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High Court Appeal No.11 of 1987, decided on 26th February, 1987.

---S.8--Arbitration--Arbitration clause existing in contract reached by parties for appointment of arbitrators for settlement of claim--On failure of appellant to appoint arbitrator, respondent moving Court for appointment of arbitrator--Court asking appellant to appoint arbitrator but he failed to do so--Court appointing a sole arbitrator- Appellant raising objection to appointment of sole arbitrator by Court--Held, appellant having failed to appoint arbitrator and dispute being pending since long, Court had acted in best interest of justice in appointing sole arbitrator and since appellant himself failed to appoint arbitrator he could not take position that anything wrong had been done by order of the Court.

A . R . Akhtar for Appellant.

--The respondent was a contractor of the appellant and certain work has been granted to him in 1972 out of which a dispute arose and the respondent asked the Chief Engineer to appoint an Arbitrator for the settlement of the claim. The Chief Engineer of the appellant appointed a Superintending Engineer to act as sole Arbitrator on 11-11-79. But the said sole Arbitrator did not work at all and therefore the respondent moved the High Court for removal of the sole Arbitrator. The appellant did not appear in spite of notice and therefore same was granted ex parte and the sole Arbitrator was removed but there was further direction given by the Court to the appellant to file the arbitration agreement in Court and the appointing authority should nominate any Arbitrator in terms of the arbitration clauses within one month. The respondent filed an appeal against that order but it was dismissed on 22-11-83. Meanwhile the respondent had requested the appellant to appoint a sole arbitrator but they did not do so. Ultimately on 12-12-85 the respondent moved for appointment of another sole arbitrator. In view of the fact that the appellants had failed to appoint another arbitrator, although allowed to do so by the Court by its order dated 30-9-81, therefore the Court by its impugned order dated 22-10-86 appointed Mr. Agha Imdad Ali a retired Judge of this Court as sole arbitrator.

Mr. A . R. Akhtar has contended that the order is not in accordance with the contract. We are afraid that the appellant is not entitled to raise submission now of such nature. The appellant itself A had appointed a sole arbitrator to decide the dispute and therefore it is no more open to them to take up the position that two arbitrators were required to be appointed in this matter by the two parties. The appellant has been at failure to get this dispute decided by its own arbitrator namely the Superintending Engineer. The dispute has been pending since 1972 therefore the Hon'ble Single Judge has acted in the best interests of justice by appointing sole arbitrator. The appellants have failed to appoint sole arbitrator in pursuance of the permission granted to them by the Court in its order dated 30-9-1981. It does not lie in the mouth of the appellant to take the position that anything wrong has been done by the learned Single Judge in the impugned order. Accordingly this appeal is dismissed in limine.

M. Y. H./G-48/K Appeal dismissed.

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