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Civil Revision No. 281 of 1972, decided on 9th May, 1973.

O. XIX, rr. 1 & 2- Affidavits-Evidence-Court being of view that matter in dispute could be settled by affidavits-Petitioner raising no objection to adoption of such procedure-Petitioner given opportunity and sufficient time to put in counter-affidavit-petitioner neither producing counter-affidavit nor making request to cross-examine respondent-deponent or produce oral evidence - Held : Petitioner cannot take such objection at revisional stage-Petitioner in absence of a specific request seeking attendance of deponent for cross-examina tion, held, can not make grievance of no opportunity to cross-examine witness having been given.-[Affidavit-Cross-examination].

S. 12(2)--Power of appointing Arbitrator according to agreement, held, comes to end as soon as Arbitrator initially appointed.-[Arbit rator].

Asghar Ali Bhalti for Appellant.

Shahid Hussain Kadri for Respondent.

Date of hearing : ,9th May, 1973.

The respondent was given a contract by the petitioner. There is an arbitration agreement in this contract. Certain disputes arose between the parties which were referred to the arbitration of the Chief Engineer, by order of the Court dated the 14th September, 1970. The said Arbitrator entered upon the reference and held a preliminary hearing on the 14th March, 1971. An application under section 5 - of the Arbitration Act was filed by the respondent on the 25th April, 1971, for revocation of the authority of the said Arbitrator and for appointment of another Arbitrator. It was alleged that the Arbitrator had made no secret of his intention to decide the matter against the said respondent. In support of his apprehension, he made the allegations given in paragraph No. 2 of the petition. These allegations are reproduced below :-

"(a) The arbitrator openly said that the agreement is one-sided and the applicant is now at the mercy of the arbitrator whose award may be challenged in a Court of Law and the applicant shall have years of litigation before him in proceeding for setting aside of the award.

(b) The arbitrator threatened the applicant in most crude fashion by uttering words to the effect whether the applicant was willing to do more work with the Railway and also there atoned to blacklist the applicant and to reject or not issue to him at all any future tenders.

(c) The arbitrator said that the Railway 'has a claim of Rs. 28,000 against the applicant towards liquidated damages and threatened that his other payments would be stopped on this score. Applicant has now learnt that payment has actually been stopped on his orders.

(d) The arbitrator jeered at applicant's claim by offering withdrawal of Railway's claim of alleged liquidated damages in case the applicant abandons his claim.

(e) The arbitrator had his personal case for extension of service pending decision with the Government and said that he was not ready to annoy the Administration by granting applicant his claim.

2. This petition was contested by the petitioner who denied the allegations made in the said petition. The respondent had filed an affidavit in support of his petition. On the 11th December, 1971, the learned Civil Judge gave an opportunity to the petitioner also to file by the 18th of December, 1971. No such affidavit was filed. The parties argued the matter on the basis of the existing record. The learned Civil Judge held that the allegations levelled against the Arbitrator were proved by the unrebutted testimony in the form of affidavit given by the respondent. As a result of this finding, he revoked the authority of that Arbitrator and directed the parties to submit their lists of persons out of whom one may be appointed as an Arbitrator to enter upon the reference. Hence this revision petition.

3. The learned counsel for the petitioner contended that -

(i) the petitioner should have been afforded an opportunity to cross examine the witness who had submitted the affidavit and further opportunity should have been given to the petitioner to produce oral evidence ; and

(ii) the powers to appoint an Arbitrator are vested in the Vice-Chairman of the P. W. R. and the Court had no jurisdiction to make appoint ment of another Arbitrator.

4. None of these contentions have any force. Order XIX, rules 1 and 12 are relevant in this connection. Rule 1 provides that "any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable". There is a proviso attached to this rule which says that "where it appears to the Court that either party bona fide desires the production of a witness for cross examination, and that such witness can be produced an order shall not be made authorising the evidence of such witness to be given by affidavit". Rule 2 provides that "upon any application evidence may-be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent". It is apparent from the record that the Court was of the view from the very start that the matter in dispute could be settled by affidavits of the parties. None of the parties raised any objection to the adoption of this procedure. An opportunity was t given to the petitioner to put in a counter-affidavit and sufficient time was granted for this purpose. But the petitioner failed to produce any counter. affidavit. No request for further adjournment of the case to enable the petitioner to file an affidavit or to cross-examine the respondent-deponents or to produce any oral evidence, was made. It is not, therefore, open to the petitioner to take all these objections at this stage, particularly when it was within the discretion of the Court to direct that a particular fact may be proved by affidavit. Sub-rule (1) of rule 2 confers power upon the party to, seek the attendance for cross-examination of the deponent but for this a specific request has to be made. In the absence of any request to this effect the petitioner cannot make a grievance that be was not afforded an opportunity to cross-examine the witness.

5. The power to appoint another Arbitrator is conferred by section 12(2) which reads as follows :-

"Where the authority of an arbitrator or arbitrators or an umpire is revoked by leave of the Court, or where the Court removes an umpire who has entered on the reference or a sole arbitra tor all the arbitrators, the Court may, on the application of any party to the arbitration agreement, either -

(a), appoint a person to act as sole arbitrator in the place of the person or persons displaced, or

(b) that the arbitration agreement shall cease to have effect with respect to the difference referred."

It is, therefore, clear that the power to appoint an Arbitrator vested by the agreement in the Vice-Chairman comes to an end as soon as an Arbitrator is initially appointed.

6. There is no merit in this revision petition which is hereby dismissed with costs.

K. M. A. Appeal dismissed.

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