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Civil Appeal No. 19 of 1964, decided on 4th May 1965.

, S. 20(4). read with Ss. 8 & 9 Arbitration agreement‑Sole arbitrator named‑Authority of such arbitrator revoked by Court‑‑Power to fill vacancy available to Court under S. 20(4) and not under S. 8 or S. 9‑[Yar Muhammad v. Ghulam Sarwar P L D 1952 Lah. 563 dissented from].

Yar Muhammad v. Ghulam Sarwar P L D 1952 Lah. 563 dissented from.

, Ss. 20 & 47‑Section 47 a residuary section‑Does not override provision of S. 20‑Merely makes provisions of Act applicable to all arbitrations not arising out of agreements of parties but those arising out of a statute.

S. 20 read with Ss. 11 & 12 Authority of arbitrator named in agreement revoked by Court- Revocation not warranted prior to reference‑Court has jurisdiction to appoint another arbitrator after revocation‑Award given by subsequent arbitrator not vitiated‑Validity of order of reference to second arbitrator can, however, be objected to.

, S. 12 read with. S. 2(a) Arbitration agreement‑Court revoking authority of named arbitrator and calling upon parties to furnish panel of names for appointment of new arbitrator‑Furnishing of such panel of names- Cannot be said to be execution of fresh arbitration agreement between parties.

Ss. 30 & 39‑Award Grounds for setting aside‑Words "or is otherwise invalid" occurring in clause (c) of section 30‑Include all kinds of objec tions‑Objection to validity of reference to arbitration falls within purview of clause‑Practice‑Objections should be made at time award is filed‑Objections not raised before arbitrator or Court cannot be raised in appeal‑Objections to award should be decided separately and not incorporated in order directing decree to be passed in terms of award-Composite order may be construed as one refusing to set aside award.

S. 13 & First Schedule -Arbitrator‑Not bound by technicalities of law of evidence or procedure‑Nor bound to frame issues or give separate findings on each issue‑Issues, if framed, must all be decided not necessarily separately.

, Preamble and S. 115‑Estoppel- Rule does not apply to proceedings before arbitrators.

[Case‑law referred to]. .

M. A. Hafeez assisted by Maulvi Siraj‑ul‑Haq and Muhammad Hanif Bhatti for the State.

S. M. Zafar for Respondent.

Date of hearing : 19th' March 1965.

‑On an application made by the respondent under section 20 of the Arbitration Act, a learned Single Judge of this Court was pleased to revoke the authority of the Chief Conservator of Forests, the arbitrator named in the agreement, and to appoint Mirza Nazir Hussain Khan, District Judge as an arbitrator in his place. The Government, the opposite‑party, took a number of objections to the filing of the agreement and to the making of the reference which were overruled and the arbitrator then made his award. The learned Government Advocate again filed objections to the award which were overruled. The Government then filed an appeal before a Division Bench against the judgment and order of the learned Single Judge dated 31‑8‑64 refusing to set aside the award dated 30‑5‑64 and the decree that had been passed against the appellant. The Division Bench hearing the appeal by its order dated 13‑3‑65 referred the following law points for decision by a Full Bench:‑--

(1) If the authority of the named arbitrator is revoked prior to his entering upon the reference and another arbitrator is appointed by the Court, whether such a course would vitiate the award given subsequently by the arbitrator so appointed

(2) Whether objection to the validity of the reference can be raised at this late stage of appeal ‑

(3) Whether the omission on the part of the appointed arbitrator to adjudicate on some of the issues framed by him on the basis of the statement of facts filed by the parties is an illegality which would vitiate the award or it is only an irregularity which could be cured

(4) Whether the receipt executed by the lessee regarding taking over of the leased volume of timber would estop him from pleading to the contrary

The Full Bench after hearing the parties' counsel proceeds to answer the points of reference as under:‑---

Point of reference No. 1.‑It was argued by Moulvi Siraj‑ul- Haq learned counsel for the appellant that where the reference is invalid the award is a nullity. He cited A I R 1937 All. 65, A I R 1946 P C 72, P L D 1964 Dacca 166, P L D 1959 Kar. 325, P L D 1954 Sind 30, 54 and 247. Mr. Zafar learned counsel for the respondent argued that the order of revocation was valid and even if the order of revocation was invalid, the award would still be valid and it cannot be said to have been vitiated. He cited P L D 1952 Lah. 563 and 1961 Himachel Pradesh 35.

The facts of A I R 1937 All. 65 were that the guardian of a minor had agreed to join in the reference to arbitration. It was held by the Full Bench that leave of the Court must be obtained before the reference is made and the Court should expressly record such granting of leave in the proceedings in accordance with the provisions of' Order XXXII, rule 7, C. P. C. and that a reference agreement entered into by the minor's guardian without the leave of the Court vitiated the order of reference and the award given by the arbitrator and the decree passed thereon which is voidable on the option of the minor. Iqbal Ahmad, J. gave a dissenting judgment. His view is supported by A I R 1946 P C 72 which laid down that all the powers conferred upon the Court in relation to an award on a reference made in a suit pre‑suppose a valid reference on which an award has been made which may be open to question. If there is no valid reference, the purported award is a nullity, and can be challenged in any appropriate proceeding. The opening words of para. 21 which require the Court to be satisfied that the matter has been referred to arbitration are absent in para. 16. Therefore, an appeal lies from a decree made in terms of award which was made on an invalid reference.

The facts of Munawar & Co. v. S. A. Rauf & Co. (P L D 1959 Kar. 325) were that ad the umpire under the written agreement was to be appointed by the, Karachi Cotton Association‑Limited the two arbitrators failed to agree on an umpire. The umpire instead was appointed by the Pakistan Cotton Association to whose jurisdiction the parties had submitted by adducing evidence before him. It was urged that in the circumstances the award given by the umpire was valid. It was held that the alterations relating to the appointment of the umpire or arbitrator are alterations of a substantial condition of the agreement and such alterations are to be evidenced by writing. That is the demand of section 2 of Arbitration Act. The appointment of an arbitrator or umpire is a matter which pertains to jurisdiction, and when a departure in this respect is made from the written agreement, that departure must be with the consent, in writing, of the parties. Mere submission to the alteration is not enough. It is a material alteration in the agreement and is required to be in writing under section 2 of the Arbitration Act. The umpire who gave the award had no jurisdiction to enter upon the reference and if the parties submitted to his arbitration by conduct, submission did not confer jurisdiction upon him. Submission should have been in writing. The award for the aforesaid reasons was illegal and was correctly set aside by the trial Judge. It was laid down in Munawar & Co. v. S. A. Rauf & Co. (P L D 1954 Sind 30) that there can be no waiver without knowledge of the material facts; and that the defendants did not know that the umpire was not a member of the Karachi Cotton Association. An appearance before an arbitrator whose appointment is without jurisdiction and ultra vires, even though it is not made, under protest, does not amount to a waiver of the right of a party to contest that the arbitrator has no jurisdiction to act. The award was set aside. The dispute in Inam & Co. v. S. A. Rauf & Co. (P L D 1954 Sind 54) was whether the case would be governed by rule 140 of the Karachi Cotton Association which was in existence on the date of reference but was not in existence on the date of agreement or by rule 39 which might otherwise have been applicable in the absence of rule 140. It was laid down that the intention could only be that the dispute could be referred to the arbitration in accordance with the rules that would be in existence on the date when the question of arbitration arose. Similarly in Faridsons Ltd. v. S. M. Fazail & Co. (P L D 1954 Sind 247), the question was the applicability of rule 140 or rule 39 of the Karachi Cotton Association Limited.

On the point whether the authority of the arbitrator named in the agreement can be revoked before a reference is made to him, we have one Single Bench judgment reported as Muhammad Ishaque v. Azad J. & K. Govt. (P L D 1962 Azad J & K 1), and two Division Bench judgments one reported as Muhammad Ishaque v State (P L D 1963 Azad J & K 1), and the other an unreported judgment given in Civil Appeal No. 8 of 1964 "Azad Govt. of the State of Jammu & Kashmir v. Shaheen Timber Trading Co. and others" decided on 27‑7‑1964. The Single Bench judgment laid down that the parties to an arbitration agreement having entered into the agreement with their eyes open, the authority of the named arbitrator could not be revoked even though he happened to be an Officer of the Government who was a party to the arbitration agreement. The Division Bench judgment reported as P L D 1963 Azad J & K 1, laid down that not only that the arbitrator should act impartially but it should also appear that he would act impartially. The question whether the authority of the named arbitrator can be revoked before a reference is made to him was not specifically raised in this case. The unreported Division Bench judgment "Azad Govt. of the State of Jammu and Kashmir v. Shaheen Timber Trading Co." referred to above specifically laid down that the authority of the named arbitrator could revoked only after a reference had been made to him. The Judges deciding Civil Appeal No. 8 of 1964 were of the opinion that "where no sufficient cause is shown, the Court is bound under subsection (4) of section 20 of the Arbitration Act to refer the dispute to the arbitrator named in the agreement and after such reference had been made, leave to revoke the authority of such arbitrator can be granted provided a fit case had been made out for revocation." The reasoning of this Division Bench was that subsection (5) of section 20 which provides that thereafter arbitration shall proceed in accordance with and shall be governed by the other provisions of the Act so far as they can be made applicable, clearly shows that where no sufficient cause is shown the Court shall under subsection (4) refer the dispute to the arbitrator named in the agreement and if his authority is sought to be revoked it could be revoked after the reference had been made to him. It was argued by Mr. Zafar, learned counsel for the respondent, that section 47 of the Arbitration Act empowers the Court to revoke the authority of the named arbitrator even before a reference had been made to him. He cited Yar Muhammad v. Ghulam Sarwar (P L D 1952 Lah. 563), in which it was laid down by Muhammad Sharif, J. that the plain meaning of subsection (4) of section 20 is that in the absence of a sufficient cause, the Court shall order the agreement to be filed and shall call upon the arbitrator mentioned in the agreement of the parties or otherwise agreed to by them, to decide the dispute and if the parties cannot agree, then the Court shall have a right to appoint another arbitrator. The omission or failure on the part of the arbitrator first appointed by the parties would not make the agreement wholly ineffectual, but the agreement could still be kept alive by the parties by agreement, and failing that, by the Court itself. The phrase "and to all proceedings there under" occurring in section 47 of the Arbitration Act, would attract the other sections of the Act to an application for filing the agreement in the Court under section 20. This would make it possible to have recourse to sections 8 and 9 of the Act, the application of which shall not bye confined to the proceedings after the agreement under section 20 has been ordered to be filed. The facts of this case were that one Munshi Karim Bakhsh sold a house in Multan city to Yar Muhammad and. Muhammad Niwaz. The neighbours Khalifa Ghulam Sarwar and Yar Muhammad son of Khalifa Khair Muhammad and Ghulam Shabir, claimed a right to pre empt on the ground of contiguity. The parties entered into an agreement according to which the dispute was referred to the arbitration of Haji Faiz Bakhsh and Ghulam Mustafa of Multan city, who were required to assess the valuation of the portion of the house from thala kham to the extremity of the Kotha. After the assessment so made, the party, i.e., Yar Muhammad and Muhammad Niwaz vendees, were to convey that property to the intending pre‑emptors and formal deed was to be executed and registered. In violation of this agreement, a suit for pre emption was brought by Khalifa Ghulam Sarwar, etc., the neighbours. The vendees made an application under section 34 of the Act to stay legal proceedings as the matter had been agreed to be referred to arbitration. The suit was ordered to be stayed. The arbitrators served notices upon the vendees intimating their unwillingness as arbitrators. Thereafter the vendees presented an application under section 20 that the arbitration agreement be filed in Court. The respondent pre‑emptors admitted the execu tion of the agreement but maintained that the issue was referred to the arbitration of Haji Faiz Bakhsh and Ghulam Mustafa who had refused to arbitrate, and the essence of the agreement was that nobody else should be permitted to act as arbitrators; nor were the respondents willing to accept the arbitration of any other person. The trial Court framed the following issues:‑---

(1) Was the arbitration agreement intended only for the specific arbitration of Faiz Bakhsh and Ghulam Mustafa on account of which the present petition is not competent

(2) If issue No. 1 is found against the respondents, is not the Court empowered to appoint arbitrator

(3) Relief.

On issue No. 1 the trial Court held that the arbitrators had not appointed an umpire within one month as laid down in the First Schedule and had not given their award within 4 months. It was, further, held that a portion of the property sold was to be measured and its valuation made, and the matter, being of a technical nature, could not be entrusted to the arbitration of any other person. On these findings the Court refused to file agreement. The decision on issue No. 2 was not given as it was considered unnecessary. The petition for filing the agreement was, therefore, dismissed. The vendees then went up in appeal. The learned Judge (Muhammad Sharif, J.) held that under paragraph 17 of the old Code (C. P. C.), the refusal or the death of the sole arbitrator or one of the arbitrators before the filing of the application, constituted a sufficient reason for refusing to file the agreement in Court but under the provisions of subsection (4) of section 20 of the Arbitration Act position had been changed and the death or refusal of the named arbitrator did not put an end to the arbitration agreement unless it could be shown that it was intended not to supply the vacancy. If the named arbitrator died or refused to act, the Court could call upon the parties to name another arbitrator and in case of their failure to agree to another arbitrator, the Court could appoint another arbitrator. The learned Judge was of the opinion and the learned counsel for respondents also argued that the power to supply the vacancy was furnished to the Court by section 9, clause (a) of which provides that "if either of the appointed arbitrators neglects or refuses to act or is incapable of acting, or, a dies, the party who appointed him may appoint a new arbitrator in his place". Section 9 provides for a case "where the arbitra tion agreement provides that a reference shall be to two arbitrators, one to be appointed by each party, if either of the appointed arbitrator neglects or refuses to act or is incapable of acting, or dies, the party who appointed him may appoint a new arbitrator in his place, or if the party fails to appoint an arbitrator, for fifteen clear days after the service by the other party of a notice in writing to make the appointment, such other party having appointed his arbitrator before giving the notice, the party who has appointed an arbitrator may appoint that arbitrator to act as a sole arbitrator in the reference, and his award shall be binding on both parties as if he had been appointed by consent". This is clause (b) of section 9. There is a proviso added to the section that "the Court may set aside any appointment as sole arbitrator made under clause (b) and either, on sufficient cause being shown, allow further time to the defaulting party to appoint an arbitrator or pass such other order as he thinks fit". Section 9, in our opinion, does not apply to the facts of the case before us. In the present case the arbitration agreement does not provide that the reference shall be made to two arbitrators one to be appointed by each party but there is a sole arbitrator named in the agreement to which both the parties have agreed. Section 8 provides for a case "where an arbitration agreement provides that the reference shall be to one or more arbitrators to be appointed by consent of the parties and all the parties do not after differences have arisen, concur in the appointment or appointments; or, if any arbitrator or umpire neglects or refuses to act, or is incapable of acting, or, dies and the arbitration agreement does not show that it was intended that the vacancy should not be supplied and the parties or the arbitrators as the case may be, do not supply the vacancy; or, where the parties or the arbitrators are required to appoint an umpire and do not appoint him ; then any party may serve the other parties or the arbitrators, as the case may be, with a written notice to concur in the appointment or appointments or supply the vacancy. If the appointment is not made within fifteen clear days after the service of the said notice, the Court may on the application of the party who gave a notice and after, hearing that party appoint an arbitrator or arbitrators or umpire, as the case may be." This section also does not apply to the facts of the case before us. The arbitration agreement in the present case does not provide that the reference shall be to one or more arbitrators to be appointed by the parties but here a sole arbitrator has been appointed by the consent of the parties already in the agreement itself. In our opinion, in a case similar to the one before us where a sole arbitrator has been named in the agreement itself, if he dies or refuses to act or becomes incapable of acting, the power to supply the vacancy has beer, furnished to the Court under section 20 itself and that power is not furnished by section 8 or 9 of the Arbitration Act. Under subsection (4) of section 20, where no sufficient cause is shown, the Court shall order the agreement to be filed and shall make an order of reference to the named arbitrator, i.e., the arbitrator appointed by the parties in the agreement itself. If, however, the named arbitrator dies or refuses to act or becomes incapable of acting, the Court shall call upon the parties to name another arbitrator and if they do not agree to any particular arbitrator, then sub section (4) gives the Court the power to refer the dispute to an arbitrator appointed by the Court. We are in respectful disagreement with the learned Judge who decided P L D 1952 Lah. 563.

Section 46 of the Arbitration Act makes provisions for what are called statutory arbitrations. Section 47 provides that:

"Subject to the provisions of section 46, and save in so far as is otherwise provided by any law, for the time being in force, the provision of this Act shall apply to all arbitrations and to all proceedings thereunder : provided that an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending."

Section 47 is a residuary section. If an award is obtained otherwise than in accordance with the provisions of the Arbitra tion Act, about a matter with respect to which a suit is pending in a Court, it may nevertheless be accepted as a compromise or adjustment of the suit provided all the interested parties agreed before the Court to this being done. Sections 21 to 25 make provisions for a reference to arbitration in suits pending in a Court of law. If the parties to a suit desire to have disputes decided through arbitration they must proceed according to the provisions of those sections. If they make a reference direct, that is without the intervention of the Court, the award of such an arbitrator would be a nullity. The proviso however makes an exception in the case of these awards to the filing of which all the interested parties give their consent. If all the interested parties agree to the acceptance of the award, the Court may take it into consideration as a compromise or adjust ment under Order XXIII, rule 3, C. P. C. Section 47 does not amend or over‑ride section 20 of the Arbitration Act. It simply lays down that the provisions of the Arbitration Act shall apply to all arbitrations, i.e., arbitrations which do not arise out of any agreement by the parties but arise out of certain statute and also provide for the case where a reference is made to arbitration in a pending suit without the intervention of the Court.

The cases cited by the learned counsel for the appellant are all cases which go to the root of the jurisdiction of the arbitrator to whom reference is made: A I R 1937 All. 65 and A I R 1946 P C 72 are cases where a reference agreement was entered into by the guardian of a minor without the express leave of the Court and it was held that unless the express leave of the Court is obtained a reference to arbitration on behalf of the minor is without jurisdiction and is a nullity. P L D 1959 Kar. 325 and P L D 1954 Sind are all cases where reference had been made to an arbitrator other than the arbitrator named in the agreement without revoking the authority of the arbitrator named in the agreement. In the present case before us the authority of the named arbitrator had been revoked by the Court so it cannot be said that the arbitrator to whom reference was made by the Court was acting without jurisdiction even though we are of the opinion that the authority of the named arbitrator cannot be revoked before a reference is made to him. The Courts have jurisdiction to decide right as well as wrong. We may say that the order of the learned Single Judge in revoking the authority of the named arbitrator before a reference had been made to him, is wrong but .it cannot be said that the order referring the dispute to an arbitrator other than the named arbitrator was without jurisdiction. Our answer to the firs point of reference is that if the authority of the named arbitrator is revoked prior to hiss entering upon the reference and another arbitrator is appointed by the Court, such a course would not vitiate the award subsequently given by the arbitrator so appointed though of course objection can be raised to the validity of the order of reference made to the arbitrator other than the arbitrator named in the agreement.

Point of reference No. 2.‑It was argued by the learned counsel for the respondent that the appellant having furnished a panel‑of names for appointment of an arbitrator, there was a fresh arbitration agreement between the parties ; and that the appellant could not raise any objection to the appointment of the second arbitrator or to his award. Section 2, clause (a) defines "arbitration agreement" to mean a written agreement to submit present or future difference to arbitration where an arbitrator is named therein or not. When the learned Single Judge revoked the authority of the named arbitrator, he called upon the parties to‑furnish a panel of names for appointment of a fresh arbitrator. The appellant, in obedience to the order of the Court, furnished a panel of names. This cannot be, said to be the execution of a fresh arbitration agreement between the parties. Section 2 requires the arbitration agreement to be in writing and where is the written agreement It was laid down in P L D 1959 Kar. 325 that :‑---

"Alteration relating to the appointment of Umpire or arbitrator are alterations of a substantial condition of the agreement and such‑alterations are to be evidenced by writing. That is the demand of section 2 of Arbitration Act. The appointment of an arbitrator or umpire is a matter which pertains to jurisdiction, and when a departure in this respect is made from the written agreement, that departure must be with the consent, in writing, of the parties. Mere submission to the alteration is not enough. It is a material alteration in the agreement and is required to be in writing under section 2 of the Arbitration Act. The umpire who gave the award had no jurisdiction to enter upon the reference and if the parties submitted to his arbitration by conduct, submission did not confer jurisdiction upon him. Submission should have been in writing."

We are in agreement with the learned Judges deciding P L D 1959 Kar. 325 when they say that the material alteration of the agree ment in writing should also be in writing. Section 30 of the Arbitration Act provides that :‑

"An award shall not be set aside except on one or more of the following grounds, namely:

(a)----------------------------------- . . ;

(b)----------------------------------- .

(c) that an award has been improperly procured or is other wise invalid."

The words "or is otherwise invalid" are comprehensive enough to include all kinds of objections. An objection to the validity of the reference to arbitration on the ground that the reference was illegal because of the absence of leave falls within the purview of this clause. Any objection to the award on the ground that it is not an award or on the grounds of its invalidity or on the ground that the Court had no jurisdiction to make the reference should be made at the time the award is filed. Objections which have not been taken before the arbitrator or before the Court after the award has been filed, cannot be allowed to be raised for the firs time in appeal. Where an order directing an award to be filed and a decree in accordance with the award are not separately passed but the Court disposed of the whole case by a single order, the appeal under section 39, clause (vi) of the Arbitration Act shall be held in proceedings to be an appeal from an order directing the award to be filed and competent. It is not right to pass composite orders. The proper procedure is to pas two separate orders and on two separate sheets of paper, one deciding the objections to the award and the other directing a decree to be passed in terms of the award. Section 39 confers a right of appeal against an order refusing to set aside an award. Where a consolidated order is passed and appeal is filed thereon and the order rejecting the objections to the award is challenged, the appeal may be construed as being one against the order refusing to set aside the award. The fact that a decree has been passed does not preclude an appeal against the order refusing to set aside an award.

It was argued by the learned counsel for the respondent that the remedy of the appellant against the order of reference by which the authority of the named arbitrator was revoked and the dispute was referred to Mirza Nazir Hussain Khan as the arbitrator, was by way of an appeal and he could not be allowed to re-agitate the matter at the stage of an appeal from the award. It is, no doubt, correct that a Division Bench of this Court has laid down in Civil Appeal No. 1‑A of 1964 "Azad J. & K. Government v. Shaheen Timber Trading Co." decided on 6‑4‑64 that "the order of a learned Single Judge in so far as it revokes the authority of the arbitrator named in the agreement and appoints another person as arbitrator is appealable under section 13(iii) f the Azad J & K Courts and Laws Code Act because an application made under section 20 of the Arbitration Act is a suit within the meaning of the said section.. But our attention was drawn towards section 105, C. P. C. which provides that .‑

"Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction ; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal."

An error, defect or irregularity in any order may be raised as a ground of objection in an appeal from the decree if such error, etc., should have affected the decision of the case. The words "affecting the decision of the case" mean according to all the High Courts, affecting the decision of the case on the merits. It was laid down in A I R 1939 Sind 241 that :‑

"the validity of an order setting aside an award can be attacked in appeal, under the provisions of section 105."

It was held in A I R 1916 Pat. 21 that :‑

"The acceptance or supersession of an award affects the decision on the merits of the case."

It was held in 1888 Punjab Record No. 134 page 363 (366) (D. B.) that .

"An order directing the filing of an award can be questioned in an appeal against the final decree on ground of absence of agreement to refer."

Our answer to the second point of reference is that objection to the validity of the reference can be raised at the stage of appeal provided it was raised before the learned Single Judge but cannot be raised for the first time in appeal if it was not taken earlier.

Point of reference No. 3.‑It was argued by the learned counsel for the appellant that the omission on the part of the appointed arbitrator to adjudicate on some of the issues framed by him is an illegality which would vitiate the award. On the other hand it was argued by the learned counsel for the respondent that the arbitrator is not bound by the technicality of the law of evidence or procedure ; and that it is not at all necessary for him to decide all issues framed by the Court so long as he decides the whole dispute between the parties. Mr. Siraj ul‑Haq cited A I R 1934 All. 493 which is a Division Bench case and it was laid down in this authority that :‑‑

"Where an arbitrator neglects to consider some of the matters referred to arbitration, he is guilty of an irregularity under Schedule II, rule 14 and the award is vitiated."

On page 494 of this report column 2 it is observed by the learned fudges that:

"Despite the finding of the learned arbitrator that the plaintiff's are not entitled to rendition of accounts in respect of the firms already mentioned by the defendant and his refusal therefore, to consider issue No. 5, he awards sums amounting to about Rs. 4,000, which are sums covered by the defendant's plea of bar".

In their Lordships' opinion, therefore is that the learned Arbitrator had clearly been guilty of an irregularity under rule 14 of Schedule II of the C. P. C. inasmuch as he had left undetermined some of the matters referred to arbitration. The question whether the loan in respect of which he awarded the plaintiffs the sum of Rs. 4,000, were time‑barred, was raised by the parties in issue No. 5. The arbitrator had neglected to consider and decide this issue and their Lordships were, therefore, of the opinion that his award was vitiated by this fact. The learned counsel for the respondent cited A I R 1947 Lah. 177 and A I R 1943 Lah. 186. Rehman, J. laid down in A I R 1947 Lah. 177 that :‑

"There is no rule of law that an arbitrator must decide all the issues framed in the suit expressly as long as the whole suit is decided by him. He is not bound by any rules of procedure or those of evidence, and it is not open to the parties to pick holes in the decision by a tribunal of their own choice on these grounds."

This was a suit for pre‑emption in which one of the issues between the parties was as to the existence of a custom of pre emption. The suit was referred to the arbitrator and the arbitrator decreed the plaintiffs' suit. The learned Judge observed that "the finding with regard to the existence of custom is inherent in the decree in the plaintiff's' favour and no objection can be taken to the award on the ground that the arbitrator had not decided the question as to the existence of custom". It was further held in this authority that "where an appeal is filed from an order disallowing objections to award, objections not raised in the trial Court cannot be taken in the appeal". It was held in A I R 1940 Lah. 186 (D B) that :‑

"An arbitrator is not bound by the technical rules of procedure which the Court must follow, nor need he record separate findings on the various points on which the parties are at issue, or write a reasoned judicial decision. All that he is required to do is to give an intelligible decision which determines the rights of parties in relation to the subject matter of the reference."

It is, no doubt, correct that the arbitrator is not bound by the technicalities of the rules of procedure or of the Evidence Act. It is not necessary for him to frame issues or to give separate findings on all the issues so long as he substantially decides the whole case but where the arbitrator framed issues and chalked out a certain procedure for himself he should follow that procedure and decide the issues so framed though it is not necessary that he should decide all these issues separately and give separate findings but then he should decide all the issues so framed. The learned counsel for the respondent argued that it was wrong to say that the arbitrator had not decided all the issues. He asserted that the arbitrator had decided all the issues. It is for the Division Bench to see whether the arbitrator has decided all the issues or not: We are in respectful disagreement with Rahman, J. when he says that it was not necessary for the arbitrator to decide the question of the existence of the custom of pre‑emption prevailing in the locality. This was a point of dispute between the parties and should have been decided by the arbitrator because on the existence of the custom, the right to pre‑emption depended. In A I R 1940 Lah. 186, in spite of the fact that the issues has been framed by the Court, the parties had executed an arbitration agreement in general terms. Our answer to the 3rd point of reference is that though the arbitrator is not bound by the technicalities of the Law of Evidence or procedure and it is not necessary for him to frame issues or to give separate findings on issues yet if he elects to frame issues, he must decide all these issues though he may not deal with these issues separately or give separate findings.

Point of reference No. 4.‑The learned counsel for the respondent cited A I R 1927 All. 385 (D B) in which it has been laid down that:‑----

"A recital of a receipt in a deed will not operate as an estoppel, under any application of the principle embodied in section 115 (as opposed to the terms of that section) because such recitals do not operate by way of estoppel."

Ashworth, J. held that "under the English Law the General Rule appears to be that a person who is a party to a deed is estopped from denying its contents, but to this general rule there is the exception that a receipt‑in a deed does not amount to an estoppel generally, either at law or in equity". The learned counsel for the appellant argued in favour of the rule of estoppel on the basis of section 115 of the Evidence Act. The preamble to the Evidence Act recites that it applies to all Judicial proceedings in or before any Court but not to an affidavit presented to any, Court or officer, nor to proceedings before an arbitrator. The Evidence Act as the preamble shows was not intended to apply to proceedings before an arbitrator, therefore, our answer to the 4th point of reference is in the negative.

The record shall go back to the Division Bench seized of the appeal.

S. A. H. Reference answered.

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