5/10/25, 5:56 PM Tourism Development Corporation of Punjab, Ltd.
ab, Ltd., Lahore through its Managing Director vs Moderate Builders, Engineers and …
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Court Name: Lahore High Court
Judge(s): Sayed Zahid Hussain
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Tourism Development Corporation of Punjab, Ltd., Lahore through its
Title: Managing Director vs Moderate Builders, Engineers and Contractors,
Lahore through Tariq Sultan its Managing Partner
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Case No.:
Date of Judgment:
Reported As:
F.A.O. No.91 of 1998
2005-02-23
2005 C.L.R. 1092
Result: Case Remanded
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Judgment
JUDGMENT
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SAYED ZAHID HUSSAIN, J.--- In the suit for recovery instituted by the respondent, the parties agreed
for the resolution of the dispute through arbitration and made a statement to that effect before the
Civil Court. Accordingly as per proceedings of the Court dated 4.2.1996, Muhammad Miskeen
Shahbaz was appointed as sole-arbitrator in the matter. The said arbitrator filed his award before
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the Court on 18.11.1996 and the case was adjourned to 9.12.1996 for objections thereto. Due to public
holiday on the adjourned date, the matter was taken-up on 10.12.1996 by the Trial Court when it was
adjourned to 4.1.1997 for the same purpose. When the matter came-up before the Court on 4.1.1997,
it was noted that the objections had been filed on 19.12.1996. A number of objections had been
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raised qua the legality and validity of the award dated 30.10.1996. An application under Section 5 of
the Limitation Act, 1908, was also filed later on by the appellant that the delay of one day in filing
the objections was due to misunderstanding and that if the said delay was not condoned, the
appellant would suffer irreparable loss. The Trial Court has vide order dated 3.4.1998 taken the view
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that the objections to the award were filed after the period of 30 days and that since provisions of
Section 5 of Limitation Act, 1908 are not applicable, the delay could not be condoned. This is appeal
under Section 39 of the Arbitration Act, 1940 thereagainst.
2. The learned counsel for the parties have been heard. The principal contention of the learned
counsel for the appellant is that since the Trial Court had fixed the date of 4.1.1997 for filing of
objections, the objections filed on 19.12.1996 could not be regarded beyond limitation. He has
placed reliance upon Col. (Retd.) Muhamma Aslam v. Haji Muhammad Shafi and another (PLD 1993
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5/10/25, 5:56 PM Tourism Development Corporation of Punjab, Ltd., Lahore through its Managing Director vs Moderate Builders, Engineers and …
Lah. 11) in support of his contention that where the Court itself had fixed the date for that purpose,
the appellant could not be made to suffer for not filing of objections within 30 days. It is further
contended that several objections which had been raised to the legality and validity of the award ,
have been rejected summarily without framing issues and affording opportunity of producing
evidence in support thereof. According to him the award was illegal and invalid which could not be
made rule of the Court.
3. The learned counsel for the respondent on the other hand supports the order passed by the
learned Trial Court and contends that Section 5 of the Limitation Act, being not applicable, the
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delay of even one day could not be condoned by the Court and the objections have rightly been
rejected by the learned Trial Judge. It is contended that the award given by the arbitrator who had
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been appointed by mutual agreement of the parties, could not be challenged by the appellant by
raising objections thereto. He has referred to The Thal Development Authority v. Nisar Ahmad
Qureshi (PLD 1962 (WP.) Lah. 830), Lahore Development Authority v. Messrs Khalid Javed and Co.
(1983 SCMR 718), Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another (1985 SCMR 597)
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and Messrs Jame's Construction Company (Pvt.) Limited Lahore through Executive Director and
others v. Province of the Punjab through Secretary to the Government of the Punjab
(Communication and Works) Department, Punjab, Lahore (2000 SCMR 1010). It is stated that the
claim of the respondent had even been acknowledged by the appellant during the pendency of
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the matter before the Court. But such an assertion is being disputed by the learned counsel for the
appellant.
4. The respective contention of the learned counsel for the parties have been considered. As has
been mentioned above, the award was filed before the Court on 18.11.1996, and the Court firstly
adjourned the case to 9.12.1996 and then to 4.1.1997 for filing of objections. The objections were
however filed on 19.12.1996 before the date fixed by the Court i.e. 4.1.1997. If the limitation Is reckoned
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from the date of filing award on 18.11.1996, the objections were delayed by one day. However, a
justification is sought to be advanced that since the Court had fixed the date for that purpose as
4.1.1997, it was act of the Court for which the appellant could not be made to suffer who could have
filed objection in view of the order of the Court any time by or before 4.1.1997. Reliance is placed for
that purpose upon Col. (Reid.) Muhammad Aslam (supra) (PLD 1993 Lah. 11), wherein it was
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observed that "if the objections are filed on or before the date on which the Court directs the
objections to be filed, they shall be deemed to be within time as no body can suffer due to act of
the Court." Somewhat similar view was taken in Union of India v. M/s. Builders Union (AIR 1981 Orissa
188). At this juncture it may be mentioned that a provision of identical nature i.e. Section 24 of Pre-
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emption Act, 1991 fixing a period of 30 days for making deposit of 1/3rd of the sale price in a pre-
emption suit had come-up for consideration in number of cases. In Jamshaid Ali and 2 others v.
Ghulam Hassan (1995 CLC 957), despite the fact that the provisions of Section 24 of Act IX of 1991
being mandatory in nature benefit of maxim "Actus curiae neminem gravabif' that no one should
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be penalized or made to suffer for any act or omission of the Court, was given to the party. The said
judgment was upheld and approved by the Hon'ble Supreme Court of Pakistan in Ghulam Hassan v
Jamshaid Ali and others (2001 SCMR 1001). Similar was the view taken in Riaz Ahmad v. Additional
District Judge, Sargodha and another (PLJ 1999 Lah. 992), Muhammad
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llyas and 4 others v. Munshi Khan (2003 CLC 1815) and Mst. Said Bibi v. Additional District Judge,
Bahwalpur and 5 others (2005 CLC 375). The Full Bench of this Court in Mian Muhammad Lutfi v.
Mian Muhammad Talha Adil (NLR 2000 Civil 422) had also taken such a view despite that the said
provision, laid emphasis that "such period shall not extend beyond 30 days of the filing of the suit."
In that case the Trial Court fixed the date for that purpose overrunning the period of 30 days, the
question arose as to the effect of such an order which was violative of the provisions of Section 24
of the Act and whether the litigant should suffer for that. The answer recorded by the Full Bench
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5/10/25, 5:56 PM Tourism Development Corporation of Punjab, Ltd., Lahore through its Managing Director vs Moderate Builders, Engineers and …
was that since it was an order/act of the Court, the party should not be made to suffer for that and
.That if the Curt passed the order un-mindful of the requirements of Section 24 of the Act, whereby
the party was misled, he cannot be blamed and made to suffer. The ratio thereof is applicable to
the present case. In the instant case the order for filing of objections till 4.1.1997, was passed by-
passing and overlooking the provisions of Article 158 of the Limitation. Act, 1908. The objections were
filed much before the date fixed i.e. 4.1.1997, which could not be treated out of limitation in view of
the principle discussed above, which gets attracted to such a situation.
5. The proceedings taken by the Trial Court after the filing of the award and even the perusal of the
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order impugned, shows that neither issues were framed by the Trial Court in order to decide the
objections nor the evidence was recorded. In Pakistan through General Manager, Pakistan Railways
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v. Messrs Q.M.R. Expert Consultants (PLO 1990 Supreme Court 800), it was observed that "under
Section 17 of the Act, it is the duty of the Court to examine, whether there was any reason for
modifying of the award or for setting aside the award notwithstanding that an affected party may
have failed to file objections to the award on account of the expiry of the limitation period or the
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parties to the arbitration proceedings may be in collusion and because of that, they may not file
any objection to a collusive award ". It was further observed that even the Court could suo motu set
aside the award if the dictates of justice so demanded. In the precedent case, the High Court had
set.Aside the order passed by the Thai Court and remanded the matter to decide it in accordance
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with law which was maintained by the Hon'ble Supreme Court. In Muhammad Akbar v. The Province
of the Punjab through Divisional Forest Officer, Gujranwala (1985 SCMR 116), the High Court had
remanded the case to the Trial Court with a view "to decide the application submitted before it
under Section 14 of the Arbitration Act after giving the said respondent (who was the appellant
before him) an opportunity to produce evidence, if any, in support of its objections and also a
similar opportunity of rebuttal to the petitioner herein (who was the respondent before him)." The
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petition against such an order was dismissed by the learned Supreme Court. In Muhammad Tayab
v. Akbar Hussain (1995 SCMR 73), also a similar approach was adopted and it was observed that
"the learned Single Judge in the High Court should not have refused to .Go into the merits of the
case on the around that objections' were filed beyond stipulated time particularly in view of the
plea taken by the appellant that he was not served with notice in the arbitration proceedings. We,
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therefore, set aside the impugned judgment in High Court appeal and also impugned order of the
learned Single Judge making a ward ruleCourt and demand the case to learned Single Judge in
the High Court to examine the record f the arbitration proceedings to find out whether the plea
taken by the appellant about non-service of notice is justified or not." In Muhammad lqbal v. Riaz
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Sabir (1984 CLC 2375), by taking similar view a learned Division Bench remanded the case to the
Trial Court. In 1 Punjab Province 2. Executive Engineer, Sulemanki Headworks, Okara v. M/s. Chauhan
and Company (NLR 2000 Civil 174), it was held that the objections to award whereby the validity
thereof was questioned could not be decided without framing issues and recording evidence and
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the matter was remanded to the Trial Court for decision of the objections afresh. The order of the
Trial Court in the instant case is contrary to law on this count as well.
6. The contention of the learned counsel for the respondent that award given by an arbitrator
chosen by the parties themselves should be given due regard and should be accepted by the
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parties need to be commented this much only, that since the law permits a party to file objections
to the award it becomes the duty of the Court to decide the same in accordance with law before
making award as the rule of the Curt. The underlying idea and object of having resort to arbitral
forum for resolution of disputes cannot be disputed, yet the law i.e. Arbitration Act, 1940 contains a
procedure to be followed and a duty to be performed by the Court. In the instant case number of
objections were raised by the appellant to the validity of the award which required to be
considered and decided in the light of the evidence that would have been produced by the
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5/10/25, 5:56 PM Tourism Development Corporation of Punjab, Ltd., Lahore through its Managing Director vs Moderate Builders, Engineers and …
appellant, which opportunity, however, was not made available as no issues were even framed in
the matter. The order impugned, therefore, is not sustainable and is set aside. As a result, the
objection petition filed by the appellant to the award will be deemed pending and will be decided
by the Court after framing necessary issues and affording equal opportunity of producing
evidence to the both the parties. Let the parties cause their presence/representation before the
Trial Court on 26.3.2005. It is hoped that the Trial Court would proceed in the matter expeditiously
and decide the same before the commencement of summer vacations of year 2005. No order as
to costs.
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Disclaimer: While every effort has been made to ensure the accuracy and currency, we do not guarantee completeness, correctness, or
applicability to specific cases of court judgments available on this website. The court judgment may be subject to updates, modifications, or
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revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and
accurate information.
The court judgments available on this website are not official publications of the Government of Pakistan. It may not reflect the most recent or
authoritative version of the judgment. For official and legally binding versions, please refer to the official sources/authorized
publications/certified copies of court orders.
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The use of the documents available on this website is at your own risk. We shall not be held liable for any loss, damage, or inconvenience arising
from the use or reliance on the information contained in the data. We disclaim any responsibility for errors, omissions, or inaccuracies in the court
judgment or any consequences resulting from its use.
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