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Civil Revision Petition No. 37 of 1954, decided on 23rd July 1954 under section 115, Civil P C. for revision of the order of Sheikh Ata Ullah, District Judge, Rawalpindi, dated the 25th November 1953, reversing that of Sheikh Iqbal Ahmad. Senior Civil Judge, Rawalpindi, dated the 31st January 1953.
, Schedule 1 para. 2 read with section 8‑Arbitrators failing to appoint umpire within one month‑Award not necessarily vitiated.
A mere failure by the arbitrators to appoint an umpire within one month as required by para. 2 of Schedule I Arbitra tion Act (X of 1940) does not take away the jurisdiction of the arbitrators to make an award. There is no express provi sion laying down that the arbitrators should not make an award unless they have already appointed an umpire, or that the proceedings will be vitiated if the arbitrators do not make an appointment. Such an interpretation would be inconsistent with section 3.
Ebrahim Ahmad v. Sind Hosiery of Textile Mills P L D 1952 Sind 52 and Jawala Prasad v. Amar Nath A I R 1951 All. 474 dissented from.
Chooni Lai v. Madhoram and others I L R 36 Cal. 388 not of any great help.
‑Contents‑Should state at least conclusions on points referred if not reasons for such conclusions.
Although the arbitrators are not bound to state reasons .for their conclusions they must at least state their conclusions on the point or points in dispute.
, Ss. 16, 17 and 30‑Re mitting award for re‑consideration under S. 16 discretionary‑ Award not remitted for re‑consideration‑Court not bound to pass decree in accordance with award‑Arbitrators not deciding points in dispute but passing a kind of compromise order, and giving decision on an extraneous matter not referred to arbitration ‑Award to be set aside.
The provision made by section 16 of the Arbitration Act for remission of an award for re‑consideration is discretionary and not obligatory:
The Court is not bound to pass a decree in accordance with the award which suffers from one of the defects mention ed in section 16‑defects for which the Court may remit the award for re‑consideration. If the Court does not remit the award for re‑consideration, it has power to set aside the award under section 30.
If. the arbitrators, instead of deciding the matter in dispute, pass a kind of compromise order which they were not entitled to pass, or, impart extraneous matters not referred to arbitration and give decisions thereon, the award may be rightly set aside by the Court.
Choohur Singh v. Jeet Singh and Chunda Singh 64 P R 1870 (F. B.), Sita Ram v. Dhani Ram 92 P R 1903 Sant Singh and others v. Jiwan Singh 41 P 81905 and Nawab Din v. Abdur Rashid P L D 1954 Lah. 58 ref.
Firm N. D. Jaggi & Co. v. Firm Ganga Ram Vishendas A I R 1924 Sind 132 ; Hari Singh T(ehal Chand v. Kankinarah Co. Ltd. A I R 1921 Cal. 657 ; Crompton & Co. Ltd. and Mohan Lai Re: Arbitration between I L R 41 Cal. 313 and Messrs. Louis Dreyfu.s df Co. v. R. K. Rajagopala Aiyar df Bros. A I Muhammad Yaqub Ali Khan for Petitioner. Ghias Muhammad for Respondents.
--‑The facts relating to this civil revision are a little complicated. One Sohnay Khan sold some land in favour of Captain Muhammad Alam, but instead of their being one mutation, there were two mutations, one of sale of proprietary rights to Captain Muhammad Alam and another of creation of occupancy rights in favour of Muhammad Akram Khan and Muhammad Afzal Khan, sons of Captain Muhammad Alam, the total consideration for both being Rs. 600. Two suits were filed to pre‑empt the sale, which had been split up into two transactions. The first suit was filed by Muhammad Rafiq, son of Sohnay Khan vendor, and the second by Balawal Khan, brother of the vendor. On the 15th of Novem ber, 1946 both these suits were decreed. Muhammad Rafiq was granted by the decree the first option to deposit the sale price and if he made a default then Balawal Khan was entitled to make a deposit and get a decree. On the 15th of March 1947 Muhammad Rafiq did deposit the sale price and even a muta tion was sanctioned in his favour. He did not, however, take out any execution. Some other land of Sohnay Khan was mortgaged in favour of Captain Muhammad Alain for a sum of Rs 1,000. Captain Muhammad Alam did not take posses sion of that land but continued in possession of the land which had been sold and pre‑empted. It is alleged by Sohnay Khan and Balawal Khan that Captain Muhammad Alam received a sum of Rs. 600 from the mortgagor Sohnay Khan and gave up possession of the pre‑empted property but took possession of it again by force. On 25th April 1950 Muhammad Rafiq .got a mutation of gift of the pre‑empted property sanctioned in the name of his father, Sohnay Khan. Sohnay Khan in turn exchanged the land with his brother, Balawal Khan. Balawal Khan called upon Captain Muhammad Alam to hand over possession of the pre‑empted land but he refused.
This situation gave rise to two suits. The first is a suit filed by Captain Muhammad Alam and his sons against Muhammad Rafiq, Sohnay Khan, Balawal Khan and" Khar: Muhammad for a declaration that Captain Muhammad Alam was owner and his sons the occupancy tenants of the pre empted land because Muhammad Rafiq had failed to execute his decree. An injunction is also prayed for prohibiting the defendants from interfering with the plaintiffs' possession. This is suit No. 15 of 1952. The second suit, No. 24 of 1952, is filed by Balawal Khan for possession of the land in dispute on the allegation that Muhammad Rafiq had by pre‑emption acquired the rights of ownership in this land but he had gifted this land to his father Sohnay Khan and that Sohnay Khan having in turn exchanged this land with him he .is entitled to its possession. Both these suits were consolidated and on the 6th of November 1952 the parties to both the suits entered into an agreement referring all matters in dispute to the arbitration of Mr. Mahmud Ahmad Minto and Maulvi Siraj ul‑Haq, Advocates. The arbitrators delivered a unanimous award as follows (1) Captain Muhammad Alam shall pay Rs. 2,500 to Balawal Khan within three months and on his paying this sum his suit shall stand decreed and Balawal Khan's suit shall stand dismissed; (2) if the amount is not paid by Muhammad Alam, the suit of Muhammad Alam shall stand dismissed and that of Balawal Khan shall stand decreed ; but Balawal Khan shall have to pay Rs. 600 to Muhammad Alam before he is entitled to take possession of the land; and (3) the land given by Sohnay Khan and mortgaged to Muhammad Alam shall stand redeemed.
Muhammad Alam and his sons as well as Balawal Khan objected to the award. Muhammad Alam objected that (P L D 1952 Sind 52) the arbitrators had not appointed an umpire within the period of one month; (2) the arbitrators did not decide all matters referred to them; (3) the arbitrators failed to adjudi cate on the rights of plaintiffs Nos. 2 and 3, that is the sons of Muhammad Alam and (4) the mortgage of the land by Sohnay Khan in favour of Muhammad Alam was not the subject matter of the dispute which had been referred to arbitration and there could be no award with regard to that land. The objection of Balawal Khan was that he should not have been ordered to pay Rs. 600. Both parties asked that the award be set aside. The learned Senior Civil Judge, who was trying the two suits, refused to give effect to the objections of either party and passed a decree in terms of the award. Against this order there was an appeal to the District Judge, Rawal pindi, who disagreeing with the trial judge gave effect to the three following objections of Captain Muhammad Alam :‑
(1) That the arbitrators failed to appoint an umpire within one month of their appointment.
(2) That the arbitrators failed to consider the real point in dispute and had brought into their discussion a matter extraneous to the suit which had not been referred to them.
(3) That the arbitrators failed to adjudicate on the, rights of plaintiffs Nos. 2 and 3, who are the sons of Muhammad Alam.
The second objection, it may be mentioned, relates to the land which had been mortgaged by Sohnay Khan in favour of Muhammad Alam.
Against the order of the learned District Judge, Balawal Khan has filed the present revision petition. Learned counsel for the petitioner contends that none of the three points, on the basis of which the award has been set aside by the learned District Judge, constitutes a valid objection and in any case even if there did exist a valid objection, the award ought to have been remitted to the arbitrators for consideration and should not have been wholly set aside.
As regards the first objection, namely, that the arbitrators had not appointed an umpire within one month of their appointment, the lower Court had relied on Ebrahim Ahmad v. Sind Hosiery & Textile Mills (E1 I R 1951 All 474) which relies in turn on Jawala Prasad v. Amar Nath (1) and Chooni Lai v. Madhoram and others (I L R 36 Cal. 388). Learned counsel for the petitioner contends that it is only in cases where there is difference of opinion amongst the arbitrators that the need of an award by the umpire arises and that the failure to appoint an umpire within one month can have no effect' where the arbitrators are agreed. It will be convenient to quote here the relevant statutory provisions i.e. sections 3 and 8 of the Arbitration Act and para. 2 of Schedule I. They are :‑
"3. An arbitration agreement, unless a different inten tion is expressed therein, shall be deemed to include the provisions set out in the First Schedule in so far as they are applicable to the reference.
Para 2. If the reference is to an even number of arbitra tors, the arbitrators shall appoint an umpire not later than one month from the latest date of their respective appointments.
Section 8.(1) In any of the following cases:‑
"(a) 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
(b) If any appointed 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
(c) where the parties or the arbitrators are required to appoint an umpire and do not appoint him ; 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 in supplying the vacancy.
(2) 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 the notice and after giving the other parties an opportunity of being heard, appoint an arbitrator or arbitrators or umpire, as the case may be, who shall have like power to act in the reference and to make an award as if he or they had been appoint ed by consent of all parties".
I have deliberately quoted section 8 after para. 2 of the Schedule, for that is the proper sequence in which the provi sions should be read for the purpose of the question before me.
It will be observed that para. 2 gives a direction to the arbitrators to appoint an umpire within one month. If they fail to do so a party to the nitration ma; require the arbitra tors by virtue of clause of subsection (1) of section 8 to make an appointment. In that case the arbitrators will again have the power to make an appointment within 15 days of the receipt of notice. This is necessarily implied in section 8, To remove any doubt as to this matter, I would point out, that the power of the Court to appoint the umpire arises only if after a notice the arbitrators fail to make an appoint ment, and the Court can make the appointment only on the application of the party who served the notice. That the Court has power to make an appointment cannot be doubted and before the Court has such power there must be power in the party to serve a notice and a power in the arbitrators to make the appointment. Under clause (c) of subsection (1) of section 8 the party cannot serve a notice on the arbitrators to make an appointment unless they do not appoint them and this can be said to happen only if the period of appoint ment has expired. Before the expiry of this period there is no failure on the part of the arbitrators and the right of the party to serve a notice does not arise. If the right by the party to serve a notice arises only on the expiry of the period of one month, it is obvious that the arbitrators will have power to appoint the umpire even after the expiry of one month and within fifteen days of notice from a party. So far as the Court is concerned, there is no period to which its power of appointment may be limited but the appointment depends on the discretion of the Court.
Prima facie there is nothing in the provisions quoted above to justify the inference that a mere failure by the arbitrators to appoint an umpire will take away the jurisdiction of the arbitrators to make an award. There is no express provision laying down that the arbitrators should not make an award unless they, have already appointed an umpire, or that the pro ceedings will be vitiated if the arbitrators do not make an appointment. Such an interpretation would be inconsistent with section 8. Suppose the party did give a notice' after the expiry of one month and either the arbitrators made the appointment or the Court on the application of the party made the appointment, would then the authority which the arbitra tors had lost be revived If the arbitrators delivered an agreed award after a period of one month without making an appointment, should a party give notice for appointment of an umpire or get an umpire appointed by Court, although there being no disagreement no umpire is needed Will the award become valid if the appointment is made, though the appointment is otherwise without any object It seems to me that section 8 takes the bottom out of the argument based on the failure to appoint an umpire.
So far as the authorities quoted above are concerned, I do not find them to be of any great help. In Chooni Lai v. Madho Ram and others the arbitration agreement was governed by the Rules of the Bengal Chamber of Commerce, which provided that before the arbitrators entered upon the reference they had to appoint an umpire. It was held that the arbitral tribunal had not been properly constituted on account of the failure to make an appointment of the umpire. The following paragraph of the judgment will show the conclusion arrived at by the learned judge:‑
"In my opinion the argument of Mr. Buckland is well founded. I think that the subsequent rules clearly show that the rules do not contemplate the umpire being appoint ed on the disagreement of the arbitrators, but on the other hand contemplate the umpire being appointed before the arbitrators enter upon the reference".
In Jawala Prasad v. Amar Nath no doubt the facts of the case are similar to those of the present, but the only reason for finding that the award was vitiated by the failure of the arbitrators to appoint the umpire is that the provisions of para. 2 of Schedule I are mandatory. Ebrahim Ahmad v. Sind Hosiery & Textile Mills follows Chooni Lal v. Madoram and others and Jawala Prasad v. Amar Nath. Neither in Ebrahim Ahmad v. Sind Hosiery of Textile Mills nor in Jawala Prasad v. Amar Nath is there any reference to section 8 or to the distinction between cases under the Arbitration Act of 1940 and cases where before entering upon a reference the arbitra tors are bound to appoint an umpire. In the last‑mentioned clause of cases, if there be at the same time no machinery for the appointment of an umpire if the arbitrators fail to appoint one, there is good ground for the argument that the arbitral tribunal is not properly constituted arid the proceedings in arbitration cannot, therefore, be effective. In Chooni Lal v. Madho Ram and others, as I have already stated, the rules which governed the arbitration agreement necessitated the appointment of an umpire before entering on the reference. There is an English case relied upon in that judgment in which it had been held that "if the umpires do not make an appoint ment, they cannot be forced to do so". This would imply that in that case there was no other machinery for the appoint ment of an umpire. Chooni Lal v. Madho Ram and others was followed in Ebrahim Ahmad v. Sind Hosiery c Textile Mills without a reference to these points of distinction. With all respect I cannot agree with the view taken in Jawala Prasad v. Amar Nath and Ebrahim Ahmad v. Sind Hosiery of Textile Mills. I find no force in objection No. 1.
The second and the third objections to the award have, however, force. The real point which the arbitrators had to decide was whether on account of Muhammad Rafiq's failure to execute the pre‑emption decree, Muhammad Rafiq lost all rights in the preempted land and Captain Muhammad Alain and his sons retained their rights as owner and occu pancy tenants. This point the arbitrators did not decide. The award gives no reasons for the decision and simply states the decree that the arbitrators are passing. (I call it a decree because the operative part of the award is to be the basis of a decree). Although the arbitrators are not bound to state reasons for their conclusion they must at least state theirs conclusion on the point or points in dispute. The decree which they have passed shows that they had not decided the point in dispute at all. If Muhammad Alam was the owner of the property the question of his paying Rs. 2,500 did not arise. If, on the other hand; he was not the owner of the property, the arbitrators could not grant him possession on payment of any sum, for it was not the plea of Muhammad Alam that even if he was not found to be owner he should have, for some reason, to be given possession of property on payment of any sum. Instead of deciding the matter in dispute the arbitrators have passed a kind of compromise order, which they were not entitled to pass.
The arbitrators have also ordered that the mortgage in favour of Captain Muhammad Alam should stand redeemed, a matter which was not the subject‑matter of either of the two suits and which had not been referred to arbitration. Learned counsel for the petitioner urges that the award, in so far as it relates to the mortgage, is separable. I do not see how the Court can separate it. Whether Captain Muhammad Alam pays Rs. 2,500 or not the mortgage is to stand redeemed.
The award makes no reference to the rights of the sons of Captain Muhammad Alam. It is all very well to say that Captain Muhammad Alam and his sons are really one person but in law they are not, and the sons are entitled to have their rights adjudicated. The award makes no reference to them at all.
Learned counsel for the petitioner contends that even if second and third objections be good the award could not be set aside on these grounds and the only jurisdiction possessed by the Court was to remit the award for reconsideration of the arbitrators. Reliance is placed in this connection on sections 30, 16 and 17 of the Arbitration Act, which I quote below:‑
Section Section 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 misconduct 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:
Section 17. Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of, or not other wise in accordance with, the award.
Section 16. (1) The Court may from time to time remit the award or any matter referred to arbitration to the arbitra tors or umpire for reconsideration upon such terms as it thinks fit‑
(a) where the award has left undetermined any of the matters referred to arbitration or where it determines any matter not referred to arbitration and such matter cannot be separated without affecting ‑ the determination of the matters referred; or
(b) where the award is so indefinite as to be incapable of execution; or
(c) where an objection to the legality of the award is apparent upon the face of it.
(2) where an award is remitted under subsection (1) the Court shall, fix the time within which the arbitrator or umpire shall submit his decision to the Court Provided that .any time so fixed may be extended by subsequent order of the Court.
(3) An award remitted under section (1) shall become void on the failure of the arbitrator or umpire to reconsider it and submit his decision within the time fixed."
Under section 30 an award can be set aside only if it is covered by clause (a) or (b) of the section or is otherwise invalid. Under section 17, if it is not found to be invalid a decree must be passed in accordance with it. Under section 16 it could be remitted for reconsideration if it suffers from any of the, defects mentioned in that section. Learned counsel for the petitioner argues that a defect of the kind mentioned in section 16 does not make the award invalid and that the decree must be passed on its basis unless it is remitted. According to learned counsel, there are three kinds of awards:‑
(1) valid;
(2) invalid; and
(3) those which are neither, valid nor invalid and are liable to be remitted.
I have no hesitation in repelling the contention of learned counsel. An award which is not valid must be invalid. There is no third category. The legislature has conferred a jurisdiction on the Court to get the defects in some of the invalid awards cured i e., if the defect is covered by the provisions of section 16. It will be observed that in the Arbitration Act of 1899, there was no limitation on the power of the Court to remit the award. It could be remitted for reconsideration whatever the defect in the award. Section 13 of the Act of 1899, for which the present section 16 has been substituted, ran thus
" (1) The Court may, from time to time, remit the award to the reconsideration of the arbitrators or umpire.
(2) Where an award is remitted under subsection (1), the arbitrators or umpire shall, unless the Court otherwise directs, make a fresh award within three moths after the date of the order remitting the award."
Under this section the Court had power to remit the award whatever the defect from which it was suffering though in practice awards were remitted to an arbitrator who had acted mala‑fide. The jurisdiction to remit the award, however, was there and it had been held in a Number of cases that if the misconduct of the arbitrator be of a technical kind the award could be remitted for reconsideration vide, Firm N. D. Jaggi & Co. v. Firm Ganga Ram Vishendas (A I R 1924 Sind 132); Hari Singh Nehai Chand v. Kankinarah Co. Ltd. (A I R 1921 Cal. 657 ), Crompton & Co. Ltd. and Mohan Lal Re. Arbitration Between (1 L R 41 Cal. 313) and Messrs. Louis Dreyfus & Co. v. R. K. Rajagopala Aiyar & Bros. (A I R 1923 Mad. 222). In these cases it had been assumed, as is expressly stated in Hari Singh Nehai Chand v. Kankinarah Co. Ltd., that" the Court has authority either to set aside the award or to remit it to the arbitrators." The Arbitration Act is based on the English Law of arbitration (which is now consolidated in the Arbitration Act of 1950, (14 George VI, Chapter 27) and so far as the law in England is concerned, there can be no doubt that setting aside and. remission are regarded as alternative courses to be adopted with respect to invalid awards. It is sufficient to quote here the following extracts from Russell on Arbitration, (page 263 of 1952 Edition):‑
" The Court has a general discretion to remit an award to the reconsideration of the arbitrator or umpire. This discretion is in general exercisable upon substantially the same grounds as will justify the setting7aside of an award.
Thus the grounds for remission have been stated as follows:‑
(1) Where the award is bad on the face of it;
(2) Where there has been an admitted mistake and the arbitrator himself asks that the matter may be remitted;
(3) Where there has been misconduct on the part of the arbitrator; and
(4) Where additional evidence has been discovered after the making of the award."
In a case decided before the 1889 Act, the grounds of review of an award were stated to be corruption or fraud', error appearing on the face of the award, mistake admitted by the arbitrator and accompanied by a request for review and excess of jurisdiction; but in so far as that case suggests that corruption on the part of an arbitrator would be a ground for remission, it is submitted that it would not be followed. It is difficult to conceive a case where an award would be remitted to an arbitrator against whom, for instance, a charge of fraud had been made. In such a case it would be more grope; that the award should be set aside indeed setting aside has been held to be the correct remedy even where the arbitrator had‑ acted bona‑fide, the complaint made against him being such that it is probable that his mind will be prejudiced against the party applying for the remission.
Both remedies are discretionary; and in considering cases upon remission in particular it should be remembered that the section gives the Court a complete discretion in the matter.
The cases merely illustrate how in particular instances the Courts have exercised their discretion. Counsel for the railway company seem to me to treat the authorities they relied upon as though they cut down the jurisdiction of the Court. The jurisdiction of the Court is statutory, and cannot be increased or cut down in that way. The reported decisions of the Court only show the principles, which have guided the Court from time to time in exercising its jurisdiction, and, though they may afford a valuable guidance, they do not restrict either the jurisdiction of, the Court in deciding other cases, or the duty of the Court to look at the facts in each particular case.
It will be observed that even in the case of misconduct a jurisdiction to remit exists.
As I have explained in Nawab Din v. Abdur Rashid (1) the power to remit an award was granted to the Courts in England by section 8 of the Common Law of Procedure Act of 1854. Before that it had been held that there was no power in the Court to refer the award back to the arbitrators for consideration in cases where there was no such provision in the agreement of arbitration. As a result, all awards, which can now be remitted, were set aside on the ground of invalidity.
If, I were to accept the argument of learned counsel for the petitioner then, even if the award were to result in a decree, which would be, on the face of it, illegal, for instance, a decree of a kind which neither Court nor arbitrator could pass, the award would be valid and a decree would have to be passed. The award might grant a decree for the custody of the wife to the husband. It may pass a decree for the defendant being subjected to physical violence. Still, accord ing to learned counsel, the award would not be invalid, though it could be remitted for it would be covered by clause (c) of section 16 (PLD 1954 Lah.58).
A simple reply to the argument of learned counsel on this point is that the provision for remission is discretionary and not obligatory, as was held in Choohur Singh v. Jeet Singh and C Chunda Singh (64 P R 1870(FB)); Sita Ram v. Dhani Ram (92 P R 1903) and Sant Singh and others v. Jiwan Singh (41 P R 1905). These judgments imply that the award which is not remitted is being set aside. In any case, if we interpret section 16 as discretionary there is an end of the argument of learned counsel. According to him, a decree must be passed on the basis of every award which is not set aside and only an invalid award can be set aside. So, according to learned counsel, if the Court does not think it fit to remit the award for reconsideration the result would be that a decree would have to be passed. This position is wholly untenable.
Also, suppose the arbitrator to whom an award is being remitted continues making awards which are covered by some clause of section 16, what is the Court to do except to set aside the award It cannot go on remitting the award to the arbitrator ad infinitum.
I am, therefore, of the opinion that the award was properly set aside. Before concluding I have to mention that the respondent cited a number of cases laying down that revision does not lie when the Court, after considering the objections to an award, has set it aside though in doing so it may have reached some wrong conclusion of law or fact. It is not necessary for me to go minutely into the matter as I have found the award to be invalid. I may point out, however, what I regard to be the general principle applicable. Conclusions of law or fact are not per se grounds for revision. But if a Court misinterprets the law relating to its own jurisdiction with the result that while under the law it ought to have proceeded under the provisions relating to arbitration, it wrongly tries the case on merits, that would be a good ground for revision.
This application for revision fails and is dismissed with costs.
A.H.
Petition dismissed.
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