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Civil Appeal No. 19 of 1973, decided on 10th March, 1986.
(On appeal from the judgment of the Lahore High Court, dated the 8th December, 1972, passed in Civil Revision No. 739 of 1972).
‑‑Art. 185(3)‑‑Arbitration Act (X of 1940), Ss. 20 & 38‑‑Civil Procedure Code (V of 1908), S. 115(4), O. XXXIX, rr. 1 & 2‑‑Leave to appeal, recall of‑‑Petition for leave to appeal not competent‑‑Respondent's applications for filing of arbitration agreement and for interim injunction rejected by trial Court‑‑Appeal before District Judge treated as revision and accepted‑‑Petitioner's revision against said order before High Court, dismissed‑‑Leave to appeal granted to consider whether appeal lay against order passed by civil Judge‑‑Since second revision before High Court was barred under S. 115(4), C.P.C. order passed by High Court was without jurisdiction and hence no petition lay for leave to appeal against that order‑‑Leave granted was recalled and petition dismissed as being incompetent.
A.I. Chundrigar, Advocate Supreme Court and M.S. Ghorey, Advocate‑on‑Record for Appellant.
Munir Ahmad Sheikh, Advocate Supreme Court for Respondent.
Date of hearing: 10th March, 1986.
‑The respondent, herein, moved an application before the Civil Judge, Rawalpindi, for the filing of the arbitration agreement in terms of the arbitration clause under section 20 of the Arbitration Act, and also filed an application under Order XXXIX, rules 1 and 2, C.P.C. in which it was prayed that pending the settlement of disputes the appellant be restrained from realising any amount under the terms of the bank guarantee furnished by the United Bank Limited in its favour. The trial Court refused the prayer and dismissed the application by order, dated 31st of July, 1972.
Against this order the respondent went in appeal before the District Judge and as no such appeal was competent the District Judge treated the appeal as a revision and set aside the order of the Civil Judge and granted the interim injunction as prayed by the respondent by order, dated 22nd of September, 1972. The appellant preferred a revision against this order before the High Court which was dismissed and leave was granted by this Court to consider whether an appeal lay against the order passed by the Civil Judge.
Section 38 of the Arbitration Act enumerates the orders against which an appeal can be filed and the order in question was not one of those orders. Accordingly, the District Judge rightly treated it as a revision and disposed it of as such.
The second revision filed in the High Court against the order of the District Judge, dated 22nd of September, 1972, was barred under subsection (4) of section 115 of the Code of Civil Procedure, and the High Court wrongly entertained and disposed it of. Accordingly, the order passed by the High Court was without jurisdiction and hence no petition for leave lay against that order.
In this view of the matter, we would recall the order granting leave and dismiss the petition as being incompetent, but with no order as to costs.
M . I . Petition dismissed.
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