P L D 1958 Supreme Court (Pak (PLP)

(i) Arbitrator‑Getting test made by another of cement used in building‑Not delegation of duty by arbitrator. Muhammad Shafi, Advocate, Supreme Court, instructed by S. Virasat Hussain, Attorney for Appellant. Faiz Muhammad, Advocate‑General, West Pakistan (M. Z. Kitchlew, Advocate, Supreme Court) instructed by Zahir Abbas, Attorney, for Respondents. Dates of hearing: 12th and 13th February 1958. SHAHABUDDIN, A. C. J. ‑Appellant Muhammad Saghir Bhatti & Sons entered into a contract with the respondents, Ordnance Factories Wah through Engineer‑in‑Chief, Pakistan G. H. Q. Branch Rawalpindi Cantonment, to construct 57 blocks of `G' class quarters at Wah, District Campbellpur, and one of the conditions of the contract was that disputes between the parties should be referred to a sole arbitrator not below the rank of Colonel nominated by the Quarter Master General Pakistan. The arrange ment was that the material for construction should be supplied by Government and its price deducted from the amount to be paid to the appellant. The case of the appellant was that Government paid him a sum of Rs. 5,40,000, but there was still due to him Rs. 2,77,823 in view of certain constructions which he made under instructions of Government but which were not originally detailed in 'the estimate. He; therefore, claimed the above amount which was not admitted by the respondents and a dispute having thus arisen, the Quarter Master General appointed one Brigadier Muhammad Anwar Khan on the 12th May 1952 as the sole arbitrator. But on 24th July 1952 this appointment was cancelled and Col. Jamaluddin Farooqi was appointed as arbitrator. Then on 2nd December 1952, Col. Farooqi was replaced by Brig. Muirhead, who held the enquiry and awarded the appellant on 22nd July 1953 Rs. 15,965 in full settlement of all the matters referred to arbitration. This award was filed in the Court of the Senior Civil Judge, Rawalpindi and the appellant raised several objections to it. The Senior Civil Judge returned the award to the arbitrator for reconsideration and redrafting observing that it mentioned only the amount held to be payable by the respondents to the contractor and did not contain either the points for determination or the reasons for the decision. The arbitrator thereupon re‑submitted the award stating that he had reconsidered it and that as regards the reasons for the finding arrived at by him, he had based his award on a careful consideration of, the facts adduced in the evidence given before him and the submissions made to him by each of the parties to the dispute. He attached to the award a statement giving the details of the matters in dispute between the parties. After receiving this award the Senior Civil Judge proceeded to consider the objections which were to the effect that the arbitrator examined witnesses during the absence of the appellant, that he neither recorded what the witnesses stated nor maintained minutes of the proceedings that he did not afford adequate opportunity to the appellant to prove his case, that he often exhibited his partiality in the conduct of arbitration pro ceedings and passed remarks expressing opinions against the appellant and that the award was not based upon any data and he did not give serious thought to the points in dispute. In connection with these objections the arbitrator was examined as a Court witness while the appellant examined himself and one witness. After considering the various objections with reference to this evidence the Senior Civil Judge came to the conclusion that there was no force in them. He, therefore, overruled them and passed a decree for the amount awarded by the arbitrator in favour of the appellant and against the respondents and directed the parties to bear their own costs. The appellant appealed to the High Court, but that appeal was dismissed in limine; and this is an appeal by special leave from the judgment of the High Court. The contentions for the consideration of which leave was granted are (1) that the judgment of the High Court was illegal as it did not indicate the points arising for determination or reasons for the conclusion, (2) that under the agreement between the parties the Quarter Master General had power only to appoint an arbitrator and not to remove him at his mere will or pleasure and A then to go on appointing one arbitrator after another without making a reference to Court, (3) that the time for submitting the award could be extended only by the Court having jurisdiction while the application for time was made to the District Judge and (4) that the award which was remitted to the arbitrator by the Court as it was indefinite did not determine any of the matters in dispute and the arbitrator instead of complying with the order of the Court returning the award resubmitted it merely adding to it a schedule showing the particulars of the claim made by the appellant. The first contention of Mr. Shafi who appeared for the appellant was that there was no valid judgment of the High Court disposing of the appeal of the appellant and that the case should be remanded for rehearing and disposal according to law. His argument was that even with regard to a dismissal under Order XLI, rule 11 of the Civil P. C., the High Court should write a judgment which complies with rule 31 of Order XLI, which is as follows; "The judgment of the Appellate Court shall be in writing and shall state‑ (a) the points for determination ; (b) the decision thereon ; (c) the reasons for the decision ; and, (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled ;" and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein". In support of the contention that this rule applies to a dismissal under rule 11 relince was placed by the learned advocate on Hari Dasi Devi v. Gadadar Roy and another A I R 1926 Cal. 992, Hanmant valad Rakhmaji v. Annaji Hanmanta I L R 37 Boni. 610 and Durga Thathera v. Narain Thathera and another 1 L R 54 All.

220. In these cases the judgments that came up for criticism were those of the subordinate Courts. In the Calcutta case it was held that the District Judge in summarily dismissing an appeal under rule 11 was not relieved of the necessity of writing a judgment as prescribed by rule 31 and that though it need not necessarily be a very full judgment, the requirements of rule 31 must be satisfied. In the Bombay case a reference to a Full Bench was made as a prior decision of that Court in Tanaji Dagee v. Shankar Sakharam 1 L R 36 Bom. 116, which had held that in dismissing an appeal under Order XLI, rule 11 it was not obligatory upon the lower Appellate Court to write a judgment was contrary to the practice and the circular issued by that High Court to its subordinate Courts. The Full Bench in I L R 37 Bom. 610 held that the practice as laid down in the circular should prevail. But in the Allahabad case a Full Bench dealt with the point on its merits and held that compliance with the provisions of rule 31 was required though a non‑compliance with the strict provisions of rule 31 may not vitiate the judgment and make it wholly void, and that the irregularity may be ignored, if there was a substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. The learned Advocate-General on the other hand drew our attention to a decision of Patna High Court in Makhu Sahu and another v. Kamta Prasad and others A I R 1934 Pal. 341, which is to the effect that rule 31 applies only to those cases which have been heard after sending for the record and not to the earlier portion of Order XLI, wherein rule 11 occurs. But as indicated already, none of these decisions dealt with the question whether the rule applied to the High Courts. Such a question could not naturally arise before the High Courts and our attention was not drawn by either side to any decision of the Privy Council wherein the question was considered with reference to the High Courts. Strictly speaking, there should be no difference between a High Court and Courts subordinate thereto in this matter, unless the rules and orders are amended by the High Court concerned with the permission of Government. However, the question need not be decided in the present case as in view of the observations of their Lordships of the Privy Council in respect .of rule 31 in Gokal Chand‑Jagan Nath v. Nand Ram Das‑Atma Ram 66 1 A12, the non‑compliance with that rule cannot be said to render the judgment void. In 66 Indian Appeals, one of the points raised by the appellants before their Lordships was that the judgment of the High Court appealed from was not valid judgment because it failed to comply with Order XLI, rule 31 of the Code of Civil Procedure. The relevant facts on this point were that the judgment was delivered by two Judges who heard the appeal, but one of them went on leave before signing the judgment and the appeal bore only the signature of one of the Judges. Their Lordships in dealing with this question observed as follows "Order XLI, rule 31, requires that the judgment of the Appellate Court shall be in writing, and shall state various matters, and `shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein'. "The rule does not say that, if its requirements are not complied with, the judgment shall be a nullity. So startling a result would need clear and precise words. Indeed, the rule does not even state any definite time in which it is to be ful filled. The time is left to be defined by what is reasonable. The rule from its very nature is not intended to affect the rights of parties to a judgment. It is intended to secure certainty in the ascertainment of what the judgment was. It is a rule which Judges are required to comply with for that object". But having regard to the contention raised in this case the learned Judges should have indicated briefly their reasons for dismissing a first appeal which is an appeal on facts also, as it is a matter of public policy that justice should not merely be done but should appear to be done. In the normal course we should have felt it our duty to remit the case to the High Court for a rehearing, but n in view of the extent of arguments presented to us which were sufficient to enable us to confirm the correctness of the dismissal in relation to the questions arising in the case we do not propose to follow that course. The next contention of Mr. Shafi was that the appointment of the arbitrator who gave the award was not according to the Act, as the Court's permission was not obtained for the purpose. In this connection he relied on section 5 of the Arbitration Act which is to the effect that the authority of an appointed arbitrator or umpire shall not be revocable except with the leave of the Court, unless a contrary intention is expressed in the arbitration agree ment. The argument was that after the first arbitrator was appointed Quarter Master General had no power to make without the permission of the Court, another appointment; but the appellant did not raise this objection at the time the third arbitrator started holding the enquiry. In the circumstances the appellant must be deemed to have agreed to the appointment of Mr. Muirhead as the Arbitrator. It was then argued that the agreement was that the Quarter Master General should nominate the arbitrator; but it was the Acting Quarter Master General who made the appointment. There is no force in this contention. The agreement between the parties being that whenever disputes arose the Quarter Master General should appoint an arbitrator, the intention obviously was that the person holding that office whether permanently or temporarily should make the appointment. The expression `the Quarter Master General' in the agreement in our opinion includes the Acting Quarter Master General. As regards the next point namely that time for the submission of the award could have been extended only by the Senior Civil Judge, there is no force in it as in fact the extension was granted by that Judge. The application was no doubt made to the District Judge but he forwarded it to the Senior Civil Judge. In support of the last point mentioned in the order granting leave, our attention was drawn to the fact that the Arbitrator when asked by the Judge to give reasons said he could not and was not pre pared to do so. But we have not been shown any provision of law, or decision of any Court that an arbitrator is bound to state his reasons merely because the Court has asked him to do so. In connection with this question Mr. Shafi mentioned several allegations which were incorporated in the original list of objections and can be said to amount to legal misconduct on the part of the arbitrator, but these points were not raised before us when leave was granted. We, however, heard him in respect of them, but we see no force in his contentions. For instance, he argued that the arbitrator in his evidence admitted that an award passed by another arbitrator in some other proceedings was before him and that he must have been influenced by it. But the arbitrator deposed that he did not consider that award and the Civil Judge believed this evidence observing that the appellant's witness who appeared before the Arbitrator on behalf of the appellant did not refer to that award and that the statement of the appellant on this point was not sufficient. Although in the list of objections filed before the Senior Civil Judge it had been alleged that the arbitrator was partial and did not give the appellant adequate opportunity to prove his case, Mr. Shafi did not press those objections before us. From this it is clear that there is no reason to doubt the honesty or impartiality of the Arbitrator. The main attack on him was that he could not have applied his mind to the points stated before him as he did not record evidence or maintain notes of the proceedings. But when asked if many witnesses were examined and the hearings were many Mr. Shafi frankly said that he could not furnish the information. Obviously there was no large volume of evidence. However it was conceded that the Evidence Act did not apply, nor was any decision cited for the position that an award should be set aside if evidence was not recovered or notes of evidence were not taken. On the other hand in Mst. Amir Begum v. Syed Badruddin Hussain and others AIR 1914PC105, their Lordships of the Privy Council observed "Further, severe comment was made that the arbitrator did not make and retain any adequate notes of the proceedings. No doubt it is generally desirable that an arbitrator should make and retain for subsequent use, if necessary, notes of the proceedings before him, but there is no warrant for holding that in, the absence of such notes an award should be set aside at the instance of one of the parties, who must be held to have known the general course of procedure, and who did not make any protest until after the making of the award with the terms of which she was not satisfied". The material on which the arbitrator had to come to a conclusion in this case consisted of a statement of the appellant which is appended to his petition specifying the various items of his claim and a detailed explanation given in respect of those items by the M. E. S As already stated, the case of the appellant was that he had under the instructions of Government done more work than what he had contracted for and was therefore, entitled to an additional amount. The decision had to be taken on the appellant's statement considered with the reply of the M. E. S. and the inspection of the work done. That being so, the fact that evidence was not recorded or notes of proceedings were not main tained could not have caused prejudice to the appellant. It was in the evidence of the arbitrator that in respect of the cement used in the construction he had a test made by Mr. Malik, Executive Engineer, Engineer‑in‑Chief's Branch. He deposed that at the request of the parties he conducted a test of the proportion of the cement etc. that at that test in spite of information about it the appellant did not appear but that he was present at the second and third tests. He further stated "I appointed Mr. Malik, Executive Engineer, Engineer‑in‑Chief Branch to hold the test in respect of proportion of cement. He submitted his written result which I did not attach to the proceedings. I did not record his statement. His result is not attached to the record now". It was contended that this amounted to delegation of his duties to others and in this connection reliance was placed on Russell on Arbitra tion, 14th Edition, page 116 where it is observed that an arbitrator must not, generally speaking, delegate his duties. But as pointed out by the learned Advocate‑General getting a test made by another officer is not delegation of the arbitrator's duty. At page 117 of the same text book it is observed as follows: "It seems that an arbitrator may delegate to another the performance of acts of a ministerial character only, e.g., the measurement of the number of acres in a field or the surface of a lake are acts of such a character. It is not always easy to ascertain what acts are included under the head of ministerial acts". But holding a test of the kind explained by the Arbitrator is of the same nature as taking measurement of a field or surface of a lake. In the circumstances, the Senior Civil Judge was right in accepting the award. We, therefore, dismiss the appeal. A. H. Appeal dismissed.