SUPREME COURT OF PAKISTAN
Civil Petition for Special Leave to Appeal No. 23-D of 1970
Decided On: 19.06.1970
Appellants: Province of East Pakistan
Vs.
Respondent: Messrs M. Ahmad & Sons and 2 Others
**Hon’ble Judges:**Hamoodur Rahman, C.J. and M.R. Khan, J.
Counsels:
For Appellant/Petitioner/Plaintiff: S.A. Chowdhury, Advocate Supreme Court instructed by A.S.M. Shamsuzzaman, Advocate-on-Record
For Respondents/Defendant: A.M. Abdullah, Senior Advocate Supreme Court instructed by S.S. Hoda, Advocate-on-Record
Prior History:
On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 22nd October 1969, passed in Civil Revision No. 439 of 1968
JUDGMENT
Hamoodur Rahman, C.J.
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This is a petition for special leave to appeal on behalf of the Province of East Pakistan from a judgment of a Division Bench of the High Court of East Pakistan in a revisional application under section 115 of the Code of Civil Procedure. The said revisional application was filed to call in question an order of the Subordinate, Judge, Third Court, Dacca, made in an application filed by the respondents herein under sections 11 and 12 of the arbitration Act praying for the removal of the named arbitrator and appointment of another in his place.
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The respondents, who are contractors, executed some works in the Eden Buildings, Dacca. A dispute arose sometime in October 1965, with regard to the payment of some of their bills. The Executive Engineer raised various objections as to the work carried out by the respondents, held up the payment of one of their bills and ultimately cancelled the same. A new bill was prepared by the Executive Engineer reducing the amount. The respondents accepted payment of the new bill under protest and brought the matter to the notice of the Superintending Engineer who was also the named arbitrator under the contract. The latter, after looking into the matter, directed the Executive Engineer to settle the differences and to pay the respondents their legitimate dues. This direction was not only not carried out but payment of subsequent bills was also held up.
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In these circumstances, the respondents filed an application before the Superintending Engineer on the 22nd of December 1966, calling upon him to arbitrate in the dispute in terms of clause 25 of the contract. No action was taken by the Superintending Engineer on this application, in spite of repeated reminders. The respondents, therefore, in June 1967 applied to the Court under sections 11 and 12 of the arbitration Act for removal of the arbitrator and appointment of another arbitrator. This application was contested by the petitioner on the ground that the named arbitrator had already decided the dispute and made his award on the 22nd of June 1966. The trial Court did not accept this plea but even so dismissed the application of the respondents and directed the Superintending Engineer, the named arbitrator in the contract, to make an award, if not already made, with notice to the parties according to the provisions of the arbitration Act, 1940, with intimation to the Court.
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Against this order the respondents went up to the High Court in revision. The latter took the view that the story of the petitioner that an award had already been made was clearly untenable and, therefore, the Subordinate Court had acted wrongly in refusing to allow the application of the respondents. The order of the Subordinate Court was, accordingly, set aside, the named arbitrator was removed and the case was sent back to the Subordinate Court to appoint some other persons as the arbitrator.
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The petitioner-Government now seeks special leave to appeal and it is strenuously contended on its behalf that the application under sections 11 and 12 of the arbitration Act was rightly rejected by the trial Court, as the same was not maintainable. It is contended that the application should have been made under section 8 and not under section 11. We are not impressed by this contention. On a plain reading of section 11 we are satisfied that the application that was made before the learned Subordinate Judge was maintainable under section 11. In any event, this point cannot be taken at this stage, since it was not taken in any of the Courts below.
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On merits also, we are of the view that we should not interfere, as an arbitrator has since been appointed by the trial Court and he has entered upon the reference without any objection from the petitioner-Government, which has taken no steps so far to have that order of the trial Court set aside. This matter has, therefore, now become purely of academic interest. If the arbitrator appointed misconducts himself, the petitioner will have his remedies under the arbitration Act. This petition is, accordingly, dismissed.
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