The GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar vs HMA PUMPS (PVT

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The GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar VS HMA PUMPS (PVT.) LTD. PESHAWAR CANTT. Ss. 14, 16 & 20---award passed by arbitrators unanimously---Scope---Remitting (re-referring) matter to arbitrators or umpire---Reconsideration---Scope---Provincial Government filed appeal against the order passed by the Civil Court whereby the award made by the umpire was made rule of court---argument of the appellant (Provincial Government) was that as earlier, during the proceedings before the Court, arbitrators had passed award unanimously, the Court had wrongly accepted application of respondents/Company for remitting/re-referring the matter to the umpire---Contention of the respondents/ company was that it was provided under S. 16 of the arbitration act 1940 ('the act 1940') that the award could be remitted to the arbitrators or the umpire for reconsideration, therefore, the Trial Court had rightly remitted the award to the umpire, instead of arbitrators---Question as to whether in a case when an unanimous award has been passed, the matter may be re-referred/remitted to the arbitrators who passed the award or it could be referred to an umpire---Held, that S. 16 of the act 1940 and Rr. 2, 4 & 5 of the First Schedule of the act 1940 clearly demonstrate that the umpire can only take cognizance in the matter if there are the circumstances provided under R. 4, which, inter alia, include that both arbitrators could not agree on a particular issue---Therefore, an umpire cannot be called upon to act under R. 5 if the circumstances as provided under R. 4 do not arise---Thus, the contention of the respondents/company went counter to the scheme of S. 16 of the act 1940, which clearly envisaged that where award had left undetermined any of the matters referred to arbitration, or where it determined any matter not referred to arbitration and such matter could not be separated without affecting the determination of the matter referred to, the Court was competent to remit the award or any matter referred to arbitration of the arbitrators or umpire for reconsideration---This clearly implies that if the ambiguity, as stated in S. 16 of the act 1940, arises out of the award passed by the arbitrators, then the matter shall be referred to the arbitrators and in case the same is arising out of the award passed by the umpire, then obviously the same has to be referred for reconsideration to the umpire---Indeed, the word "reconsideration" is a determining fact implying the intention of legislation because the award passed by the arbitrator cannot be reconsidered by the umpire as the role of umpire comes into play only when there is disagreement between the arbitrators---Thus, the impugned order of the Trial Court remitting the award to the umpire was patently illegal and the entire edifice built upon the said order had to crumble to the ground being coram non judice and against the letter and spirit of S. 16 of the act 1940 read with the First Schedule of the act 1940---High Court set-aside the impugned order of the Trial/Civil Court to the extent of remitting the award to the umpire, the award passed by the umpire; and the impugned judgment/order of the Trial Court making the disputed award passed by the umpire as rule of the Court were also set aside and the matter was sent back to the Trial Court to redecide the application of the respondents/company, which it had filed under S. 16 of the act, 1940---appeal, filed by the Provincial Government, was allowed accordingly.

The GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar vs HMA PUMPS (PVT — 2025 CLD 133 PESHAWAR-HIGH-COURT

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