2024 S C M R 344
[Supreme Court of Pakistan]
Present: Ijaz Ul Ahsan, Munib Akhtar and Shahid Waheed, JJ
Haji SHINKAI---Appellant
Versus
ABDUL SHAKOOR and others---Respondents
Civil Appeal No. 23-Q of 2017, decided on 19th October, 2023.
(On appeal against the judgment dated 11.09.2017 passed by the High Court of Balochistan, Quetta in Regular First Appeal No.47 of 2012)
(a) Arbitration Act (X of 1940)---
----Ss. 31, 32 & 33---Suit for enforcing an award under section 32 of the Arbitration Act, 1940---Not maintainable---Plaintiff claimed that the dispute regarding recovery of Rs.3,800,000 from the defendants was referred to arbitration, and as a result, an award was made declaring that the defendants, for the liquidation of their liability, would give their two acres of land to the plaintiff---Plaintiff further claimed that though he was given possession of the land under the award, the mutation was not recorded in the revenue records---Based on these facts, he wanted the Court to declare him to be the owner of the land---In sum, it is clear that the plaintiff's suit was, for all intents and purposes, to enforce the award---Defendants, on the other hand, denied the arbitration agreement and maintained that the award was invalid and inoperative---Upon these pleadings, it is manifest that the instant suit raised the question as to the existence, effect or validity of the award and such a suit is expressly prohibited by section 32 of the Arbitration Act, 1940---If the plaintiff wanted to enforce the award, the proper procedure for him would have been first to get the award to be made a rule of the Court and then to enforce or execute the decree which might be passed on the basis of the award---Plaintiff could not resort to the procedure of filing a separate suit in disregard of the special procedure provided in the Arbitration Act, 1940---During the trial, a Commission was issued to an Advocate to inspect the suit land and to submit a report as to whether the land mentioned in the award and the land stated in the plaint were the same---On inspection, the Commission found the two lands to be different---None of the parties challenged the report of the Local Commission---In the context of the report of the Local Commission, the oral evidence adduced by the plaintiff regarding the handing over of the possession of the defendants' land became highly doubtful---Plaintiff should have produced a relevant revenue record or a revenue officer to establish that the defendants voluntarily acting upon the award had handed over the possession of their land to him, but he did not do so---Appeal filed by plaintiff was dismissed.
Moolchand Jothajee v. Rashid Jamshed Sons AIR 1946 Madras 346; M. Gulamali Abulhussein & Co. v. Vishwambharlal AIR 1949 Bombay 158; Ramchander Singh and 4 others v. Munshi Mian AIR 1950 Patna 48; Kanhyalal Vishweshwarlal Mahjan v. Ramchandra Shankarrao Holkar AIR 1959 Madhya Pradesh 415; Abdur Rehman v. Hamid Khan 1988 SCMR 1146 and Awan Industries v. Executive Engineer, Lined Channel Div. 1992 SCMR 65 ref.
(b) Arbitration Act (X of 1940)---
----S. 32---Bar to suits contesting arbitration agreement or award---Expression "effect of the award" employed in section 32 of the Arbitration Act, 1940---Connotation---Said expression is wide enough to cover a suit for enforcement of an award.
Narbadabai and others v. Natverlal Chunilal Bhalakia AIR 1953 Bombay 386 and Abdul Karim v. Bashir Ahmad PLD 1967 Lah. 365 ref.
(c) Specific Relief Act (I of 1877)---
----Ss. 42 & 55---Suit for declaration and permanent injunction in respect of immoveable property---Incompetent suit---Relief---Scope---Whether, in an incompetent suit, relief could be moulded, and the plaintiff could be awarded that relief which he did not even pray, and in which he was not interested---Held, that the High Court found the suit filed by the plaintiff to be incompetent, but taking into account the admission made by defendant in his written statement that he had only obtained a loan of Rs.2,200,000 from the plaintiff, modified the decree of the Trial Court and held that the plaintiff was entitled to the recovery of the amount from defendant, subject to deposit of court fee within one month---Plaintiff neither sought this relief in his plaint nor was it the subject matter of the relevant framed issue, which was to the effect "whether the plaintiff is entitled to the relief claimed for?"---So, it could not be granted, particularly when it was found that the suit was not maintainable---Furthermore the plaintiff's counsel was asked whether the plaintiff, in compliance with the judgment of the High Court, had provided the Court fee within time, to which he replied in the negative and said that the plaintiff was not interested in the recovery of the amount---In such a situation, the modification in relief made by the High Court was not justified---Appeal filed by plaintiff was dismissed.
Shams-ud-Din Achakzai, Advocate Supreme Court for Appellant.
Kamran Murtaza, Senior Advocate Supreme Court (via video link from Quetta) for Respondent No. 1.
Ex parte Respondents Nos.2 to 9.
Comments
Post a Comment