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Civil Rule No. 899 of 1963, decided on 15th August 1968.

‑Misconduct of arbitrator-- Non‑consideration by arbitrator of rights of parties based on question of limitation‑No ground of misconduct‑Parties by agree ing to refer dispute to arbitration take matter outside ambit of legal rights.

Non‑consideration of the rights of the parties based on the ground of limitation is not a ground of misconduct of arbitrator. The parties could have obtained a decision on the point from the Court itself. The arbitrator is not the Court. 7 he parties having agreed to refer the dispute to arbitration took the matter outside the ambit of legal rights. Their agree ment to refer the dispute to an arbitrator implies a consent to have the disputes settled without reference to strict legal provi sions.

T. Ali with Abdul Matin Khan Chowdhury for Petitioner.

D. C. Bhattacharjee and Abdur Rab II for the Opposite‑Parties Nos. 1 and 2.

This rule was obtained by defendant No. 1 and is directed against an order of the learned Subordinate Judge, Dacca dismissing an appeal from an order of the learned Munsif, First Court, Dacca rejecting the objection of defendant No: 1 against the award filed by the arbitrator appointed in the suit namely Title Suit No. 2 of 1958 with the common consent of both the parties. It appears that the plaintiff instituted the suit for recovery of Khas posses sion, on declaration of title of the suit land which is described in the Schedule kha' to the plaint which is northern and western part of the C. S. Plot No. 162. The plaintiff's claim was based on purchase by a kobala dated 9‑11‑54. The defendant had claimed that the Schedule kha' land appertained to C. S. Plot No. 161 and not to C. S. Plot No. 162 and that the plaintiff was in possession of the entire C. S. Plot No. 162. The defendant No. 1 claimed that he was in possession of the land of Plot No. 161 from the time of his predecessor adversely to the plaintiff and their vendor for more than 12 years. After framing of the issues a pleader‑Commissioner was appointed who submitted a report that the suit plot appertained to Plot No. 162 and not 161. After the submission of the report the defendant No. 1 filed an additional written statement in which he claimed possession in the suit land for more than 12 years adversely to that of the plaintiff. Thereafter it appears that both the parties by joint petition filed on 14‑2‑1962 appointed Mr. S. K. Khairuddin Vice -Chairman, Dacca Municipality as arbitrator and agreed to refer the dispute and the suit to the said arbitrator for determination and also to abide by the decision and award made by the arbitrator. The arbitrator in his report dated 25‑5‑1962 made an award. The defendant No. 1 filed an objection against the award on the grounds that the arbitrator was guilty of moral and legal misconduct. At the time of argument the lawyer for defendant No. 1 withdrew his objection on the ground of moral misconduct.

It may be mentioned here that the arbitrator did not give the entire suit plot to the plaintiff but devided it and gave a portion to the plaintiff and another portion to the defendant: So far as the legal misconduct is concerned it was alleged that the arbitrator did not consider documents and evidence in making the award. The learned Munsif found from the report that this was not the fact and he dismissed the petition of objection. Appeal was preferred under section 30 of the Arbitration Act. The learned Subordinate Judge who heard considered all the points of objection and dismissed the appeal. Hence this rule was obtained by the defendant No. 1.

The main objection was raised against the award by the petitioner before me as to the fact that the arbitrator did not consider the question of limitation and the extinguishment of the right of the plaintiff by passage of time. This was a reference to arbitration in a suit and is covered by section 21 of the Arbitration Act. The terms of reference are as follows:

"Both parties file a petition and pray for adjournment of hearing of the suit enabling them to compromise the dispute Defts. 2 and 3 also appear by a wokalutnama subsequently this day and thereafter all parties file a joint petition praying for appointing Mr. S. K. Khairuddin, Chairman of Patuatuly Union Council as an Arbitrator and for referring the suit to me for determination and for submission of award. Heard the learned lawyers of both sides. Prayer is allowed. Let the suit be referred to the Chairman and he be appointed Arbitrator as desired by the parties. Write to the Arbitrator accordingly. To. 16‑4‑62 for submission of award. Parties are directed to produce all necessary papers before the arbitrator within 7 days. In the circumstances, the suit is taken of from the peremptory list."

Section 3 of the Arbitration Act gives the implied conditions of arbitration agreements as set out in the First Schedule to the Arbitration Act. The 7th Condition in the First Schedule is to the following effect:

"The award shall be final and binding on the parties and persons claiming under them respectively." When the parties have entered into an agreement for arbitration, they are bound to abide by the award whether the arbitration agreement was in a contract between the parties or whether it arose in the course of the suit. The only remedy open to the aggrieved party is under section 30 which reads follows:

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

(a) that an arbitrator or umpire has misconducted himself or the proceedings;

(b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35;

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

From the above it is clear that the award in this case can be set aside only on the ground of misconduct of the Arbitrator.

Non consideration of the rights of the parties based on the ground of limitation is not a ground of misconduct of Arbitrator The parties could have obtained a decision on the point from the Court itself. The Arbitrator is not the Court. The parties having agreed to refer the dispute to arbitration took the matter outside the ambit of legal rights. Their agreement to refer the dispute to an arbitrator implies a consent to have the disputes settled without reference to strict legal provisions. The award in this case is a very fair one and the defendant ought to be satisfied that he was given at least a portion of the disputed property which was clearly found to be a part of the plaintiffs plots. I find no substance in this rule and therefore discharge the same without any order as to costs.

K. B. A.

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