PLJ
2004
Present: Cn. ijaz ahmad, J; RAVI GLASS MILLS LTD., LAHORE-Petitioner
versus I.C.I.
C.R. No. 1141 of 2003. dismissed on 26.4.2004. (i) Arbitration Act, 1940 (X of 1940)--
—-Ss. 2 (c), 13(1) to (4), 14(2) & 17 Civil Procedure Code, 1908, Ss. 115, 21, O. 7, R. 10 Revision--Award announced by Arbitrator at Karachi-Application to make award Rule of Court moved before Senior Civil Judge at Lahore—Objection relating to jurisdiction and application under O. 7, R. 10 CPC dismissed-Validity-Both parties were residing at Lahore, therefore, no prejudice was caused to petitioner, therefore, application filed by petitioner before trial Court was rightly dismissed by trial Court in view of parameters prescribed by legislature in its wisdom in S. 21 of CPC-Petitioner had already filed civil suit against respondent in Civil Court at Lahore, therefore petitioner was debarred to agitate matter before trial Court by filing application under O. 7, R. 10 CPC on well known principle of appropriate and reprobate, waiver and estoppel-More Courts than one have jurisdiction to try suit there was nothing in violation to public policy in agreement executed between parties to extent that dispute between them would be tried at one place out of these-If Courts of one place do not have jurisdiction under ordinary law, provision in contract that such Court alone shall have jurisdiction was void because jurisdiction cannot be conferred by consent of parties—Held : Award has been filed by arbitrator, therefore, petitioner is debarred to take objection of territorial jurisdiction in view of Section 31-Held further : Each and every case is to be decided on its own peculiar circumstances and facts and every judgment must be read as application to peculiar facts proved or assumed to be proved-Petition without merit according dismissed.
[Pp. 1825. 1826 & 1827] D, E, G & I (ii) Administration
of Justicc
-—Court may exercise its discretion to avoided injustice or inequity. [P. 1827]
(iii) Administration of Justice--
-—Friction of cause of action will be part of cause of action arid confers jurisdiction on a Court within territorial jurisdiction of little occurs.
[P. 1825] B (iv) Administration of Justice—
—Suit can be filed where wrong committed or part of cause of action
accrued, [P. 1825] C
(v) Contract Act, 1872 (IX of 1872)--
—S. 28--Where two Couits have jurisdiction to take cognizance of matter under ordinaiy law, an agreement that will be tried by one Court only is valid and does not contrary to Section 28 of Contract Act. [P. 1826] H
(vi) Interpretation of Law—
—Agreement executed between
parties in violation of substantive law is
void-Under law no man exclude himself from protection of Courts by
contract. [P. 1826] F
(vii) Words & Phrases--
—"Doctrine of forum non-convenience" is also defined Black's Law Dictionary Sixth Edition, which means power of Court to decline jurisdiction when convenience of parties and ends of justice would be better served if actions were brought and tried in another forum.
[P. 1824] A
AIR 1965 Masoor 316;
AIR 1931
1693; PLJ 2001 SC 377; PLD 1971 SC 376: AIR 1968 Raj. 89: AIR 1967 AWR
380; PLD 1973 SC 236 & 1989 MLD 2010.
Mr. Muhammad Irshad. Advocate for Petitioner.
Mr. Uzair Karamat Bhandan. Advocate fur Respondent.
Date of hearing : 26.4.2004.
order
The brief facts out
of which the present revision petition arises are that an agreement was
executed between the parties on 17.2.1999, which contained Clause 18.3. The dispute
arose between the parties. The competent authority under the aforesaid clause appointed
arbitrator namely Mr. Justice (R) Nasir Aslam Zahid on 29.1.2001. The arbitrator has conducted the proceedings at
2.. The learned
counsel of the petitioner submits that the competent authority has
appointed arbitrator at,
Standard Insurance Co. us. Pak Garments Ltd. <1998 SCMR 1239). Hakam Singh vs.
Gammon (
State Life Insurance
Corporation of
Muhammad Asghar us. Shah Muhammad Awan (PLD 1986 S.C. 542).
Messrs Kadir Motors us. Messrs National Motors Liu. (1992 SCMR 1174).
Bankers Equity Limited vs. Apex Fabrics Limited (2001 YLR 1213).
M/s. E.F.U. General Insurance Limited us, Fahimul Haq (1997 CLC 1441).
Balsukh Refractories and Ceramics Ltd.. us. Hindustan Steel Ltd. and others (AIR 1977 Calcutta 20).
3. The learned
counsel of the respondent submits that respondent has filed application
before the Senior Civil Judge,
Vissamseth Chandra Narasimham us. M/s Ramdaya Rameswaralal. (AIR 1966 A.P. 134).
M/s. Gulati Construction Co.
Raman Larnba us. DM. Harish (AIR 1991 Bom. 311). Patel Bros us Vadilai Kahidas i. AIR 1959
Kumua i/j Fertilizer Corp of
RSDV Finance Co. Vs. Shree Vallabh Glass Works (AIR 1993 S.C. 2094).
Rqjaram Maize Products vs. M.P. Electricity Board (AIR 1999 MP
44).
Kadir Motors vs. National Motors (1992 Sf MR 1174).
Ghulam Nabi vs. Mirza IqbaU1994 SCMR 1893).
State vs. Paras Nath (AIR 1979 Pat. 1961.
Rarnkirpal Sharma vs. Uol (AIR 1986 Cal. 80).
Guru Nanak Foundation vs. Rattan Sindh (AIR 1981 S.C 2075).
Hokum Raj Sayan Raj Kumbat vs. E'l Dorado Guarantee (2002) 2 Arb LR 119 (
Ibrahim vs. Muhammad Hussam (PLD 1975 S.C. 457).
He further submits that by consent of the parties in view of
Clause 18.3, the Court of Senior Civil
Judge,
Order 7, Rule 10 C.P.C. on the principle of
approbate and reprobate. He further submits that petitioner has participated in the
proceedings as the application filed by the arbitrator, therefore. Senior Civil Judge,
4, Learned counsel of the petitioner in rebuttal submits that
petitioner has filed a suit qua encashment
of the bank guarantee before the
Senior Civil Judge.
objection of territorial jurisdiction
in the present proceedings. He further
submits that petitioner has raised
objection of territorial jurisdiction in the
application filed by the respondent
before the Senior Civil Judge,
under Section 41 of the Arbitration
Act. He summed up his arguments that
impugned order is without lawful authority and not in accordance with the
law laid down by the superior Courts
cited by him, which is noted in the
preceding paragraphs.
5, I have given my anxious consideration to the
contentions of the
learned counsel of the parties and
perused the record.
6, It is better and appropriate to reproduce the basic
facts in
chronological order, Clause 18.3 of
the agreement, relevant provision of the
Arbitration Act and Contract Act, to
resolve the controversy between the
parties:--
(i) The agreement was
executed between the parties at
(ii) The agreement was performed
at
(iv) The petitioner filed Civil Suit beture Civil Court at Lahore against the encashment of the bank, guaranty, secured interim relief, which was vacated subsequently, suit was withdrawn:
<v) The dispute arose between the parties at
(vi) According to Clause 18.3 of the agreement arbitrator was appointed by the competent authority under the provisions of the agreement or. 29.1.2001:
(vii) The petitioner
also reside at
(viii^The
petitioner/respondent also initiated proceedings before the
(ix) The petitioner
did not take any step to challenge the award dated 31.8.2002 before any Court m
(xi Respondent filed
application under Section 41 qua the proceedings initiated by the Arbitrator at
C'vil Revision No. 1249-2002. which was subsequently withdrawn;
ixi) The arbitrator
submitted the application under Section 14 in
(xii) The respondent ICI filed application under Section 17 before the trial Court to make the award as Rule of the Court on 4.1.2003.
(xiii)The present petitioner filed objection before the trial Court under Section 30/33 on 14.1.2003:
(xiv)The present petitioner filed application under Order 7, Rule 10 C.P.C. before the trial Court, which was dismissed on 16.6.2003.
Sec. 2(c) of Arbitration Act:
"Court" means a
Section 31(1) to (4) of Arbitration Act:
Jurisdiction. (1) Subject to the provisions of this Act, an award may be filed in any Court having jurisdiction in the matter to which the reference relates.
(2) Notwithstanding anything contained in any other law for
the time being in force and save as
otherwise provided in this
Act, all questions regarding the
validity, effect or existence of an
award or an arbitration agreement
between the parties to the
agreement or person claiming under
them shall be decided by
the Court in which the award under
the agreement has been, or
may be, filed, and by no other Court.
All
applications regarding the
conduct of arbitration
proceedings
or otherwise arising out of such proceedings shall
be made
to the Court where the award has been, or may be
filed,
and to no other Court.
Notwithstanding anything contained elsewhere
in this Act
has been
in force, where in any reference any application under
this Act
has been made in a Court competent to entertain it.
that
Court alone shall have jurisdiction over the arbitration
proceedings
and all subsequent applications arising out of that
reference and the arbitration proceedings shall be made in that
Court and in on other Court.
Clause 18.3 of'the agreement:
"If any question of difference
or dispute whatsoever shall arise between the parties hereto touching this Agreement or anyway connected therewith or arising therefrom, which
cannot be amicably settled under Article 17.1 above, then and in all
such cases, the same shall be referred for
arbitration at Karachi to a person
named jointly by the Company and the Customer and in the event that the Company and the Customer cannot
so agree to a person named by the
President of the Management Association of Pakistan acting as sole
arbitrator and the person so named shall
proceed to arbitrate in accordance with the Arbitration Act 1940 and the Rules made there-under'or any modification thereof, for the time being in
force. Any award or awards (which
shall specify the reasons for the same) referred in such arbitration
shall be final and binding on the Parties who shall
give full effect thereto, and Judgment may be entered upon such award(s) in any competent Court in
The phrase Lex fori is defined in Black's Law Dictionary Sixth Edition as under:
Lex fori: The
law of the forum, or Court; that is, the positive law of the state, country, or
jurisdiction of whose judicial system the Court where the suit is brought or remedy sought is an integral part, Substantive rights are determined by the law of
the place where the action arose, "lox loci." while the
procedural rights are governed by the law
of the place of the form, "lex fori." Mitchell vs.
"Doctrine of forum non-convenience" is also defined in Black's Law Dictionary Sixth Edition, which means power of Court to decline jurisdiction when convenience of parties and ends of Justice would be better served if actions were brought and tried in another forum. It is also settled principle of law that friction of cause of action will be part of cause of action and confers jurisdiction on a Court with the territorial jurisdiction of the little occurs. In arriving to this conclusion, 1 am also fortified by the law laid down in the following judgments:--
D. Mumrangappa vs. Amidaya la Venkatappa and other (AIR 1965 Masoor 316),
Tribni Prasad Singh
and other vs. Ramauray Prasad
Swaminatha Mudali us. M. Saravana Muaaii & others (AIR 1918 Madras 383).
Munna Lai us. Chhabil Das and others (AIR 1918 Lahore 329).
Nittala Achayya and others vs. Nittala Yellama and others (AIR 1923 Madras 109).
Faqir Muhammad vs.
It is also settled principle of law that suit can be filed where wrong committed or part of cause of action accrued. In arriving to this conclusion I am fortified by the law laid down in Akmid vs. Akber All Malik (2002 MLD 1693^ and Faqir Muhammad vs. Pakistan Through Secretary Ministry of Interior & Kashmir Affair Division, Islamabad (PLJ 2001 SC 377). It is pertinent to mention here that both the parties are residing at Lahore, therefore, no prejudice is caused to the petitioner, therefore, application filed by the petitioner before the Trial Court was rightly dismissed by the Trial Court in view of the parameters prescribed by the Legislature in its wisdom in Section 21 of the C.P.C. It is also proper to mention here that Clause 18.3 reproduced above clearly envisages the word "May", therefore, it is directory in nature and not mandatory in nature, coupled with the fact that petitioner has already filed civil suit against the respondent in the Civil Court at Lahore, therefore, petitioner is debarred to agitate the matter before the trial Court by filing application under Order 7, Rule 10 C.P.C. on the well known principle of approbate and reprobate, waiver and estoppel as the law laid down by the Honourable Supreme Court in Ghulam Rasool's case (PLD 1971 S.C. 376). It is also settled principle of law that agreement executed between the parties in violation of the substantive law is void. Under the law no man exclude himself from the protection of Courts by contract as law laid down in Rehmatunnissa Begum and others vs. Price and others (AIR 1917 P.C. 116). It has been held in a number of Judgments of different Courts that where more Courts than one have jurisdiction to try a suit there is nothing in violation to public policy in the agreement executed between the parties to the extent that dispute between them would be tried at one place out of these. In arriving to this conclusion I am fortified by the following precedents:-
Singhal Transport's case (AIR 1968 Raj. 89) National Petroleum's case (AIR 1937 Nag. 334).
The Full Bench of this Court while interpreting Section 28 of the Contract Act in Musaji Lumnanji's case (AIR 1946 Lah. 57) has laid down following principle:
"It was held that an agreement between two parties that suits . relating to disputes arising between them
would be instituted only in one out of several competent Courts having territorial
jurisdiction is not hit by Section 28 of the Contract Act.
It is settled law that where two Courts have jurisdiction to take cognizance of the matter under the ordinary law, an agreement that disputes will be tried by one Court only is valid and does not contrary to Section 28 of the Contract Act. It is also equally plain that if Courts of one place do not have jurisdiction under the ordinary law, a provision in a contract that such a Court alone shall have jurisdiction is void because jurisdiction cannot be conferred by the consent of parties as law laid down in M/s. Gamman India Ltd. vs. Hakam Singh (AIR 1967 A.W.R. 380). It is also settled law that Court may exercise its discretion to avoid injustice or inequity. In the light of the aforesaid precedents aforesaid clause of the agreement contain the word "May" which as -mentioned above directory in nature and does not contain express exclusive bar of Civil Court at Lahore, therefore, impugned order is valid in the eyes of law.
It is also settled principle of law that revisional jurisdiction is a discretionary in character as the law laid down by the Honourable Supreme Court. It is also principle of law that it is condition precedent to secure a discretionary relief; party must approach the Court with clean hands. The learned Trial Court has rightly observed that petitioner has not approached the Court with clean hands, therefore, I am not inclined to exercise my discretion in favour of the petitioner as the law laid down by the Honourable Supreme Court in Nawab Syed Raunaq Ali's case (PLD 1973 S.C. 236). It is also admitted fact in the present case that the award has been filed by the arbitrator, therefore, petitioner is debarrta to take the objection of territorial jurisdictions in view of Section 31. The making of the award is the end of the arbitration proceedings, therefore, subsequent following proceedings in question are governed by Section 31 (1), (2), (3), £ (4):
(i) Filing of the award;
(ii) Making it a Rule of the Court.
It is settled law that the question whether the Court has jurisdiction over the matter be decided in accordance with the general provisions in the C.P.C. as law laid down by the superior Courts in the following judgments:--
Muhammad Yasin vs. Muhammad Farooq (1989 MLD 2010).
Yeshwant Rao Ganpat Rao Vipat and others vs. Dattarttraya Ramchandra Rao Vipat (AIR 1940 Nagpur 191).
Muhammad Hanif vs. The Administrator, Thai Development (1989 MLD 2775).
Badha Kishen vs. Bombay Company Ltd. (AIR 1943 Lahore 295).
Curseiji Jamshedji Ardaseer Wadia and others vs. Dr. R.D. Shiralee (AIR 1943 Bombay 32).
It is also settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts and every judgment must be read as applicable to the peculiar facts proved or assumed to bejroved as per law laid down by the Honourable Supreme Court in "Trustee Board of Karachi's case" (1994 SCMR 2213). The judgments cited by the learned counsel of the petitioner are distinguished on facts and law in view of the aforesaid discussion.
In view of what has been discussed above, the petition has no merit
and the same is dismissed.
(B. T.) Petition dismissed.