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P L D 1964 (W. P.) Karachi 66

 

Before Inamullah Khan, J

 

ABDUL QAYUM KHAN‑Applicant

 

Versus

 

M. A. QUDUS KHAN‑Opponent

 

Civil Revision Application No. 176 of 1963, decided on 9th December 1963.

 

Mrs. Keays Byrne v. M. Obaidullah Khan P L D 1959 Lah. 146 rel.

 

S. Hamid Ali for Applicant.

 

S. A. Qadri for Respondent.

 

Date of hearing: 9th December 1963.

 

JUDGMENT

 

This is an application under section 115 of the Civil Procedure Code against the order passed by the Additional District Judge, Karachi dated the 7th January 1962, whereby he set aside the judgment and decree of the Sub‑Judge First Class, Karachi, who had made an award the rule of the Court under section 17 of the Arbitration Act 1940, hereinafter called the Act. The facts briefly put are these.

 

On 27th December 1959, the parties who are real brothers entered into a written agreement to appoint one Maulana Mufti Muhammad Shafi as their sole arbitrator in the matter of family and commercial disputes. The arbitrator gave his award on the 21st August 1960. On 28th February 1961, the applicant Abdul Qayoom made an application under section 14(2) of the Act and prayed that the award be made the rule of the Court. On 29th March 1961, the respondent filed his objection. The learned Sub‑Judge over‑ruled the objections filed by the respondent and made the award the rule of the Court under section 17 of the Act.

 

2. On appeal by the respondent the learned Additional District Judge allowed the appeal on two‑fold grounds, namely :‑

 

(1) that the award was filed beyond the time prescribed under Article 178 of the Limitation Act ;

 

(2) that the learned Sub‑Judge should not have made the award the rule of the Court in view of the failure to file the documents and depositions along with the award.

 

I propose to consider these objections separately.

 

3. It would appear from a perusal of the order of the learned Additional District Judge that he came to the conclusion that the award was filed beyond time as the applicant came to know about the award when it was made, namely, on 21st August 1960. In order to appreciate the point in question it would be useful to reproduce Article 178 of the Limitation Act. It runs as under :‑

 

“Under the Arbitration Act 1940 for the filing in Court of an award

 

90 days

 

The date of service of the notice of the making of the award.”

 

The admitted position is that the arbitrator did not serve any notice of the making of the award on the parties. The question, therefore, would be whether the period of limitation prescribed under Article 178 can be computed from the date when a party has come to know about the award without the service of the notice of the making of the award. I think a distinction must be made between the knowledge of the award which may be through any source and the date of service of the notice of the making of the award. The Limitation Act must be strictly construed. It cannot be construed in a manner which may help a party to avoid a solemn act like an award. In this connection reliance may be placed on the case of Jagdish Mahton and others v. Sundar Mahton and others (A I R 1949 Pat. 393). It was held in that case that under Article 178 of Schedule I of the Limitation Act the period of limitation for an application under section 14(2) is 90 days from the date of service of the notice of the award. This notice must be given by the arbitrator. In the absence of ‘any notice by the arbitrator the period of limitation cannot be computed under Article 178 of the Schedule to the Limitation Act. The learned Additional District Judge relied on the case of Ganga Ram v. Radha Kishan (A I R 1952 Pb. 350), in which it was held that an application under section 14 must be made within 90 days of the day when the applicant comes to know of the existence of the award. With great respect to Khosla J., I am of the opinion that the period of limitation under Article 178 of the Limitation Act cannot be computed from the date of know ledge of the existence of the award but from the date of the service of notice of the making of the award.

 

4. So far as the second ground, namely, that the learned Sub‑Judge acted illegally in making the award the rule of the Court in the absence of the documents and statements being filed in Court, it would be useful to reproduce sub‑clause 2 of section 14 of the Act. It runs as under :‑

 

“The arbitrators or umpire shall, at the request of any party to the arbitration agreement or any person claiming under such party or if so directed by the Court and upon payment of the fees and charges of filing the award, cause the award or a signed copy of it, together with any depositions and documents which may have been taken and proved before them, to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award.”

 

It would appear from the above provision, in the first place, that the non‑compliance of the filing of the deposition and documents C would be mere irregularity but would not vitiate the award. In this connection reference may be made to a Division Bench ruling of this Court S. M. Fazail & Co. v. Messrs Overseas Cotton Co. (P L D 1959 Kar. 320). It was held in that case that the mere fact that an arbi trator had omitted to file along with his award the depositions of the witnesses examined by him or the documentary evidence filed before him would not justify a Court in holding that the award on that ground is invalid. In the second place, sub‑clause 2 of section 14 of the Act, strictly speaking, would apply only where the arbitrator was called upon to file the award. It is doubtful whether it would apply to a case where a party to an award files an award. It may also be pointed out that the filing of the award by the party would not deprive the Court to act under section 17 of the Act. In this connection I would respectfully rely on the observation made by Wahiduddin, J., in the case of Mrs. Keays Byrne v. M. Obaidullah Khan (P L D 1959 Lab. 146). He observed that section 17 deals with cases where the award has come before the Court 9n one way or the other, and if once an award has come before the Court the Court has got jurisdiction to pass a decree thereon.

 

9. The learned Additional District Judge has set aside the decree of the learned Sub‑Judge only on two‑fold grounds which I have already disposed of. On other objections of the opposite party the learned Additional District Judge found in favour of the applicant.

 

6. I would, for the reasons given above, allow the Revi sion but would make no order as to costs in the circumstances of the case.

 

S. Q./R. B. A. Revision allowed.

 

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