2004 PLP 274 (YLR)

(2) Whether the application for being made award as a Rule of Court is liable to be dismissed in view of Preliminary Objection No.1, of the opposite-party? (3) Whether the alleged award has not been drawn on a stamp paper, if so, what is its effect? (4) Whether the award is not valid at all in view of Preliminary Objection No.2, of the reply? (5) Whether the arbitrator has committed gross irregularity and misconduct in his proceedings and conduct? OPR. (6) Whether the arbitrator has committed act of misconduct by holding arbitration proceedings without notice to the respondent? OPR (7) Relief.

2. After recording and appreciating the evidence of the parties, pro and contra, the trial Court vide its judgment and decree dated 4-10-1995 accepted the award and making it Rule of Court, whereby, respondent No. 1 was held entitled to recover a sum of Rs.1,19,480.60 from the petitioner. Feeling aggrieved, the petitioner had preferred an appeal almost on the same grounds taken before the trial Court which came up for hearing before learned Additional District Judge, who vide, impugned judgment and decree dated 3-12-1997 dismissed the same, affirming the findings of the trial Court.

3. Learned counsel for the petitioner argued that the dispute referred to the Arbitrator was not specified and the award based upon such vague reference is liable to be vitiated. He relied, in this context, on case of Deep Narain Singh' v. Mt. Dhaneshwari AIR 1960 Patna

201. Further submitted that the petitioner has not been heard and his evidence was not reduced into writing and the award had been made by the arbitrator on his own knowledge, hence, the arbitrator had committed misconduct in the arbitration proceedings. Relied on cases of Messrs Ansari Enterprises v. Trading Corporation of Pakistan Limited PLD 1980 Karachi 226 and Brooke Bond (Pakistan) Ltd. v. Conciliator appointed by Government of Sindh and 6 others PLD 1977 SC 237.

4. On the other hand, the arguments of learned counsel for the petitioner has vehemently been opposed by the learned counsel for the respondents, contending that a dispute arose between the parties and the petitioner himself bound down to appoint Abdur Rashid Saeed as arbitrator and his, decision was binding on the parties and the petitioner cannot wriggle out of the same at later stage. Further submitted that the petitioner had not applied for the revocation of the authority of the arbitrator in time. Further contended that the said arbitrator appeared in the Court and he was not cross -examined according to the objections raised in the Court. Further added that arbitration proceedings were in the knowledge of the petitioner and he did not raise any objection.

5. I have heard the learned counsel for the parties at length and perused the record.

6. There is no cavil with the fact that the petitioner was party for appointing the arbitrator and referring the dispute to him and on the reference of the parties the arbitrator had passed his award on 9-11-1984. The objection of the petitioner is that, the arbitrator had not reduced into writing the proceedings and evidence taken by him before the pronouncement of the award. The arbitrator while appearing in the Court had stated that it was settled between the parties that the matter will not be referred to the Court and they will be bound by his decision.

7. Section 30 of the Arbitration Act, 1940 provided the grounds for setting aside award,--which are reproduced as under:-- An award shall not be set aside except on one or more of the following grounds, namely:-- (a) That an arbitrator or umpire has mis-conducted 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.

8. It would be convenient to mention here the elements treating or constituting the misconduct on the part of arbitrators, namely:-- (a) neglect of duties responsibilities by arbitrators; (b) something contrary to what Courts of justice expect from them l before allowing finality to awards; (c) if the arbitrator has refused postpone a meeting for purpose of allowing a party to engage counsel when the other party unexpectedly turns up with counsel; (d) if the award is made having heard all the evidence; (e) if the evidence of the witnesses is recorded behind the back of a party; (f) if a party has not been reasonable opportunity of his case; (g) if the arbitrator has not brought the notice of opposite-party a document received by him from his adversary or not given him an opportunity of meeting inferences deducible from them; (h) if the irregularities in the proceedings are proved which amount to no proper hearing of the matter in dispute; (i) if the finding is perverse or unsupported by the evidence before him; (j) if the arbitrator decides a disputed question without going into evidence as he would in such case be said to have decided blindly; (k) if there is indication of gross negligence or recklessness on the face of the record; (l) if there is some mistake of fact provided it is either admitted or at least clearly beyond reasonable doubt. The dispute between the parties is that the claim of the contractor-respondent was that the petitioner had paid him less than the work done or constructed by him. The petitioner had filed objection against the award that the arbitrator after reference of the matter for arbitration did not send any notice to the petitioner, so he could not produce his evidence in defence. The parties were not called for to produce their evidence in support of their respective claims and the arbitrator was bound down to take measurement of the constructed building to determine percentage of the work done by the respondent. Further the arbitrator had not collected any rate from the suppliers in his presence. The said arbitrator appeared in the Court as A.W.1. He deposed that he, had not issued any written notice to the petitioner-objector but he himself went to his house, met him and the petitioner had provided him the record as well as information regarding dispute. The arbitrator further stated that he had joined the petitioner in the arbitration proceedings.

9. It is admitted fact that the evidence of the parties had not been taken down into writing. No procedure is laid down for the arbitrator in Sched.II, Civil Procedure Code, and unless it is proved that the arbitrator refused to examine any evidence tendered by the parties, the mere fact that he did not record any proceedings or did not hold a public enquiry would not be enough to vitiate the award. In this context , reference can be made to the case of Kanshi Ram v. Harnam Das and others AIR 1940 Lahore

73. The parties referring the matter for arbitration are bound by the award passed by the arbitrator and should not be allowed to pick up the holes in it.

10. There is also nothing in the Arbitration Act, which compels an arbitrator to record on paper the statements of the witnesses or admissions of the parties. There is no bar in the Act against relying on oral evidence. The failure of the arbitrator to reduce the evidence into writing is not an omission fatal to the award and does not constitute misconduct on the arbitrator's part. Reliance in this respect can be made to the case of Gul Hasan Shan v. Sardali Shah PLD 1960 (W.P.) Pesh. 14.

11. As regards, the objection of the learned counsel for the petitioner for non -issuance of notice by the arbitrator to join the petitioner in the arbitration proceedings, it is suffice, to observe, that the arbitrator deposed in the Court that he met with the petitioner at his residence, where he produced his record and gave information regarding dispute. It means that the petitioner had been associated in proceedings by the arbitrator. As discussed in the preceding paragraphs, the arbitrator was not cross-examined at length by the petitioner while he appeared as A.W.1 in the Court in respect of his objections. The arbitrator had submitted his report in detail after measurement of the work made by the respondents.

12. While examining the validity of award, the Court would not act as Court of appeal and the Court while hearing objections to award could not undertake re appraisal of evidence recorded by they arbitrator in order to discover error or infirmity in award which rendered the same invalid, must appear on the face of award and should be discoverable by reading award itself. In this respect, reliance placed to the case of Messrs Joint Venture KG/Rist v. Federation of Pakistan PLD 1996 SC

108. The same view was also followed in case of Messrs World Circle v. State Cement Corporation of Pakistan 1997 CLC 212.

13. In case of Pakistan Defence Housing Authority v. Meer Brothers 1992 CLC 1252, Honourable Judge of the Karachi High Court has observed that mis-appreciation of evidence, and drawing conclusions from evidence which in objecting party's view might be in-corrected, unless same were perverse and biased, could not be a ground for setting aside award.

14. There is no evidence on record to establish the fact that arbitration proceedings were conducted by the arbitrator in the absence of the petitioner and the petitioner was not afforded an opportunity to rebut any evidence produced by the respondent. The house of petitioner was constructed by the respondents under the contract agreement executed between him and the respondent-contractor and the question of recording of evidence in this case was not so vital. It was a case of measurement of the construction which was measured by the arbitrator and it cannot be inferred that the measurement of the house of the petitioner was made in his absence.

15. If it was so and the petitioner was not satisfied with the measurement made by the arbitrator he could produce some other evidence to controvert the same but no such material is available on the record. It is settled proposition that law leans in favour of upholding the award and not vitiating it. This Rule has been enumerated in case of, Ashfaq Ali Qureshi v. Municipal Corporation, Multan 1985 SCMR 597, wherein, the Honourable Judges of the Supreme Court of Pakistan have held that it is well-settled Rule of law that where a dispute is referred to an arbitrator of the choice of the parties and he makes an award, it becomes the duty of the Court to give every reasonable intendment in favour of the award and lean towards upholding it rather than vitiating it. A similar view was expressed in Abdul Rauf v. Muhammad Saeed Akhtar PLD 1985 Karachi 145 which is as under:-- "A well-settled Rule of construc tion of the award is that the award should be construed liberally and in accordance with common sense, and it should be so read that it can be given effect to and not so that it would nullify the efforts of the arbitrator appointed by the parties themselves. "

16. Further there is concurrent findings of fact against the petitioner and this Court in exercise of its revisional jurisdiction would not interfere with in the concurrent findings of fact recorded by the Courts below, unless it is established that the Courts had exercised the jurisdiction so vested in them illegally or have failed to exercise the same legally. In this context reference can be made to the cases of Guldar Khan v. Isa Khan 1993 SCMR 2099, Nazir Ahmad v. Boota 1989 SCMR 450, Riaz v. Muhammad Saleem 1989 SCMR 1491 and Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291.

17. For the foregoing reasons, I see no force in this revision petition which is dismissed with no order as to costs. S.A.K./K-253/L Petition dismissed.