refuted mainly on legal pedestal asserting that all these objections were beyond the scope of section 30 of Arbitration Act. Apparently there is no specific denial as regards jurisdiction of trial Court to entertain main application. In fact respondent has merely challenged the propriety and validity of such objection petition. In the same way even during arguments it hag been emphasized that unless objections to the award were filed within prescribed period of limitation, trial Court could not consider the same. Additionally it has been can vassed that points which were not raised before Trial Court, cannot be permitted to be raised at this stage.

No doubt it is true that question of limitation for filing the objection to the award is of fundamental importance and question pertaining to is conduct of Arbitrator or the factum of award having been improperly procured, could be raised only within the period of limitation specified by law. There is however unanimity of view, that section 5 of Limitation Act does not apply for condoning the period in filing objections to the award. Therefore, it is always obligatory for the Court to satisfy itself whether an application seeking to set aside the award has been filed within time available under the law or not. Additionally before proceeding to pronounce judgment trial Court is bound to fully satisfy itself whether a all, there exists any cause to remit the award. Thus, it is a mandatory requirement to ascertain if any illegality is apparent on the face of record which thus may effect its validity or render it coram non judice or whether any substantially unjust or materially irregular action constituting glarrn violation of law exist which may frustrate very basis of the award. Evidently the trial Court enjoys plenary powers, to examine validity of Award taking into consideration requirements of section 16 of the Act, and thereby to determine whether or not there exist any cause to remit. This power is apparently in addition to and not in derogation of authority vested in the Court for disposing of objection filed by the party within the purview of section 30 or 33 of Arbitration p Act. The phrase "whether the Court sees no cause to remit the award" appearing in section 17 has to be given meaning to and same is required to be independently interpreted. Therefore, keeping into consideration all these factors and circumstances, I am inclined to observe that if any, Jurisdictional defect. lack of authority, excess of exercise of power. material irregularity, which is apparent on the face of it has been pointed out in that event trial Court cannot close its eyes to such inherent jurisdic tional defects or patently illegality or glaring violation of law. It thus obviously becomes obligation of the Court to ensure whether or not any cause to remit the award in accordance with section 16 existed or not. If the Court is legitimately satisfied that there is no cause to remit or nothing apparently vitiates the "Award", only then judgment would be pronounced to which decree may follow. I am afraid that in the instant case trial Court has unjustifiably ignored this aspect of authority vested in it by law and has only mechanically dealt with question of limitation, which in the circumstances is erroneous. Moreover question of limitation is always a mixed question of law and fact, therefore, trial Court acted illegally in deciding the issue of limitation without providing opportunity for leading evidence to the Petitioner. The impugned decree is, therefore, apparently defective on this score as well. Reference in support of above view can be had from following decisions :‑

(i) Cause to remit.

(i) Balawal Khan v. Capt. Muhammad A lam Khan acrd others P L D 1956 Lah. 494.

"I have no hesitation in repelling the contention of learned counsel. An award which is not valid must be invalid. There is no third category. The legislation has conferred a jurisdiction on the Court to‑ get the defects in some of the invalid awards cured i. e. if the defect is covered by the provisions of section 1. It will be observed that in the Arbitration Act of 1899, there was no limitation on the power of the Court to remit the award. It could be remitted for reconsideration whatever the defect in the award. Section 13 of the Act of 1899, for which the present section 16 has been sub stituted, ran thus

"(1) The Court may, from time to time remit the award to the consi deration of the arbitrator or umpire.

(2) Where an award is remitted under subsection (1) the arbitrators or umpire shall, unless the Court otherwise directs, make a fresh award within three months after the date of the order remitting the award."

If, I were to accept the argument of learned counsel for the petitioner then even if the award were to result in a decree which would be, on the face of it, illegal, for instance, a decree of a kind which neither Court nor arbitrator could pass, the award would be valid and a decree would have to be passed. The award might grant a decree for the custody of the wife to the husband., It may pass a decree for the defendant being subjected to physical violence. Still, according to learned counsel, the award would not be invalid, though it could be remitted, for it would be covered by clause (c) of section 16(l ).

A simple reply to the argument of learned counsel on this point is that the provision for remission is discretionary and not obligatory, as was held Choohur Singh v. Jeet Singh and Chunda Singh ; Sita Ram, v. Dhani Ram s and Sant Singh and others v. Jiwan Singly These judgments imply that the award which is not remitted is being set aside. In any case, if we interpret section 16 as discretionary there is an end of the argument of learned counsel. According to.him a decree must be passed on the basis of every award which A not set aside and only an invalid award can be set aside. So, according to learned counsel, if the Court does not think it fit to remit the award for reconsideration the result would be that a decree would have to be passed. This position is wholly untenable."

(ii) Messrs Naseem Bhai & Co. v. Messrs Pak Jute Balers Ltd. P L D 1965 Dacca 258.

"At the hearing of the Rule, Mr. Asrarul Hussain appearing for the petitioner. has urged that the award not having been set aside, the learned Subordinate Judge had no jurisdiction to remit the arbitra tion proceedings back to the Tribunal of Arbitration. He has further argued that the remitting of the award on the ground of non‑service of notice is not permissible under section 16 of the Arbitration Act, 1940.

We have examined the order passed by the learned Subordinate Judge and it seems to us that he has not given any decision on various points that were raised before him, in view of the fact that he has come to the conclusion that there had been in the eye of law, no determination in the absence of petitioner, by the Tribunal of Arbitration of the points which it was called upon to adjudicate. He has come to a finding affirmatively in favour of the defendant petitioner that thev did not receive notice of the proceedings. He, therefore, passed the order which has been impeached before us.

On an examination of the aforesaid order, we are of the opinion that the position resolves itself, thus: It is true that the award purports to determine the issue which the Tribunal of Arbitration was called upon, to determine; but since such purported determination of the issue was made behind the back of the defendant‑petitioner, they cannot be treated as legal determination of those issues. In our opinion this is the only sensible view which can be taken of the matter. An adjudication made behind the back of the parties is no adjudication at all in the eye of law. In these circumstances we think that it is permissible to remit the award back to the Tribunal of Arbitration inasmuch as legally there has been no determination of the issues raised before it".

(iii) Deo Narain Singh and others v. Siabar Singh and others A I R 1952 Pat. 461.

"These two objections, therefore, in my opinion must prevail. The order of the Court below adopting the award a.; a rule of the Court and passing a decree on the basis of the award is without jurisdiction and must b: set aside. . The mere fact that an objection was not filed by any of the parties to the award does not altogether absolve the Court from its responsibility of deciding whether there was a competent reference and whether the award was a valid award on the face of it. There are matters which really go to any objec tion by the parties, these matters had to be decided by the Court before a decree could be passed on the basis of the award. Section 16(1)(c) of the Arbitration Act itself provides for sach a case, namely, where an objection to the legality of the award is apparent on the face of it then the Court may either remit the award or may supersede it and proceed to decide the suit on merits."

(iv) Messrs Badri Narayan Agarwala v. Messrs Pak Jute Balers Ltd.P L D 1970 S C 43.

"The only other question that remains to be considered is whether in the absence of an independent application filed under section 33 of the Act the present question could be raised in the suit filed for making the award the rule of the Court. . ‑

Section 17 of the Act lays down that where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award the Court shall after the time for making an application to set aside, the award has expired or such application having been made, after refusing it, proceed to pronounce judgment. Section 30 enumerates the grounds for setting aside an award. The section reads as follows :‑

"An award shall not be set aside except one or more of the following

grounds namely :‑

(a) that an arbitrator or umpire has misconducted himself or the proceedings;

(b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35;

(c) that an award bas been‑ improperly procured or is otherwise invalid."

The appellant in the present case wants the award to be set aside on the ground that he did not execute the agreement which contained the arbitration clause. His case is that there was no valid reference. In my view such a relief comes within the purview of the expression "otherwise invalid' occurring in clause (c) of section 30, no doubt, uses the word "challenge as compared to the words "set aside" in section 30 but that in my view does not make any difference. Section 33 says also that when the existence of the agreement is challenged "that Court shall decide the question". These words read with the word "challenge" clearly empower the Court to set aside the agreement. In setting aside the agreement, after an award has been made on its basis, the Court set aside the award also and such a power is referable to section 30 in view of the expression "otherwise invalid" contained in clause (c) of section 30. According to me, therefore, since the agreement in question was challenged by the appellant after the award had been made there was no bar for him to do so in the present suit. The view of the Courts below that such a relief could be had only by a suit is, therefore, wrong.

In the result the judgments and decrees of the Courts below are set aside. The case is remitted to the trial Court to determine whether the appellant had executed the‑contract."

In the light of above discussions it is to be seen whether proceedings under the provisions of Arbitration Act were competently instituted, and the Court had jurisdiction to entertain the same. t is vehemently urged/ that 'contract" agreement executed between the parties does not contrarily any Arbitration clause. This factual position has not been specifically controverter by respondent in his reply dated 26‑5‑1977. Factually desire ability of raising this objection at such belated stage has been serious) questioned. In order to properly appreciate the effect of pleadings provisions of Order VIII, rule 5, C. P. C. are relevant whereby it is evident that if allegations are not specifically denied same shall be deemed to have T been admitted. Necessary, natural inference thus would be that there was no arbitration clause in the contract. In this view of the matte it becomes important to examine whether Court was vested with jurisdic tion to be adjudicated upon the alleged dispute within the purview o section 8/20 of Arbitration Act. It needs hardly to be emphasized that proceedings to settle the differences by way of arbitration is outcom of an arrangement mutually arrived at by the parties. In the given circumstances parties voluntarily accept the decision of such arbitrator to be bindings on them whether they agree with his findings or not. Thus disputes, which normally fall within exclusive domain of civil Court are obviously withdrawn by virtue of such arrangement from their ambit U_ for determination and settlement by, domestic tribunals. In the circum. stances for invoking jurisdiction of the Court for appointment of Arbitrator or reference of dispute whether under section 8 or 20 pre‑suppose existence of written arbitration clause in the contract agreement. Consequently, unless there exists an arbitration clause, it cannot be conceived that any application under section 8 or 20 of Arbitration Act can at all be filed in any Court. In such circumstances if any proceedings are initiated under Arbitration Act same would be without jurisdiction. a such completely quoram non judice Apart from absence of specific denial, copy of contract agreement is attached with memo of petition V which prima facie indicates that it does not provide arbitration clause.

It may be mentioned that para. 30 of said agreement does not constitute Arbitration clause as held by the High Court Karachi in Civil Suit No. 81 of 1971 Karamatullah Awan v. The Province oJ' Baluchistan and others decided on 26‑9‑1972. Relevant observation whereof are reproduced for ready reference :‑

"The question is whether this clause constituted an arbitration agreement between the parties in accordance with the definition of "arbitration agreement" contained in section 2 of the Arbitration Act, 1940, according to which such an agreement means a written agreement to submit present or future differences to arbitrations whether an arbitrator is named therein or not. An identical question arose in the Sind case Des Ram v. Secretary of State A I R 1936 Sind 201, in which the clause under consideration read as follows :‑

"Except where otherwise specified in the contract the decision of the Superintending Engineer of the Division for the time being shall be final, conclusive and binding on all parties to the contract upon all questions relating to the meaning of the specifications, designs drawing and workmanship or materials used on the work or as to any other questions, claims rights, matter or thing whatsoever in any way arising out of, or relating to the contract, designs drawings, specifications estimates, instructions, orders, or these conditions or otherwise concerning the work, or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof, or the contract by the con tractor, shall be final, conclusive and binding on the contractor."

Undoubtedly sections 8 and 20 of Arbitration Act, explicitly presupposes existence of Arbitration Clause, whether in the event of appointment of arbitrator or direction for reference of the matter to Arbitrator, with the intervention of Court. As a result of the same it is quite evident that in the absence of Arbitration clause application under sections 8 and 2 was totally incompetent therefore apart from the defect regarding territorial jurisdiction the proceedings drawn up in the matter without their being arbitration clause are deemed to be nullity in the eyes of law accordingly all steps taken .in the matter including reference to Arbitration, and judgment and decree passed by the Court, inherently suffer from lack o jurisdiction as such are void and of no legal effect.

Thus all the superstructure raised thereon automatically falls to the ground alongwith it There is plathora of case‑law wherein effect of proceedings and orders found to be void or coram non judice have been considered. However, in support of above observations reliance is placed on the following reported judgments. YousuJ' Ali v. Muhammad Aslam Zia and others (P L D 1958 S C 104), Syed Ali Abbas and others v. 1'ishan Singh and others (P L D 1967 S C 294), Rashid Ahmed v. The State (P L D 1972 S C 271), Nawab Syed Raunaq Ali v. Chief' Settlement Commissioner and others (P L D 1973 S C 236), Sind Employees' Social Security Institution v. Dr. Mumtaz Ali Trtj and others (P L D 1975 S C 450), Khuda Bakhsh v. Khushi Muhammad and others (P L D 1976 S C 208), S. Mushtaq Hassain Shah v. Riaz

Muhammad Hazarvi and another (P L D 1978 Kar. 612), Mistri Abdul Ghafoor v. Mst. Meraj Begum (P L D 1980 Lab. 414). Besides admittedly contract was executed at Panjgoor, and contract was also carried out there. In the circumstances Courts at Quetta had no territorial jurisdiction to adjudication upon the matter. Accord ingly in view of observation in The Board of Contra for Cricket in Pakistan v. Messrs Sind Cricket Association, Hyderabad (1980 C L C 683 ), Colony Thai, Textile Mill Ltd. v. Messrs Zahid and Brothers (1982 C L C 1409) and Agha Mahboob Shah v. Balu ehistan through .Secretary Government and others (P L D 1982 Quetta 84), There is no doub in observing that proceedings were not validly instituted at Quetta . This aspect coupled with above discussion obviously renders all the proceedings recorded in this matter, to be without lawful authority. It has been strenuously debated, that trial Court has not adhered to requirement of law either under section 8 or 20 of Arbitration Act in conducting proceedings in this matter. Irrespective of the arguments whether application should be treated under section 8 or section 20.

One thing is quite clear that either copy of agreement ought to have been filed by respondent or its production from petitioner should have been sought within the purview of section 20 of Arbitration Act. But unfor tunately necessary requirements have not oven followed at all in the matter. Strangely enough proceedings b.‑fore trial Court and Arbitrator have been recorded without taking into consideration the contract agreement and extent to which dispute was referable to arbitrator and without examining whether or not any arbitration clause at all existed. Obviously such blind actions would be contrary to spirit of law and justice therefore cannot be conveniently ratified merely on technicalities. Lacuna in the proceed ings are apparently fatal and would certainly cause prejudice to the effected party.

Having thus concluded that proceedings drawn up in the matter besides constituting material irregularity but are in fact coram non judice In such view of the matter the question about filing of objection to this award beyond period of limitation will not be relevant. Moreover on account of peculiar situation of this case question of limitation has not been correctly dealt with. Evidently relevant law and attending circum stances have beets incorrectly assessed. Additionally failure to allow B petitioner an opportunity to lead evidence to explain factor providing exemption to the delay if any is by itself a material defect constituting serious irregularity and patent illegality to nullify the impugned decreeon this score alone. It is now well settled that when proceedings are found to be void and coram non judice the limitation would not apply at all. In this behalf reliance can be placed on the observations in following cases :‑ 1

( ) Hussain Bakhsh and others v. Settlement Commissioner and others P L D 1969 Lab. 1039.

(ii) Syed Ut< hammad .91am v. Syed fehdi Hussain and others P L D 1970 Lab. 6.

(iii) Karim Bakhsh and another v. Gul Muhammad and others P L D 197 Lab. 746. '

(vi) Faqir Muhammad v. Mulla Mahrnood P L D 1973 Quetta 1.

(v) Syed Nazir Hussain v. Settlement Commissioner Lyalipur P L D 19.74 Lah. 434.

(vi) Syed Qasim Shah v. Deputy Commissioner, Kachhi and another P L D 1976 Quetta 42.

(vii) Naivabzada Muhammad Umer Khan and others v. Pakistan through Secretary, Cabinet Division and others P I. D 1982 Pesh. 1.

(viii) Mst. Rahmat Bibi v. Punnu Khan and others 1986 S C M R 962.

In the light of observations in the above reports, conclusion arrived at by the trial Court in the impugned judgment is apparently defective and erroneous.

Learned counsel for respondent seriously objected to the pleas raised on behalf of petitioner contending that same could not be permitted at appellate or revisional stage. In this behalf superior Courts have con sistently held that new pleas concerning question of fact or where equity is needed cannot be entertained, at appellate or revisional stage. Never theless if new plea concerning jurisdiction of the Court or validity of the proceedings is based on pure question of law or defect in proceedings apparent on the face of record, or validity of proceedings based on admitted facts witho4 any inquiry in that event same could always be gone into and allowed to be raised at any stage for effective disposal, to meet E ends of justice. In this behalf, I am fortified by the observation in the

following cases :‑

(i Muhammad Stvaleh and another v. Messrs United Grain and Fodder

Agencies P L D 19o4 S C 97.

(ii) Haji Abdullah Khan v. Nisar Muhammad Khan P L D 1965 S C 69.

(iii) Mansab Ali v. Amir and d others P L D 1971 S C 124.

(iv) Maj. Syed Walayat Shah v. Muzaffar Khan and others P L D 1971 S C 134.

(v) Rashid Ahmed v. The Sate P L D 1972 S C 271.

(vi) Sub.‑Major Fazal lllahi v. The State P L D 1978 S C (A J & K) 80.

(vii) Pakistan Tobacco Co. Ltd. v. Karachi Municipal Corporation P L D 1967 S C 241.

(viii) Malik Rahmatullah and another v. Mian Muhammad Shafi and another 1986 S C M R 496.

(ix) Maulvi Abdul Hamid v. Sabzal and others P L D 1985 Quetta I.

(x) Malik Muzafar Khan v. Government of Punjab through Chief Secretary Putrjab Lahore and others 1980 C L C 384.

It is strenuously argued by learned counsel for respondent, that pro ceedings conducted by domestic tribunal cannot be questioned and arbitrator was not bound to adopt detailed procedure for dealing with dispute between the parties, besides according to him claims of parties, has been thoroughly considered which shows proper exercise of authority by the Arbitrator. He maintained that production of agreement before Arbitrator or the Court wits not necessary, because the parties appearing before the Arbitrator were conscious of limits 'of the dispute. There is no cavil to the proposition of law that arbitrator can adopt his own procedure and is not bound by technicalities, or cumbersome procedure applicable for the disposal of case before judicial forums. At the same time, it cannot be assumed, that arbitrator would merely grope in the dark, or would decide by which guess or toss. He is obviously to record some proceeding and adopt some criteria for arriving at final conclusion specially when matter at variance relates to examination of huge record concerning and numerous items. However, in the present case it is a strange phenomenon that neither copy of contract was placed on record, nor production of original document was sought, nor the terms or nature of dispute was determined nor scope: of reference was specified, nor claim of respondent is available on record nor all the questions raised in the pleading were at all considered by arbitrator. It is merely guess work, as to what proceedings must have been recorded by the Arbitrator because no such document except the award has been placed on record. It is not indicated in what manner as on what basis or formula claim of respondent has been accepted by the Arbitrator. It is also not ascertainable whether or not it is in accordance with terms of the "contract agreement" or is calculated on higher rates., here is thus complete confusion and patent misexercise on authority which does not indicate any standard or basis on which conclusion for the award were arrived at by the Arbitrator. Though at the time when award in this case was given relevant law did not contain that arbitrator should, give his reasons, yet it is normally expected that decision pertaining to various items seriously disputed concerning huge amount of claim would contain some logic, reasoning and plausible explanation of circumstances finding favour with the Arbitrator.

There is an additional factor which also leaves an impression that Arbitrator has not applied his independent mind. There are two connected cases i. e. Revision Nos. 23 and 24 of 1977, in which except for certain legal points, facts are almost the same. Incidentally decree passed by the trial Court in said cases is separately consideration of this Court. It is not out of place to mention that those matters were also referred to the same arbitrator by a common order dated 3‑10‑1974, but award were given to him on 21‑4‑1975 and 20‑8‑1975 respectively. It is interesting to note that operative portion of the award in all three cases is verbatim the same which is reproduced :‑

"Several proceedings were held and the arguments put forth by the parties were heard. Documentary evidence shown and submitted by the parties on various dates in support of their case, were examined and discussed in detail. After and inconsequence of bearing all the statements, evidence and proof produced by the parties and on the basis of admission and verification from the record and also carefully considering the entire case, I make and declare this Award."

It cannot be believed that all these three occasions whenever learned Arbitrator set to decide the dispute exactly same words, without change of even punctuation were visualized by him. In my opinion it shows that said operative portion was copied to a stereotype manner, without independent application of mind to the facts of or circumstances of each case. Evidently as regard factual conclusions absolutely no reasoning or basis have been given in the award. It is further queer to note that one of the items of dispute concerning business loss for withholding payment, in which results should have been the same but learned Arbitrator arrived at different conclusion. Cumulative effect of all these material irregularitiesJt1 obviously vitiates the award.

In the light of above discussion I record my findings as under :‑

(i) Appeal as well as Revision filed by the petitioner is maintainable to the extent of, limits respectively prescribed by law.

(ii) For purpose of court‑fee appeal under section 39 of Arbitration Act is regulated by Article 11, Chapter II of the Court Fee Act.

(iii) Whereas court‑fee, in the matter of Revision petition, challenging the "Decree" passed on the basis of Award is chargeable on ad, valorem Basis".

(iv) Section 8/20 of Arbitration Act cannot be simultaneously invoked. As specifically provided in section 20 of the Act, said provision can be invoked only when aggrieved party does not opt, to commence proceedings under Chapter 11 of the Act. (v) Original application filed by respondent on 21‑8‑1973 under sec tion 8/20 of Arbitration Act before trial Court was, illegally instituted for want of territorial jurisdiction as well as absence of "Arbitration clause in the Contract Agreement dated 8‑6‑1960 forming basis of the claim ; consequently all the proceedings recorded in the matter are without lawful authority and coram non judice, as such are of

no effect. '

(vi) Without prejudice "decree passed" on the basis of Award in this) matter is even otherwise, improper and defective on merits, besides being violative of law.

(vii) Petitioner is liable to pay Court‑fees on "Ad valorem Basis". However, taking into consideration principle of law enunciated in case Siddique Khan v. Abdul Shakoor Klan and others P L D 1984 S C 289 and Malik Rahmatullah v. Mian Muhammad Shah 198 t S C M R 496 two months time is granted to the petitioner to make up the deficiency.

This Revision Petition is thus accepted, subject to payment of court fees within a period of two months as directed above. It is however, clarified that on the failure of petitioner to make up deficiency within specified period of two months, decision arrived at in the matter shall cease to be operative.

In the circumstances "Appeal No. 6 of 1977 as well as Revision No. 25 of 1977 is disposed of in the above terms.

Parties are however, left to bear their own costs.

M. M.H Petition accepted.

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