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Civil Review Petition No. 12‑R of 1982, decided on 30th April, 1985.

(On appeal from the judgment, dated 18‑5‑1982 of the Supreme Court of Pakistan in Civil Appeal No. 38 of 1975).

‑‑O. XXVI, r.l‑‑Arbitration Act (X of 1940), S. 20‑‑Review‑‑Appeal filed by respondent was directed against finding of High Court on one point i.e. that there was no arbitration agreement between petitioners and respondent and there war no appeal before Supreme Court with regard to other questions of law‑‑Contention by petitioner that Supreme Court after reversing finding of High Court with regard to point decided by it for disposal, should have remanded case to High Court for decision on other question of law and fats which were raised in Appeal before High Court and not decided by it, held, carried force as by not following said course an error was committed which was apparent on face of record‑‑Review petition allowed and case remanded to High Court for determination of other questions raised in appeal before it.

Aftab Ahmad Khan, Advocate Supreme Court and Rao Muhammad Yousuf, Advocate‑on‑Record for Petitioners.

Abdul Aziz Bajwa, Advocate Supreme Court for Respondent.

Date of hearing: 30th April, 1985.

‑ This is an application for review of the judgment of this Court, dated 18‑5‑1982.

Learned counsel for both the parties have been heard.

The facts, which form the background, are that petitioner No. 1 herein entered into an agreement with the respondent herein on 1‑10‑1967. The said respondent also entered into an agreement off 17‑11‑1969 with Cementation Company Limited (Petitioner No. 2 herein), which according to the respondent, was a subsidiary of petitioner No. 1. Disputes having arisen between the parties the respondent moved the Senior Civil Judge, Lahore under section 20 of the Arbitration Act, 1940 praying that the petitioners (herein) be directed to the original agreement, dated Ist October, 1967 as supplemented by the subsequent agreement, dated 17‑11‑1969 in Court.

Several contentions were raised by the petitioners to the jurisdiction of the Court to entertain the matter, as also on the merits, but the learned Senior Civil Judge, by his order, dated 12‑7‑1974, decided all the issues against the petitioners and directed the filing of the original agreement in Court.

Against the impugned order of the trial Court, dated 12‑7‑1974 the petitioners filed F . A . O. No. 150 of 1974 which was accepted by the Lahore Nigh Court vide its order, dated 19‑3‑1975, solely on the ground that the application under section 20 of the Arbitration Act would not be competent against the Cementation Ground Engineering Limited (Petitioner No. 2 herein) and the learned Judge did not consider it necessary to deal with the other legal objections.

Dissatisfied with the order of the Lahore High Court, dated 19‑3‑1975 the respondent filed an appeal (Civil Appeal No. 38 of 1975) before this Court. The appeal was accepted by this Court vide its judgment, dated 18‑5‑1982. In the course of this judgment, it was observed:

"The learned Senior Civil Judge, by his judgment, dated 12‑7‑1974, decided all the issues against the respondents and directed the filing of the original agreement in Court, dated 1‑10‑1967, as supplemented by the agreement, dated 17‑11‑1969. Both the respondents filed a joint appeal in the Lahore High Court where, apart from certain technical objections, namely, that the agreement on which reliance has been placed was unstamped and, therefore, it could not be acted upon, in view of section 35 of the Act; that Col. Ata Ullah was not proved to have been authorised to institute the application under section 20; that the matter was beyond the territorial jurisdiction of the Civil Court at Lahore and that in any case the discretion under section 20 should not have been exercised in favour of the appellant; it was contended that the agreement, dated 17‑11‑1969 (Exh.P.10) was not between the respondents and the appellant but was between the appellant and an altogether different company, namely, Cementation Ground Engineering Ltd. , which had not been impleaded as a party."

It was further observed that the last mentioned objection found favour with the learned Single Judge of the High Court who accepted the appeal and the order of the learned Senior Civil Judge directing to file in Court the original agreements, dated 1‑10‑1967 and 17‑11‑1969 under section 20 of the Arbitration Act, 1940 was set aside. On this view of the matter, the High Court did not consider it necessary to consider the other technical objections raised by the petitioners herein against the judgment passed by the learned Senior Civil Judge.

This Court, after hearing the learned counsel for the parties, arrived at the conclusion that the finding of the learned High Court that no order could be passed directing the petitioner to file the agreement, dated 17‑11‑1969 was erroneous and could not be sustained. Hence, it set aside the order of the High Court and allowed the appeal vide its judgment, dated 18‑5‑1982.

Mr. Aftab Ahmad Khan, in support of this review petition, has submitted that notwithstanding the above finding of this Court the appeal of the respondent herein could not be allowed in its entirety. According to him, the petitioners herein had raised other objections before the High Court besides the one noticed above but that these objections were not decided, on the view taken by the High Court on the question mentioned above.

He further submits that the observation made in the judgment of this Court that Mr. Aftab Ahmad Khan had pressed only the objection regarding the agreement being unstamped which could not be acted upon in view of section 35 of the Stamp Act is based on some misconception as all the points raised before the High Court required determination and he had not abandoned any point. He points out that F.A.O. No. 150 of 1974 was disposed of by the learned High Court only on one ground i.e. that there was no arbitration agreement between the petitioners and the respondent and that the High Court did not at all decide the other legal questions. The civil appeal filed by the respondent in this Court was directed against the finding of the High Court that the agreement of 17th November, 1969, was not between the petitioners and the respondent and on no other question. There being no appeal before this Court with regard to the other questions of law this Court could only have, after reversing the finding of the High Court with regard to the point decided by it for disposal, remanded the case to the High Court for decision on the other questions of law and facts which were raised in the High Court in

F.A.O. No. 150 of 1974 and not decided by it.

We feel that there is substance in this submission and in not following this course an error was committed which is apparent on the face of the record.

We would, therefore, allow this petition and review our judgment, dated 18‑5‑1982 to the extent that the appeal filed by the respondent directed against the order of the High Court, dated 19‑3‑1975 is allowed, with costs, but the case is remanded to the High Court for determination of the other questions raised before it in

F.A.O. No. 150 of 1974.

Since this is a very old case we would request the High Court to give priority to it and dispose it of within three months, if possible.

M . Y . H . Petition allowed.

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