Find a Lawyer

Civil Miscellaneous Appeal No.3 of 1982, decided on 11th November, 1986.

‑‑‑S. 96 & 0. XLI, Rr. 1 & 33‑‑Arbitration Act (X of 19400, S.39‑ Specific Relief Act (I of 1877), S. 42‑‑Award challenged through civil suit‑‑Trial Court's finding that award was illegal and without jurisdiction challenged in appeal‑‑Appeal admitted for regular hearing but subsequently admission order re‑called by Court‑‑Memo of appeal returned to appellant‑‑Appeal filed in High Court against such order‑ Appeal, held, would be deemed for all practical purposes to be an appeal under S. 96, Civil Procedure Code, 1908.

‑‑‑S. 33‑‑Validity of award, challenge to‑‑Validity of award, held, could only be challenged in accordance with provisions of Arbitra on Act, 1940 and not through a Civil suit.

‑‑‑S. 33‑‑Specific Relief Act (I of 1877), S. 42‑‑Declaratory suit challenging validity of award‑‑Competency of‑‑Such suit filed to challenge award before same was made rule of Court, held, was not only premature but also misconceived in law‑‑Such suit would not be maintainable in view of provisions of Arbitration Act, 1940.

A. Wali Makhdoom for Appellants.

Khurshid Alam Khan for Respondent.

Date of hearing: 11th November, 1986.

This case has been registered as Miscellaneous Appeal under section 39 of the Arbitration Act. However, after hearing at the learned counsel for the parties, it is clear that it has been wrongly registered as Miscellaneous Appeal under section 39 of the Arbitration Act. It is an admitted position that the respondent instituted Civil Suit No.96 of 1980 in which he sought declaration and permanent injunction. The declaration sought in the suit was to the effect that the award was illegal and without jurisdiction and a consequential relief was also claimed against the appellants restraining them from giving affect to the award. The suit was decreed by the trial Court. Against the judgment and decree of trial Court the appellant submitted appeal under section 96,C.P.C. before the District Judge, Thatta, which was admitted to regular hearing on 21‑9‑1981 but before notice could be issued, the learned District Judge re‑called the‑ admission order as he was of the view that the subject‑matter of appeal exceeded Rs.50,000 and accordingly the memo. of appeal was returned to appellant for presentation to this Court. In pursuance of the above order of the learned District Judge, the appeal was filed in this Court and, therefore, for all practical purposes, it is an appeal tinder section 96, C.P.C. The admitted facts of the case are that an ex parte award was given by the arbitrator in respect of a contract executed by the respondent. It is also an admitted position that on the basis of the said award and before it was made rule of the Court in proper proceedings the appellant sought to recover the amount mentioned in the award against the respondent, whereupon he instituted the above suit. seeking declaration that the award is nullity in the eyes of law and that appellant be restrained from recovering any amount under the Award. This suit was decreed by the trial Court on contest, Mr. Walt Makhdoom, the Darned counsel for the appellant contends that the decree and judgment of the trial Court is not sustainable in law, as the civil suit challenging the validity of award was not maintainable. The learned counsel for the respondent, on the other hand, contended that the necessity for filing of above suit arose as the appellant were seeking to recover the amount under the Award before it could be made rule of the Court. While it is true that the award cannot be executed unless it is made rule of the Court, but this reason is not sufficient for maintaining a civil suit for challenging the validity of award. The validity of an award can only be challenged in accordance with they provisions of the Arbitration Act. In the present case, before the award was filed in the Court and made rule of the Court the respondent instituted the Civil Suit which was not only premature but was also misconceived in law. The suit was clearly not maintainable in view of the provisions contained in the Arbitration Act. I accordingly accept this appeal, set aside the order of the trial Court but leave the parties to bear their respective costs in the circumstances of the case.

H. B. T. /5133/K Appeal accepted.

Find a Lawyer Near You

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