2000 C L C 1518 https://www.pakistanlawsite.com/Login/PrintCaseLaw?

caseName=2000L373

2000 C L C 1518

[Lahore]

Before Jawwad S. Khawaja, J

MUSHTAQ AHMAD alias MASTAY KHAN

and another‑‑‑Petitioners

versus

AHMAD YAR and 9 others‑‑‑Respondents

Civil Revision No.466‑D of 1999., heard on 19th November, 1999.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Preamble & S.3‑‑‑Law of limitation sets out rules of governance and administration
which have the effect of preventing Court from providing legal redressal of rights
through judicial process even where such rights subsist.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 14 & 17‑‑‑Limitation Act (IX of 1908), Art. l78‑‑‑Award, filing of‑‑
Limitation‑‑‑Award was made in presence of both‑ the parties‑‑‑Period of limitation
had started from the date of knowledge of the award or from the notice given by the
arbitrator under S.14(1), Arbitration Act, 1940‑‑‑Lower Appellate Court dismissed
appeal on the ground that application of the petitioner was barred by time as the same
was filed after period of 90 days as prescribed under Art. 178 of Limitation Act,
1908‑‑‑Validity‑‑‑In order to non‑suit a party on the technical ground of limitation,
procedural and ministerial requirements of a separate written notice, independent of
knowledge of the making of the award, were required‑‑‑Findings of Lower Appellate
Court that period of limitation started from the date when the parties had knowledge of
the making of the award, was based on a legal premise which did not accord with the
wording of Art. 178, Limitation Act, 1908‑‑‑Order of Lower Appellate Court was set
aside, as application under Ss. 14 & 17 of Arbitration Act, 1940 was not barred by
time.

Muhammad Shafi and others v. Muhammad Sabir and others PLD 1960 Lah. 591 fol.

Aish Muhammad Khan Sava for Petitioners. Bashir Ahmed Chaudhry for
Respondents.

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Dates of hearing: 18th and 19th November, 1999.

JUDGMENT

Learned counsel for the petitioners contends that the sole ground on which the
petitioners' appeal was dismissed by the learned Additional District Judge, Pakpattan
Sharif on 19‑5‑1999 is that the petitioners' application under sections 14 and 17 of the
Arbitration Act was time‑barred.

2. I have gone through the impugned order which proceeds on the premise that since
the award in question was made in the presence of the parties and copies of the award
were given to both the parties, they had notice of the making of the award on
21‑4‑1995. On this basis the lower Appellate Court has held that the petitioners'
application under sections 14 and 17 of Arbitration Act which was filed on 23‑10‑1995
was barred by time considering that the period of 90 days allowed for such applications
under Article 178 of the Limitation Act had expired.

3. The starting point of limitation taken by the lower Appellate‑Court is not based on
law. It is clear from the provisions of Article 178 that the period of limitation has to
start from "the date of service of the notice of the making of the award". This provision
has to be read with reference to and in the context of the provisions of section 14(1) of
the Arbitration Act which provides inter alia that the arbitrator "shall give notice in
writing to the parties, of the making and signing" of the award. The words contained in
Article 178 of the Limitation Act and section 14 of the Arbitration Act have a technical
meaning and can only be construed as requiring a separate notice in writing by the
arbitrator notwithstanding the fact that the parties had knowledge of the arbitration
award.

4. It is clear from the statutory provisions referred to above that the period of limitation
is not intended to start from the date on which the parties had knowledge of the award
but is to commence from the date on which a written notice of the making of the award
is given to the parties pursuant to section 14 (11 of the Arbitration Act. Support for this
legal proposition can he derived from the case titled Muhammad Shafi etc.
v..Muhammad Sabir etc. PLD 1960 Lah. 591. ,

5. Learned counsel for the respondents on the other hand made a reference to para. 4 of
the petitioners' application before the trial Court wherein it has been averred that photo
copies of the award had been given to both the parties by the arbitrator on 21‑4‑1995.
On this basis, he contended that the requirements for giving a notice in writing as
envisaged by section 14(1) of the Arbitration Act. and Article 178 of the said Act,
stood complied with. This contention, however, does not take into account the
reasoning given in the case of Muhammad Shafi (supra) which attributes a technical
meaning to the words of the aforesaid .statutes requiring the arbitrator to give a written
notices of the making of the award. It is to be noted that a notice in writing of the
making of the award cannot, for the purposes of Article 178 of the Limitation Act, be
equated with the handing over of copies of award to the parties.

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6. The Law of Limitation sets out rules of governance and administration which have
the effect of preventing a party from hearing legal redressal of rights through judicial
process even where such rights subsist. As a law barring recourse to Court the
Limitation Act needs to be construed strictly. A, proceeding, therefore, should only be
held to be barred by time if the technical rules of the law of limitation are applicable
fully in the strictest sense. I am in respectful agreement with the ratio of Muhammad
Shafi's cask and am, therefore; of the opinion that the procedural and ministerial
requirements of a separate written notice, independent of knowledge of the making of
the award, are requires to be met in order to non‑suit a party on the technical ground of
limitation.

7. In this view of matter, the findings of the learned lower Appellate Court that the
period of limitation in the present case started from 21‑4‑1995 when the parties had
knowledge of the making of the award, is based on a legal premise which does not
accord with the wording of Article 178 of the Limitation Act. I, therefore, hold that the
petitioner' application under sections 14 and 17 of the Arbitration Act was not barred
by time. As a consequence, I would accept this revision petition and remand the case to
the learned Additional District Judge for decision of the appeal on merits

8. Learned counsel for the respondents also raised various other objections to the
award itself and to the maintainability of the application filed by the petitioners before
the trial Court. The learned lower Appellate Court shall consider all arguments which
may be addressed by or on behalf of the parties on the merits of the petitioners'
application while deciding the appeal before him. The lower Appellate Court is
directed to decide the appeal.with in a period of 90 days from the date a copy of this
order is brought to its attention. Since, the parties are represented in this petition, they
are directed to appear before the lower Appellate Court on d‑12‑1999. In these
circumstances, there will no necessity for issuance of fresh process to the parties for
the said date of hearing before the lower Appellate Court.

9. With the above direction, this revision petition is allowed and the case is remanded
to the lower Appellate Court.

Q.M.H./M.A.K./M‑21/L Revision allowed.

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