P L D 1959 (W (PLP)

(1) Was the award, dated the 18th September 1957, made beyond four months after entering upon reference, and, therefore, invalid ? (2) Did the petitioner withdraw his objections to the arbitrator acting as such on any inducement offered by the latter ? If so, what is the effect ? (3) Did the arbitrator refuse to allow an opportunity for producing his technical witnesses? (4) Has the arbitrator otherwise mis-conducted himself or the

2. The learned District Judge found all the issues against the petitioner and, by his order dated the 22nd December 1958, dismissed the petition. 'Feeling aggrieved by this order, the petitioner has moved this Court by means of a revision petition under section 115 of the Code of Civil Procedure, read with section 33 of the British Baluchistan Courts Regulation, and prays that the order of the learned District Judge be set aside and the award in question be declared as void and ineffective.

3. As the finding on the first issue given by the learned District Judge is not being challenged by the petitioner in the present revision petition, it is unnecessary to deal with this matter. His main attack is against the findings given on the remaining three issues, all of which were found against the petitioner after the learned District Judge had held that the petitioner failed to establish his allegations concerning misconduct of the arbitrator.

4. The learned counsel for the respondent has raised a preliminary objection that as in the present revision petition only finding of fact arrived at by the learned District Judge, namely, that it had not been established that the arbitrator was guilty of misconduct, is being challenged, this Court is not competent to go into this disputed question of fact and upset the finding of fact arrived at by the learned District Judge. To support this contention, the learned counsel referred to a case of the Lahore High Court, Gobind Lai and another v. Darbari Lai Devi Kishan Das Hukanzehand and another (A I R 1929 Lah. 688), in which it was held that it was doubtful whether the proceedings relating to the setting aside of an award in a suit was a "case" within the meaning of section 115, se that the order refusing to set aside the award could be revised. The learned counsel further referred to two other cases, one of the Allahabad High Court and the other of the Nagpur Chief Court, in which somewhat similar views had been expressed. In Mst. Swaraswati and another v. Wali (A I R 1935 All. 456), it was held that the question whether a certain act amounts to misconduct on the part of the arbitrator is one arising in the case in which the Court has jurisdiction to decide, and if in deciding that question the Court took an erroneous view of law, or made an incorrect inference from the facts, provided all that can be attributed to the Court is an error of judgment, it cannot be said that there was any illegality or irregularity in the exercise of jurisdiction. In the second‑mentioned case. Kesholal Ramdayal Kahar v. Laxman Rao Ramkrishana Rao Deshpande (A I R 1940 Nag. 386), it was held that, in exercise of the revisional powers, the High Court cannot interfere merely because the lower Court has taken, in exercise of its jurisdiction, a mistaken view as to what does or does not constitute mis conduct.

5. The learned counsel for the petitioner did not dispute the soundness of the views expressed in these authorities and concede that, in exercise of the revisional powers, this Court would not be justified in upsetting the finding of fact arrived at by the learned District Judge, namely, that the petitioner had failed to prove his allegation that the arbitrator was guilty of misconduct. He, however, contended that the revision petition should be treated as an appeal against the order of the learned District Judge, refusing to set aside the award of the Arbitrator. For this purpose, he relied upon clause (vi) of subsection (1) of section 39 of the Arbitration Act, 1940, which provision of law is worded as follows :‑ "39.‑(I) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order :‑ An order‑ (i) * * * * * * * (ii) * * * * * * * (iii) * * * * * * * (iv) * * * * * * * (v) (vi) Setting aside or refusing to set aside an award: Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court." When it was pointed out to the learned counsel for the petitioner that the order in question was not an order refusing to set aside an award which could have been passed only under section 17 of the Arbitration Act, he replied that the effect of the Court's order was virtually the same as would have been of an order passed under section 17 of the Act and, therefore, this order must be treated as being of the same nature and should, therefore, be considered to be appealable within the meaning of section 39 of the Act. The learned counsel for the petitioner was, however, unable to support his contention by referring to any authority. On the other hand, the learned counsel for the respondent referred of the Lahore High Court, reported as Radha Kishen v. Bombay Company Ltd. (A I R 1943 Lah. 295), in which it was held that an application to chal lenge the validity of an arbitration agreement or to have the effect of that agreement determined, does not fall either under section 20, or under section 39 (4) and that, therefore, revision against the order refusing the aforesaid cannot be thrown out on the ground that an appeal there-from was competent. The facts of the present case are somewhat similar to the reported case, except that in the reported case the application had been filed to challenge the validity of the arbitration agreement, while in the present case the application was filed to challenge the validity of the award. The reason given by the learned Judge, who decided this case, for not treating the order passed under section 33, as being an order refusing to file an arbitration agreement appear to me to be quite convincing and no fault could be found with them. This is what the learned Judge observed :‑‑ The second objection urged today by learned counsel for the respondent was to the effect that the application under section 33, Arbitration Act, was really made with the object that the agreement to refer the matter to arbitration be not filed and an appeal would, therefore, be competent under section 39 (4) of the Act. Section 20 of the Act provides for an application asking for an agreement to be filed. If an appli cation to that effect is made, it can be either accepted or refused. In either case, an appeal has been provided by section 39 of the Act. But the contention that an application under section 33, Arbitration Act, is virtually made for the purpose of securing an order that the agreement to refer the matter to arbitration be not filed is devoid of any merit. An application like this is first of ail not provided by the Act and cannot be made. If a person does not want an agreement to be filed, he can keep quite and oppose the application when one is made by his opposing party to have the agreement filed. Secondly this application is made to challenge the validity of an arbitration agreement or to have the effect of that agreement determined and would not, therefore, fall either under section 20, or section 39 (4) of the Act." A reference to the provisions of section 39 of the Arbitration Act would show that in the various clauses of subsection (1), one of which is clause (vi) on which the petitioner's case is based, the words used in some other sections of the Act have been repeated, but not those used in section 33 of the Act. The scheme of the Act clearly shows that appeals have not been provided against all orders passed under the Act, but only against certain specified kinds of orders. If, therefore, the intention of the legislature had been that an order declaring an award to be invalid, passed under section 33 of the Act, should be made appealable, it was not difficult for them to have introduced another clause under sub-section (1) of section 39 for this purpose. As this was not done, the intention of the legislature, in my opinion, which can be gathered from language used in this section, was that no appeal should lie against any order made under section 33 of the Act." The orders contemplated by clause (vi) of subsection (1) of .4 section 39 of the Act could be only those orders which are contemplated by section 17, in which the words "set aside" and "refusing to set aside" an award have been used. The petitioner, if he wanted to take benefit of this provision of law, could have moved under section 14 of the Arbitration Act for having the award filed and should then have raised objections to the validity of the award and prayed that an order of setting aside that award be passed under section 17 of the Act. In that case only he could move this Court under section 39 of the Act by means of an appeal. That remedy was not availed of by the petitioner and as he took action only under section 33 of the Arbitration Act and as the order passed under that provision of law has not been made appealable under section 39 of the Act, the revision petition cannot be treated as an appeal.

6. For reasons given above, this Court cannot, in exercise of the revisional powers conferred by section 115 of the Civil Procedure Code, read with section 33 of the British Baluchistan Courts Regulation, interfere with the finding of fact arrived at by the learned District Judge. The revision petition is, therefore, dismissed with costs. K. M. A. Petition dismissed.