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J. M. No. 3 of 1974, decided on 30th August 1976.

Ss. 8, 9 & 20-Government Officer appointed as arbitrator urging his Head of Department feasibility of appointing some other officer, as arbitrator-Such officer, however, not having been relieved of duties as arbitrator taking steps to enter upon reference and issuing notices to parties-Held, arbitrator did not act negligently or carelessly for entering upon reference, in circumstances of case. [Arbitrator].

Arbitrator after communicating his refusal to act retracting his refusal before Court passes any order-Authority of such arbitrator, held, does not come to an end.-[Arbitrator].

S. E. Hussaini for Plaintiff.

Haji Muhammad Memon for Defendant.

In terms of final order passed by this Court dated 1-11-1974, a panel of names was supplied by the plaintiff to the defendant for appointment of one of them as arbitrator. In consequence Mr. Noor Muhammad, Superintending Engineer, Highway Circle, Sukkur, was appointed as arbitrator to decide the dispute between the parties. On 2-3-1975, Mr. Noor Muhammad addressed a letter to the Secretary of Government of Sind, Communication and Works Department, Karachi of which he forwarded a copy to the plaintiff wherein he expressed his difficulties in view of the heavy Government work on his hand to undertake the arbitration and requested that the arbitration case may be entrusted to any other Superintending Engineer preferably stationed at Karachi or Hyderabad. Before any further action in the matter could be taken the plaintiff submitted the first application C. M. A. 967/75 in this Court under section 41 of Arbitration Act read with section 151, C. P. C. seeking order for appointment of another gentleman of the rang of Superintending Engineer from the agreed names as sole arbitrator to adjudicate upon the dispute. On 17-6-1975, however, Mr. Noor Muhammad, issued notice to both parties to attend his office at Sukkur on 25-6-1975 for commencement of proceedings. The second - application C. M. A. 1213 of 1975 was thereafter submitted by the plaintiff on 27-6-1975 under section 5 read with sections 8 and 20 of the Arbitration Act, 1940.

Learned counsel or the plaintiff at the commencement of his arguments agreed that the prayer in both applications being substantially the same the second application mentioned above may be heard and disposed of. In these circumstances since he does not press the first application no orders are required to be passed in connection therewith. In support of the remaining application learned counsel for plaintiff contended that the arbitrator had tailed to enter upon the reference with due diligence without a reasonable cause. He submitted that intimation for appointment as arbitrator was communicated to Mr. Noor Muhammad on 19-3-1975 and soon thereafter he notified his inability to act and then suddenly in June 1375 again proposed to commence the proceedings. Accordingly the counsel contended that if the arbitrator intended to accept office it was incumbent upon him to take steps to enter upon the reference within reasonable time and his failure to do sa for nearly three months is sufficient to revoke his authority. Counsel then referred to the explanation appended to section 9 of the Arbitration Act which states that if an arbitrator having been requested by either party to enter upon and proceed with the reference does not do so within one month it may constitute neglect or refusal to act within the meaning of section 8.

Mr. Haji Muhammad Memon, learned counsel appearing for defendant, on the other hand, submitted that Mr. Noor Muhammad had requested the Government to relieve him of the responsibility to act as an arbitrator in this case owing to his pre-occupation with heavy Government work in connection with his normal duties. However, when it was pointed out to him that the arbitration proceedings were to be given preference as they were in consequence of an order of the Court, the arbitrator took steps to enter upon the reference and issued notices to the parties. Counsel, therefore, strongly urged that there was no deliberate negligence on the part of the arbitrator to commence the arbitration proceedings. He further submitted that the explanation to section 9 is not attracted in this case as according to the learned counsel sections 8 and 9 of the Arbitration Act are not applicable in the facts and circumstances of the present case.

I have considered respective contentions of the counsel and have come to the conclusion that this application must fall. The letter dated 22-3-1975 relied upon on behalf of the plaintiff, in my opinion, is not a refusal to act as arbitrator as it is merely a communication by a subordinate officer to the Head of the Department urging the feasibility of appointing another arbitrator. By no stretch of imagination can this be treated as a communication to the parties by the arbitrator refusing to act as such. I have no doubt that the learned Advocate appearing for the Government has stated correctly that consequent to this letter matters were considered and the arbitrator was not relieved of duties to act as such. In these circumstances I' am not satisfied that the arbitrator in any manner has acted negligently or carelessly for entering upon the reference. There is no other allegation against the arbitrator and the fact remains that he was appointed from amongst the panel of names suggested by the plaintiff himself.

Furthermore, there seems to be authority to the effect that if an arbitrator even after communicating his refusal to act retracts his refusal before any orders are passed by the Court, his authority would not come to an end.

In the result I find no merit in the application and dismiss the same.

S. Q. Application dismissed.

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