P L D 1967 Dacca 797 (PLP)

HASAN, J.‑The plaintiff‑respondent was a contractor under the Government of East Pakistan, the defendant No.

1. As there was a dispute as to measurement, etc. the plaintiff' referred the matter to arbitration as per terms of the contract. The arbitrator made an award against which the plaintiff went to the Court for various reliefs, one of them being for setting aside the award being invalid, ineffective and not binding as the arbitrator Mr. S. M. Abed, Superintending Engineer misconducted himself. The suit was resisted by the Government on various grounds. The learned Subordinate Judge on consideration of the evidence both oral and documentary was of the view that the award should "be referred to the arbitrator for reconsideration of the difference regarding the reference to the arbitration and for fresh award with reference to items Nos. 2, 6, 8 and 9 of the award Exh. 1 having regard to the facts and circumstances and the evidence in the case, oral and documentary, that may be adduced by both the sides and come to a finding after due exercise of judicial discretion keeping in view the observation made in the judgment. Hence the appeal by the defendant No.

1. The learned Advocate for the plaintiff respondent has raised a preliminary point to the effect that remittance having been made under section 16 of the Arbitration Act, the appeal before this Court is not competent. In support, he has relied on the case of Mst. Zaralbibi and others v. Shamsuddin Khan‑Abdul Kadir Khan and others (A I R 1946 Sind 141), and the case of Santa Singh Govind Ram v. Khan Singh‑Buta Singh (A I R 1933 Lah. 530). We are unable to accept this contention and the view expressed in the above decisions. Section 39 of the Arbitration Act provides for an appeal from an order (i) superseding an arbitration ; (ii) on an award stated in the form of a special case ; (iii) modifying or correcting an award ; (iv) filing or refusing to file an arbitration agreement (v) ; staying or refusing to stay legal proceedings where there is an arbitration agreement ; (vi) setting aside or refusing to set aside an award. In our considered opinion when an award is remitted under section 16 of the Arbitration Act, the order includes an order under clause (vi) of section 39(1) as the same amounts to and takes effect in fact setting aside tree award. Hence we are of the opinion that the appeal b‑fore us is a competent one. Next question is whether the; order of the learned Subordinate Judge remitting the award to the Arbitrator is in accordance with law and maintainable. Subsection (1) of section 16 of the Arbitration Act provides the cases were an award can be remitted to the arbitrators by the Court. Those are "(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." The learned Advocate for the respondent has contended that the order passed by the learned Subordinate Judge comes under clause (c) of subsection (1) of section 16 as the judgment will go to show that the objection of the plaintiff to the legality of the award is apparent on the face of it. Clause (c) of subsection (1) of section 16 of the Arbitration Act runs "where an objection to the legality of the award is apparent upon the face of it", that is, the award can be remitted only where the question of law necessarily arises on the face of the award or upon some paper accompanying and forming part of the award and that question ex facie has been decided wrongly, g otherwise not. It cannot be remitted on an erroneous conclusion on a question of fact. The above provisions of law is an exception to the well‑founded principle that an Arbitrator is the sole and final Judge of all the questions, both of law and of fact. After going through the judgment we find that the above principle has not at all been in the mind of the learned Subordi nate Judge rather it appears that the learned Subordinate Judge entered into the merits of the case and on evidence adduced before the Court decided one way or the other and accordingly we find that the instant order remitting to the arbitrator passed by the learned Subordinate Judge cannot be sustained. We accordingly allow the appeal, set aside the judgment and decree in question and send the case back on remand to the learned Subordinate Judge for a fresh hearing on the merits of the case that may be argued by the parties. It may also be noted that if we have not set aside any opinion expressed by the learned Subordinate Judge in the judgment, that will not amount to our confirmation of the opinion expressed in the judgment. Both the parties will be at liberty to press all other points, Having regard to the facts, we direct the parties to bear their respective costs of this Court. Let the records be sent down expeditiously. A. S. CHOWDHURY, J.‑I agree. K. B, A. Appeal accepted.