NAZEER AHMED (DECEASED) vs SHAUKAT ALI (DECEASED) S — 2022 MLD 818 LAHORE-HIGH-COURT-LAHORE

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NAZEER AHMED (DECEASED) VS SHAUKAT ALI (DECEASED) S.33---Respondent filed application for making award Rule of the Court---Petitioner filed application for setting aside Arbitration Agreement and the said award---Civil Court accepted the petitioner's application and dismissed the application of respondent---Appellate Court accepted appeal of the respondent---Petitioner contended that he had never entered into any agreement for the reference of dispute nor ever appointed any arbitrator; that the alleged reference to the arbitration was based on fraud; and that the award was improperly procured which was invalid; that prior to the respondent's application, civil litigation was pending between the petitioner and the Municipal Committee wherein respondent was also a party; and that having trust in the respondent (being his brother), the petitioner had been affixing his thumb-impression on certain blank papers as required for filing some applications/pleadings in the civil suit which had been fraudulently misused by respondent for fabricating the alleged arbitration agreement/award---Validity---All three stamp papers including two alleged stamp papers by which the appointment of arbitrators was claimed and one stamp paper of Faisla Salsi were of the same date---Question arose as to how stamp papers for appointment of arbitrators were allegedly purchased and on the very same day the decision of the arbitrators was also allegedly announced---All three stamp papers were allegedly purchased from person produced by respondent as witness who admitted in cross-examination that he did not personally know either the petitioner or the respondent that there was no entry of CNIC numbers of the alleged purchasers at the back of stamp paper; and that at the time of purchase of stamp papers he did not obtain identification from anyone---Genuineness of such documents was suspicious as the same were not proved by any admissible/credible evidence---Statements of others two respondents were different from what had been recorded in reference---Respondent admitted that the house in question was owned by his father who was not party or signatory to the said arbitration agreement---Being not a privy to the arbitration agreement, arbitrators could not assume jurisdiction to settle any question of title qua the property of respondent's father---In view of inherent jurisdictional defect, the entire proceedings for alleged award stood vitiated---Respondent was not a co-sharer in the property in question, he could not have any dispute with respect to partition thereof, nor he could make a reference to arbitration and, thereafter, get an award from the arbitrators---Arbitration agreement was allegedly made on 15/05/2000 while father of parties had already gifted one-half of his house vide registered document dated 03/05/2000 and the other half of the house was gifted by him vide registered gift deed which was executed by their father on 13/05/2000 and was entered into the register of the Sub Registrar on 15/05/2000---Respondent claimed that in terms of the award he was declared to be entitled to the transfer of the ownership of shop which at that time did not vest in the petitioner---Arbitrators did not give any reason as to how they could assume jurisdiction firstly in respect of the property that did not belong to the petitioner/respondent or in respect of the shop which was not owned by the petitioner and was still in the ownership of the Municipal Committee which was not a party to the alleged reference---Alleged award could not be approved by the court which was not a result of any valid reference and was invalidly and improperly procured---Evidence of respondent was self-contradictory/discrepant---Shop in dispute was subject matter of a pending litigation; civil suit between the parties and the Municipal Committee was still pending and the property basically was owned by the Municipal Committee and only Teh Bazari rights existed with the petitioner and, therefore, without permission of the court, the issue of alleged ownership could not possibly be determined during the pendency of the said suit---No possibility of any dispute between the petitioner and respondent in respect of the three properties which were independently held---Revision petition was allowed accordingly.

NAZEER AHMED (DECEASED) vs SHAUKAT ALI (DECEASED) S — 2022 MLD 818 LAHORE-HIGH-COURT-LAHORE

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