P L D 1958 (W (PLP)

(5) The award was incomplete and beyond the term of reference. I will consider these contentions raised by Mr. Sohail separately There is no force in the contention that the award has not been filed by the arbitrator. The application under section 14 (2) of the Arbitration Act read with rule 162 (1) of, the, Sind Chief Court Rules, specifically mentions that the arbitrator, Abdul Haq, had filed the award together with the documents mentioned therein. The Registrar (O. S.) received the documents in: a sealed cover on 10th December 1955, and notices were issued of the filing of the award to the parties: concerned on 14th December 1955. The contention of Mr. Sohail that the award was not filed along with this application has no force as would appear from the fact that had, the award not been filed, the office would not have issued notice on 14th December 1955, but would have raised an objection that the award had not been filed by the arbitrator as disclosed in the application. Mr. Sohail, however, placed reliance on an application made by the plaintiffs for issue of summons on defendant‑3, wherein he mentioned the plaintiff has filed an award against the above-named defendants". Mr. Ibadatyar Khan submitted that this was inadvertently put, as it is in direct conflict with the applica tion filed by the arbitrator on 10th December 1955, wherein it was clearly mentioned that the award was being filed along with other documents. I accept the contention of Mr. Ibadatyar Khan that this was inadvertently put. I may make it clear that had the award not been filed in compliance with Rule 162 (1) of the Sind Chief Court Rules, the office would not have issued notices to the parties concerned without asking the arbitrator to file the award in Court. The next contention raised by Mr. Sohail, that the award had been filed beyond time also is without any force. Mr. Sohail has relied on Article 178 of the Limitation Act. He contended that under article 178, the period of limitation was 90 ‑days from the date of service of the award having been given by the arbitrators, and that Article 178 would apply when the award is filed by the parties concerned. But, as I have already held above, the award had been filed by the arbitrator himself, and therefore, the contention of Mr. Sohail fails. Mr. Sohail strenuously contended before me that one of the parties, who is affected by the award, viz., Ibrahim, has not been given any notice of the arbitration proceedings by the arbitrators. It is true that the notices of 12th December 1952, filed along with the award by the arbitrator clearly omit the name of Ibrahim intimating to him that the arbitrators would start the arbitration proceedings on 14th December 1952. The important question, however, to be determined is whether Ibrahim had knowledge of the proceeding before the arbitrators and did in fact participate in the proceeding before the arbitrators. I am inclined to accept the contention of Mr. Sohail that no notice as such was given by the arbitra tors about the proceedings to be held before them. But as I have already mentioned the important question is whether, in fact, Ibrahim did participate in the proceeding and had knowledge of the proceeding or not. Ibrahim is father of Chaudhury Saeed Akhtar, defendant. It would appear from the notice dated 12th December 1952, that notice was given to Chaudhury Saeed Akhtar and that he was duly served as would appear from the endorsement on the notice dated 12th December 1952. All that has been mentioned by defendant‑2 in para. 3 of the application is as under :‑ That, no notice was given by the arbitrators to defendant No. 1 to appear before them and place his case and which was resulted in great prejudice and hardship to him and is against fundamental principles of natural justice. I may mention here that there is obviously, a mistake in this paragraph the reference is not to defendant‑1 but to defendant‑

2. I may also mention at this stage that the application, which was supported by an affidavit filed by Muhammad Ibrahim, is not in conformity with the rules of this Court, inasmuch as it does not disclose what facts were in his personal knowledge and what he tame to know from other sources. " On the other hand, the affidavit of 'Muhammad Latif specifically mentions that Muhammad Ibrahim had notice of every proceeding before the arbitrators and was present at all material times that, he knew everything that transpired before the arbitrator, and that' he and the other two defen dants continuously attended the proceedings, gave statements, contested the case and were not in any way prejudiced. This affidavit also suffers from the same defect as that' of Muhammad Ibrahim, as it does not disclose that facts were in his personal knowledge and what he came to know from other source. The question before me is whether I should accept the affidavit of Muhammad Ibrahim or that of Muhammad Latif. I am inclined to accept what is stated by Muhammad Latif Salim on one, ground alone ; i.e., admittedly defendant‑1 who is the soil or defendant‑2 Muhammad Ibrahim, had participated in the proceedings in question before the arbitrators, and I have no doubt in my mind that he must have done so under the guidance o his father, defendant‑

2. In view of this circumstance, I would hold that Muhammad Ibrahim, though he had not been served with any notice by the arbitrators, had knowledge of the proceedings and had participated in the same. The Arbitration Act does now prescribe any procedure as to how proceedings before the arbitrators should be conducted. All that it requires is that nothing should be done ex pane, and that the parties should have notice in the sense that they know when the matter is to be taken up by the arbitrators. It is open to the arbitrators to convey to the parties concerned even orally the date fixed F by them. Under the Arbitration Act, the arbitrators cannot proceed ex parse in the absence of parties who are affected by the award. I am inclined to hold that under the circum stances of the present case that the arbitration proceeding against Ibrahim was not ex parse and that Ibrahim did participate in the proceeding before the arbitrators. This objection is accordingly disposed of. The next contention of Mr. Sohail was that paragraph 7 of the agreement to refer the dispute between the parties to arbitration states :‑ "That the award so made shall be comprehensive and shall give definite findings and the following matters : (a) Amount withdrawn by Sufi Muhammad Tufail, attorney of Muhammad Saeed Akhtar of the 1st Part, on his own account as well as for and on behalf of Muhammad Saeed Akhtar. (b) Amounts overdrawn by the said Muhammad Saeed Akhtar. (c) Liabilities upon the firm S. A. Rauf & Co., including the claims of Messrs. Inam & Co., (2) Universal Corpora tion, (3) Munawwar Co., in case decrees are passed in their favour in the matters pending in Courts. (d) Claims of other parties not yet filed in Court but which may subsequently be filed and decreed. (e) Expenses of litigation to be incurred in defending the pending cases against the firm S. A. Rauf & Co." I was inclined to accept the contention of Mr. Sohail, but on further consideration and reading the award I have come to the conclusion that the arbitrators have applied their mind, though not as persons conversant with law "and trained in legal principles would apply their mind to the specific items which they were called upon to determine. The arbitrators have determined the question regarding (a) above in para. 1 of the award, (b) in para. 22, (c) in para. 18, (d) in para. 20, (e) In para, 17, So far as (f) is concerned, which relates to income‑tax, sales tax and other claims if any, this has not been determined by the arbitrators for the obvious reason that the matters had not been determined by the Income‑Tax and Sales Tax Departments. 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 D would nullify the efforts of the arbitrators: appointed by the parties themselves. In determining awards the Court cannot lose sight of the fact that arbitrators as a rule are laymen, not conversant with the procedure of Courts of law. So far as the last contention of Mr. Sohail is concerned, namely, that some of the conclusions arrived at by the, arbitrators are not clear and definite, and therefore they, cannot be given effect to by any Court of Law, I find that it has force so far as items (1) and (6) of the award are con cerned. Para. 1 of the award reads as under :‑ "That Sufi Muhammad Tufail son of Mr. Daulat Khan, Attorney of Mr. Muhammad Saeed Akhtar son of Ch. Muhammad Ibrahim Khalil of Party No. 1, do pay Rs. 12,660‑7‑0 drawn by him from the firm S. A. Rauf & Co., to erect his house in Nazimabad. Colony, in cash, or in default transfer proprietary rights‑ with vacant possession of the said house in lieu of the above payment." Para. 6 reads as under :‑ "That shares held in the firm Messrs Usman Suleman & Co., Cotton Brokers. Room No. 13, Cotton Exchange Building, Karachi, are declared to be the property of the said firm S. A. Rauf & Co." Para. 1 of the award does not disclose as to whom the amount of Rs. 72,660‑7‑0 be paid ; while para. 6 of the award declares certain shares of the firm of Messrs. Usman Suleman & Co. to be the property of the firm S. A. Rauf & Co., but it does not specify the persons whose shares axe so declared. 3 would hold‑ that the arbitrators are not definite about the liabilities mentioned in paras. 1 and 6 of the award and I think, in the interests of justice, the award should be remitted back to the arbitrators to clarify paragraphs 1 and 6 of their award in respect of the indefiniteness, which I have already observed above. The award to be sent back to the arbitrators under section 16 of the Arbitration Act, 1940, to answer and clarify the indefiniteness as regards paragraphs 1 and 6 of the award, within one month of the service of this order. K. M. A. Case remanded.