Sardar MUHAMMAD KAMAL-UD-DIN KHAN vs Syed MUNIR SYED S — 2022 SCMR 806 SUPREME-COURT

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Sardar MUHAMMAD KAMAL-UD-DIN KHAN VS Syed MUNIR SYED S. 115---Revision petition---Scope---No right of appeal provided---Not necessary that whenever an appeal is not provided for a revision would lie---Revision can only be filed if the order/judgment which has been impugned comes within clauses (a), (b) and/or (c) of subsection (1) of S. 115 of C.P.C. Head NotesCase Description Citation Name: 2022 SCMR 806 SUPREME-COURTBookmark this Case Sardar MUHAMMAD KAMAL-UD-DIN KHAN VS Syed MUNIR SYED S. 14--- Constitution of Pakistan, Arts. 4 & 10A---Arbitration award---Award passed in undue haste and in disregard of requirements of due process and fair trial---In the present case the Award did not state that a written claim was submitted by the plaintiff-respondent; that he led evidence, let alone the Arbitrator having discussed it; did not state that the defendant-appellant was given an opportunity to reply to the claim; that the defendant-appellant was provided an opportunity to lead evidence and allowed to cross-examine the plaintiff-respondent and his witnesses---Contents of the Award showed that it was passed in undue haste and in disregard of the requirements of due process and fair trial, respectively, mandated by Art. 4 & Art. 10A of the Constitution---Such an Award was not sustainable---Appeal was allowed. Head NotesCase Description Citation Name: 2022 SCMR 806 SUPREME-COURTBookmark this Case Sardar MUHAMMAD KAMAL-UD-DIN KHAN VS Syed MUNIR SYED S. 115---Revisional jurisdiction of the High Court---Scope---Power of revision cannot be used by a higher court to substitute its own opinion, discretion or authority. Head NotesCase Description Citation Name: 2022 SCMR 806 SUPREME-COURTBookmark this Case Sardar MUHAMMAD KAMAL-UD-DIN KHAN VS Syed MUNIR SYED arts. 185(2) & 185(3)---Supreme Court Rules, 1980, O. XII, R. 2---Petition for leave to leave filed before the Supreme Court under art. 185(3) of the Constitution when an appeal is competent under art. 185(2)---Petition for leave to appeal converted into an appeal---Scope---In the present case an appeal was maintainable as of right, but mistakenly the petitioners filed a petition for leave to appeal, but did so within the prescribed period of thirty days for filing an appeal---Conversion of the petition into an appeal also does not undermine any right or benefit of any of the respondents---Therefore, present petition was converted into an appeal. Head NotesCase Description Citation Name: 2022 SCMR 806 SUPREME-COURTBookmark this Case Sardar MUHAMMAD KAMAL-UD-DIN KHAN VS Syed MUNIR SYED Ss. 20(1), 31 & 33---Specific Relief act (I of 1877), Ss. 12, 42, 54 & 55---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for specific performance of agreement, declaration, permanent and mandatory injunction---after said suit was dismissed for non-prosecution, plaintiff-respondent invoked arbitration and proceeded before the arbitrator---Defendant-appellant filed an application before the Trial Court under S. 31 of the arbitration act, 1940, which was allowed and arbitration proceedings were stayed---Order of Trial Court was maintained by the appellate Court, however High Court in its revisional jurisdiction set-aside concurrent orders of courts below, and ordered the arbitrator to proceed with the reference---Legality---Respondent-plaintiff had instituted a suit with respect to the subject-matter of the agreement, and having done so he could not, after the dismissal of his suit, resort to arbitration unilaterally and by disregarding the procedure prescribed by S. 20 of the arbitration act, 1940---High Court incorrectly held in the impugned judgment that an application under S. 33 of the arbitration act, 1940 should have been filed by the defendant-appellant instead of S. 31---Defendant-appellant had filed his application 'under S. 31 and all other enabling provision[s] of the arbitration act, 1940', and S. 31 vests in the court jurisdiction to determine 'the validity, effect or existence' of 'an arbitration agreement'---View of the High Court with regard to holding that the application was not maintainable under S. 31 was not correct---In the facts and circumstances of the case, the High Court could not have invoked its powers of revision to set aside the concurrent findings of the courts below---appeal was allowed and impugned judgment of High Court was set aside. Head NotesCase Description

Sardar MUHAMMAD KAMAL-UD-DIN KHAN vs Syed MUNIR SYED S — 2022 SCMR 806 SUPREME-COURT

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