1971 PLP 503 (SCMR)

SAJJAD AHMAD, J.‑The facts giving rise to this appeal, by special leave, are as follows : A dispute arose between the appellant, Abdul Wahid, and the respondent, Agha Muhammad Yaqub Khan, about their partnership business in the firm known as Messrs Ever bright Pictures, No. 1, Abbot Road, Lahore. According to the respon dent's case, which was denied by the appellant, the matter was referred to the arbitration of one, Chaudhry Muhammad Hussain, Advocate, as the sole arbitrator to resolve the disputes between the parties. He gave his award on the 17th of May 1961, which was filed in the Court of the Civil Judge! 1st Class, Lahore, for being made the rule of the Court. The appellant submitted; leis objections to the award in writing, and on contest, the following issues were framed :‑ (1) Whether the arbitrator has misconducted himself in arbitration proceedings? (2) Whether the award dated the 17th of May 1961, has been improperly procured or is otherwise illegal ? (3) Has the award been partially acted upon by the objector petitioner? If so, what is its effect? and (4) Whether the respondent No. 1 was not a party to the agreement for arbitration? There were some ineffective hearings in the case, whereafter it was eventually fixed for evidence of the appellant for the 2nd of March 1964. On this date, the appellant sought an adjournment, on the ground that owing to his son's illness since the last few days, he had not been able to bring his witnesses with him, for whom summons had also not been taken. The learned Civil Judge refused to grant an adjournment, and proceeded to make the award the rule of the Court. The appellant went to the High Court in appeal against this order, which was dismissed by a Division Bench in limine. The appellant then came up to this Court with a petition for special leave, in which it was contended that adjournment ought to have been allowed to the appellant for production of his witnesses. This contention was not enter tained by the Bench, who decided the petition, on the view that the grant of adjournment was a matter of discretion with the trial Judge, and it was not shown that this discretion was 'improperly exercised in the circumstances of the case. However, leave was granted to consider the argument that even without granting the adjournment, it was not proper for the learned Civil Judge to make the award the rule of the Court without examining the appellant himself, who was present in Court, to support his objections, which he had also incorporated in a duly sworn affidavit. We feel that there is considerable force in the con tention of the learned counsel appearing for the appellant, that the trial Court should not have made the award the rule of the Court as a matter of course without adverting to and deciding the objections that had been taken by the appellant in defiance of the award. Section 33 of the Arbitration Act provides that where the existence or validity of an arbitration agreement or award is challenged, affidavits form primary evidence for decision by the Court, but the Court may set down the application for hearing on other evidence also. As stated above, the learned Civil Judge neither took heed of the affidavits nor did he examine the appellant in support of his objections although he was present in Court himself even though he had not brought his other witnesses to the Court. In the result, we would accept this appeal and remand the case to the learned Civil Judge to decide it afresh in accordance with law. There shall be no order as to costs. Appeal accepted,