P L D 1955 Lahore 23 (PLP)

S. A. RAHMAN, J.‑This is a first appeal from an order passed by the learned Civil judge 1st Class, Lahore, in a suit for possession by partition of certain properties brought by Hafiz Ghulam Ahmad against Sayyed Altaf Husain and others. The relevant facts are that out of 45 defendants in the suit, 42 agreed with the plaintiff to refer the dispute between the parties to arbitration. The other three defendants did not join in the reference. One arbitrator was nominated by each of the parties and a sarpanch was also named in the agreement. The Trial Court made the reference to the arbitrator named in the agreement and directed that the case of the three defendants, who had not joined the reference, should proceed in Court. On the 15th of July 1950, the plaintiff made an application to the Court for permission to revoke the authority of the arbitrators under section 5 of the Aritration Act (hereinafter referred to as the Act). This application was allowed by order dated the 26th of July, 1950, but the learned Civil judge, in addition, superseded the reference to arbitration. An appeal was brought to this Court against the order and a learned Single Judge of this Court allowed the appeal and remanded the case with the direction that if an application under section 12 of the Act was presented, it should be heard afresh, giving defendant No. 29, who had not been served in the previous proceedings, an opportunity to present his case. The parties were left to bear their own costs in this Court. After remand, in spite of putting in a petition under section 12 of the Act, the plaintiff: presented a petition under section 25 of the Act for supersession of the arbitration. By order dated the 24th of January, 1953, this petition was accepted and the case was directed to proceed in Court henceforward. Two of the defendants, namely, the Ahmadia Anjuman‑i‑Ishaat‑i‑Islam and Khawaja Abdul Ghani, have come up in appeal against that order. Mr. Karam Ilahi Chohan on behalf of the appellans s has contended before me that section 25 of the Act was not applicable in this case. It seems to me that the contention rests on a solid foundation and must prevail. It is the proviso to section 25 of the Act that was pressed into service by the plaintiff‑respondent in the Court below. This reads as follows :‑ "Provided that the Court may, in any. of the circumstances mentioned in sections 8, 10, 11, and 12, instead of filling up the vacancies or making the appointments, make an order superseding the arbitration and proceed with the suit, and where the Court makes an, order superseding the arbitration under section 19, it shall proceed with the suit." Section 19 is clearly not attracted to the circumstances of this case. That relates only to cases where an award has become void under subsection (3) of section 16 or has been set aside. These conditions are not satisfied in the present case. We are, therefore, concerned only with the first part of the proviso. It is conceded by Mr. Mahbub Elahi on behalf of the respondents that out of the four sections mentioned in this part of the proviso, the only section that calls for consideration is section 8 of the Act. This section, however, clearly refers to a case where the arbitrators are jointly appointed by the parties and not to a case where each party nominates one arbitrator. Clause (a) of subsection (1) of section 8 in express words pertains to an arbitration agreement providing that the reference shall be to one or more arbitrators to be appointed by consent of the parties. Mr. Mahbub Elahi however argues that clause (b) of subsection (1) of section 8 is independent of clause (a) and the general language employed therein would cover an arbitration agreement in which the parties are authorised to name their own individual arbitrators. This argument strikes me as unsound. Clearly subsection (1) of section (8) is to be read with subsection (2), which is in the following terms :‑ "If the appointment is not made within fifteen clear days after the service of the 'said notice, the Court may, on the application of the party who gave the notice and after giving the other parties an opportunity of being heard, appoint an arbitrator or arbitrators or umpire, as the case may be, who shall have like power to act in the reference and to make an award as if he or they had been appointed by consent of all parties." The concluding words of this subsection place the matter beyond all doubt. Clearly, the whole section deals with cases where the appointment of arbitrators is to be by consent of all parties. I am fortified in this view by the consideration that section 9. of the Act is specifically designed ‑to deal with cases of an arbitration agreement providing that a reference shall be to two arbitrators, one to be appointed by each party. If the view pressed by Mr. Mabbub Elahi is. accepted, then section 9 would become wholly redundant. Redundancy should never be attributed to the Legislature unless that is the only conclusion possible while interpreting a statute. I, there fore, hold that section 8 of the Act did not cover the present case, and, consequently, section 25 of the Act could not be pressed into service for superseding the arbitration. It seems to me that the remedy was misconceived by the plaintiff‑respondent. What he had to do was to revoke the authority of the appointed arbitrators or umpire with the leave of the Court under section 5 of the Act and then to apply under section 12 of the Act for supersession of the arbitration. This had been pointed out by Kayani, J. in his remand order in this very case and I am surprised that the direction was not followed. Another objection put forward on behalf of the appellants is that the second appellant, defendant No. 19 Khawaja Abdul Ghani, had received no notice of the proceedings subsequent to the remand in the trial Court and the order passed, therefore, was vitiated. It appears that, a notice was issued to Mr. Karam Elahi Chohan in respect of this defen dant, but Mr. Karam Elahi Chohan returned the process with a note saying that he had been engaged in the case only for a few hearings and that he had no further authority to accept service on his behalf. No further attempt seems to have been made to serve Khawaja Abdul Ghani with a notice. I, therefore, consider that Khawaja Abdul Ghani had not been properly notified and the order is, therefore, not binding on him on that ground also. The result is that the appeal must be allowed and the order impugned set aside. I order accordingly and remand the case to the Trial Court with the direction that it should now be disposed of in accordance with law in the light of the observations made above. The appellant will have his costs of this appeal. The Trial Court should dispose of the case expeditiously. A. H. Appeal allowed.