Find a Lawyer

Civil Miscellaneous Applications Nos. 1448 and 3926 of 1984 in Suit No. 394 of 1976,

decided on 20th January, 1985.

‑‑‑S. 151 tt 0. XLVII, R. 1‑‑Inherent.powers‑‑Review‑‑Inherent powers of Court, held, could not be resorted to after order of Court sought to be reviewed attained finality for failure of party to file any appeal against it within time.

‑‑‑0. XLVII, R. 1‑‑Arbitration Act (X of 1940) S. 11‑‑Review‑ Defendant filing application for review of judgment of Court passed in application filed by it under S.11, Arbitration Act for revoking authority of umpire‑‑Application after thought, was frivolous, vexatious and not tenable in law and was not even pressed by counsel for Department who was properly appointed and owed duty not only to department but to Court as well‑‑No error appeared on face of record and resort to provisions of 0. XLVII, R. 1, C.P.C. was not warranted‑

A . K . Lakhan for Plaintiffs.

S.A. Farooqui and Abul Khair Ansari for Defendants.

I have heard the learned Advocates.

1 Perusal of the letters produced by Mr. Farooqui and Mr. Abul Khan Ansarr, Advocates go to show that both of them were appointed as Advocates on behalf of the defendant No. 1. The witness (Abdul majeed i examined in the Court today is an Accounts Clerk in the Sind P . W . D He admitted that though he wanted to make a request for adjournment on the ground that Mr. S.A. Farooqi, Advocate was ill but did not do so as Mr. Ansari, Advocate appeared and informed him that he would conduct the case. The witness conceded that he did not a Mr Ansari, Advocate to make a request for adjournment on the ground that Mr. Farooqui was ill. It is also evident from the statement of the said witness, that he did not object to the appearance of Mr. Ansari as Advocate for the Department.

2. Perusal of the record also shows that by the order, dated 2.s‑5‑1982 passed on the application (C.M.A. No. 611 of 1982), this Court (Mr. Justice Saleem Akhtar) appointed Mr. Justice (Retd.) Dorab patel as the umpire.

3. (i) The authority of the above named umpire appointed by the Court, mentioned above, was sought to be revoked by the application (Civil Miscellaneous‑ Application 3332 of 1983) filed on 1‑10‑1983 under sections 11 and 12 of the Arbitration Act, 1940 on the ground inter alia that on 2.;‑s‑1982, when the order was passed "none was present to apprise the Court regarding the opposition to the application on behalf of the defendants".

It was also contended in the above mentioned application that the appointment of arbitrators and/or umpire are to be held and conducted in accordance with the clause of the Agreement and that application had been moved under instructions of the Administrative Department.

(ii) The above application came up for hearing on 25‑3‑1984, when Mr. Abul Khair Ansari, Advocate for the Department frankly stated before the Court that in view of the fact that the application Civil Miscellaneous Application 3332 of 1983 was filed after a period of more than 11 year for revoking the authority of Mr. Justice (Retd. ) Dorab Patel, a former Judge of the Hon'ble Supreme Court of Pakistan, was not maintainable and thus not pressed by him.

4. A controversy then was raised by moving an application under section 151, C.P.C. read with Order XLVII, Rule 1, C.P.C. filed on 12‑4‑1984 on behalf of the defendant/ Department through their advocate Mr. S.A. Farooqui that Mr. Ansari, Advocate had not been appointed in the case represent it, and that the Department issued specific instructions to make the application for the recalling of the order, dated 25‑3‑1984 and restoration of Civil Miscellaneous Application 3332/83.

5. I heard Mr. S.A. Farooqui as well as Mr. Abul Khair Ansari. After going through the correspondence produced by them I am satisfied that Mr. Abul Khair Ansari was a properly appointed Advocate by the A Department when he appeared in the Court on 25‑3‑1984 and made the statement whereby he did not press the application Civil Miscellaneous Application 3332 of 1984 which is now sought to be restored.

I may also observe here that Mr. Abul Khair Ansari, Advocate rightly conceded that the said application (Civil Miscellaneous Application 3332 of 1984) was not maintainable and thus not pressed which act of his saved the Department from costs with which it could have been saddled.

I would like to add that the application (Civil Miscellaneous; Application 3332 of 1984) which Mr. Abul Khair Ansari did not press‑, was a frivolous and vexatious application and not tenable in law. Mj, Justice (Retd.) Dorab Patel was appointed as the umpire by an order of the Court against which order the Department did not file any appeal. It had earlier also not cared to send its representative on the date of hearing to oppose the application on which the order was passed by the Court appointing the abovenamed learned umpire.

It is obvious that the belated application (Civil Miscellaneous Application 3332 of 1984) was filed on 1‑10‑1983 due to after thought after a lapse of almost 11 year subsequent to the passing of the order on 23‑5‑1982.

It would not be out of place to mention that the application (Civil Miscellaneous Application 3332 of 1983) was misconceived as neither the provisions of section 11 nor of section 12 of the Arbitration Act, 1940 could be invoked for revoking the authority of the said learned umpire (appointed by the Court). Under section 11 of the Court on an application of any party to the reference may remove an arbitrator or umpire who fails to use all reasonable despatch in entering on and proceeding with the reference and making award or if he has misconducted himself or the proceedings.

It is obvious that none of these conditions existed in the present case to warrant the removal of the umpire.

As regards section 12, it would suffice to state that it confers power upon the Court to fill the vacancy where it removes an umpire or an arbitrator, as the case may be. Reliance on this section, in the circumstances, was irrelevant.

6. For the above reasons I am satisfied that Mr. Abul Khair Ansari, Advocate acted in the best interest of the Department and also acted fairly in performance of his duty as a responsible advocate owing duty) not only to the Department but also to the Court.

7. The present application (C.M.A. 1448 of 1984) is neither, maintainable under section 151, C.P.C. nor under Order XLVII, Rule 1, C.P.C. The inherent powers of the Court cannot be resorted to after the order, dated 23‑5‑1982 attained finality for failure of the E Department to file any appeal against it within time. There being no error apparent on the face of the record, the provisions of Order XLVI I , Rule 1, C . P . C . also cannot be resorted to.

8. The upshot of the above discussion is that application (C . M . A . 1448 of 1984) is dismissed.

Taking a lenient view am not passing any order for costs against the defendants.

M.Y.H./5093/K Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.