P L D 1954 Sind 1

Before Muhammad Bakhsh, J

HOOSEN BROTHERS LTD.-Petitioner

versus

PAKISTAN TEXTILE MILLS LTD.-Respondents

As against this the learned advocate for the respondents has argued that the
proceedings under sections 8 and 20 are two separate things altogether and
therefore the application under section 8 cannot be treated as an application
under section 20. He has set out the following points of differences.

(a) Section 8 appears in Chapter II while section 20 is the only section of

Chapter III.

(b) Under section 8 the relief sought is the appointment of arbitrator, while in
section 20 it is the agreement which is sought to be filed.

(c) Application under section 20 is to be numbered and registered as a suit;

not so the application under section 8 which is to be treated as a
miscellaneous application.

(d) Under section 20 the Court is to give a notice to all parties; no such notice
is to be issued under section 8

(2).

(e) Order under section 8 is not appeal-able while under section 20 it is.

I have considered all these points and except in one point (e) I do not find
anything substance in any other point; and in point (e) also if the application
under section 8 were treated as an application under section 20, it will put the
respondents in a more advantageous position: i.e., they will have the right of
appeal which under section 8 they do not possess.
2019 C L C 416

[Islamabad]

Before Miangul Hassan Aurangzeb, J

EXCEL TECHNO SOLUTIONS FZE, UAE through Sole Proprietor

and another----Petitioners

Versus

Messrs OIL AND GAS DEVELOPMENT COMPANY LIMITED

through Counsel and another—Respondents

16. It is not disputed that an order to reject an application filed under the
provisions of the 1940 Act is not appealable under section 39 of the 1940 Act
which runs thus:-

'Appealable orders. (1) An appeal shall lie from the following orders passed
under this Act (and from no others) to the Court authorized by law to hear
appeals from original decrees of the Court passing the order:

(i) superseding an arbitration;

(11) on an award stated in the form of a special case;

(111) modifying or correcting an award;

(iv) filing or refusing to file an arbitration agreement;

v) staying or refusing to stay legal proceedings where there is an arbitration

agreement;

vi) setting aside or refusing to set aside an award:

Provided that the provisions of this Section shall not apply to any order passed
by a Small Cause Court.

2) No second appeal shall lie from an order passed in appeal under this
Section, but nothing in this Section shall affect or take away any right to
appeal to the Supreme Court."

17. The language of the section is plain and unambiguous. By section 39(1), the
right to appeal is conferred against the specified orders and against no other
orders; and from an appellate order passed under section 39(1), no second
appeal except an appeal to Supreme Court lies. In order that an appeal may lie
 against an order, it must be shown to be one included in any of the clauses (i)
to (vi) of section 39(1). Since an appeal is a creature of statute, the right of
appeal cannot be extended by implication.

The legislature has plainly expressed itself that the right of appeal against
orders passed under the 1940 Act may be exercised only in respect of certain
orders. The right to appeal against other orders is expressly taken away.

2005 Y.L.R 2709

[Karachi]

Before Rahmat Hussain Jafferi, J

MUJTABA HUSSAIN SIDDIQUI---Plaintiff

Versus

SULTAN AHMED---Defendant

14. Under section 8(1)(a) of the Arbitration Act if the parties do not agree to
the appointment of the arbitrator, then a notice is required to be given to the
party to consent or concur the appointment and after 15 days of the service of
notice if the party does not concur to the appointment of the arbitrator then
the Court may on the application of a party after giving notice and hearing the
other party appoint an arbitrator to make an award on reference and then the
said arbitrator is deemed to have been appointed by consent of all parties

P L D 2011 Karachi 571

Mst. Surriya Rehman Through Attorney v. Siemens Pakistan

Engineering Company Ltd.

The relevant portion goes as following:

Insofar as the objection taken by learned counsel for the plaintiff that since the
arbitration is to be before the managing director of the defendant No.1, the result is a
foregone conclusion, I am not at all satisfied that there is any substance to this
objection. In fact, what the plaintiff claims is that the arbitrator (i.e., the managing
director) will not be biased against the plaintiff, or at least biased in favor of the
defendant No.1. However, as pointed out by learned counsel for the defendant No.1,
it is well settled that the mere fact that an officer or director of one party has been
chosen as the arbitrator is no ground in and of itself not to refer the parties to the
arbitration. Secondly, the arbitrator is selected in the present case is by designation
and not by name, i.e., is the holder for the time being of the office of managing
director. The question of bias, if any, would arise in respect of the acts or omission of
an individual, and allegations of bias cannot be made against an office as such.
Nothing has been brought on the record that would establish that there would be a
bias against the plaintiff and/or in favor of the defendant No.1 in any manner.

P L D 2011 Karachi 571

Mst. Surriya Rehman Through Attorney v. Siemens Pakistan

Engineering Company Ltd.

The relevant portion goes as following:

Insofar as the objection taken by learned counsel for the plaintiff that since the
arbitration is to be before the managing director of the defendant No.1, the result is a
foregone conclusion, I am not at all satisfied that there is any substance to this
objection. In fact, what the plaintiff claims is that the arbitrator (i.e., the managing
director) will not be biased against the plaintiff, or at least biased in favor of the
defendant No.1. However, as pointed out by learned counsel for the defendant No.1,
it is well settled that the mere fact that an officer or director of one party has been
chosen as the arbitrator is no ground in and of itself not to refer the parties to the
arbitration. Secondly, the arbitrator is selected in the present case is by designation
and not by name, i.e., is the holder for the time being of the office of managing
director. The question of bias, if any, would arise in respect of the acts or omission of
an individual, and allegations of bias cannot be made against an office as such.
Nothing has been brought on the record that would establish that there would be a
bias against the plaintiff and/or in favor of the defendant No.1 in any manner.