Law: Arbitration Act, 1940

Section: 34

Law: Arbitration Act, 1940

Section: 34

Arbitration Act (X of 1940)-------S. 34---Civil Procedure Code (V of 1908), S.104 & O.XLIII---Application under S.34, Arbitration Act, 1940---Order passed without application of judicial mind---Effect---Perusal of order revealed that none of the contentions raised by parties was considered or adjudicated upon by Court---No ground as available under the law for acceptance or rejection of application under S.34 of Arbitration Act, 1940 had been considered or applied to the facts and circumstances of the case---Real matter in controversy had not been dilated upon or decided, consequently impugned order was held to be not sustainable---Application under S.34 of Arbitration Act, 1940 would be deemed to be pending. Haji Soomar Haji Hajjan v. Muhammad Amin Muhammad Bashir Ltd. PLD 1981 SCMR 129 ref. Kh. Aamir Farooq for Appellants. Syed Ikhtisar Ahmad for Respondents. ORDER SH. AZMAT SAEED, J.---This appeal is directed against order, dated 20-1-2006 whereby the application under section 34 of the Arbitration Act, 1940, filed by the present appellants seeking stay of the suit filed by the respondents was dismissed. 2. Brief facts leading to the filing of this appeal are that the respondents filed a suit against the appellants alleging therein that in between the properties owned by the two parties, there was a common passage which, it is alleged was owned by neither of them. It was further alleged that agreement based on the alleged false claim of appellant No.1 regarding the ownership of the said common passage was executed on 1-1-1990, whereby, the appellant obtained a right of access from the property of the respondents in lieu of the said common passage used by the respondents. It is alleged in the plaint- that the appellants have encroached upon the said common passage causing a financial loss to the respondents. In addition to the claim of the damages, a declaration was also sought by way of the said suit by the respondents that an agreement, dated 1-1-1990 was a result of fraud and misrepresentation; and the property in dispute was a common passage; and the appellants be restrained from encroaching thereupon; and further be directed to remove the existing…

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