P L D 1957 (W (PLP)

CONSTANTINE, J.

Plaintiffs claimed partition of certain lands on the ground that they were the heirs of Mst. Sahiti, who was an heir of her father Gul Hasan. The defendants were the heirs of Nabi Bakhsh, who was the son of Gul Hasan, apart from the, fifth defendant who was the widow of Nabi Bux. The main defence was that Mst. Sahiti predeceased her father, Gul Hasan, and, therefore, was not his heir and. therefore, the plaintiffs had no interest in the suit property. The matter was referred to arbitration. We are not concerned whether a valid reference was made, since we are setting aside the award on the ground of misconduct on the part of the arbitrator. The material part of the award itself' is as follows :- "In the above suit the parties jointly appointed Mir Saleem Khan Talpur, advocate as the sole arbitrator, who gives his decision as under :- (1) Heard the parties-defendant Ahmad Khan when asked does not say on Quran Sharif that Mst. Sahiti died before her father Gul Hasan whereas the plaintiff Alam Khan does say on Quran Sharif that Mst. Sahiti died much after her father only 5 years ago". In evidence the Arbitrator stated, "After hearing the parties I suggested to him defendant Ahmed Khan to take Holy Quran to the effect of death of Mst. Sahiti. He refused to take the oath, whereas on suggestion to him plaintiff he took the oath whom I believed and gave award ..The suggestion regarding the special oath did not come from the parties," and in cross-examination he stated "My decision was based on oath complied with the circumstances of this case revealed by my notices." It appears plain to us, therefore, that the decision of the arbitrator was based on the fact that the plaintiff took the special oath while the defendant refused' to take the, special oath. In Dital v. Dhanrajmal (A I R 1925 Sind 287), it was stated: "An arbitrator is not entitled to adopt the procedure of a special nature unless all parties affected by it agree to the adoption of such procedure. To do so is to abrogate his function as an arbitrator, and that would be a technical A misconduct." It was further observed in that case that one of the parties had been absent and his co-plaintiff who consented to the administration of a special oath to a witness, on the under-standing that the parties would stand or fall by his statement on such oath, had not been authorised to give such consent on behalf of the absent plaintiff. The award in that case was set aside. Here, in this case, the defendant had refused to take the oath and we think that the arbitrator was not justified in disbelieving his case on the ground that he had refused to take the special oath. As was observed in Dital's case "there is by no means any reason to suppose that the claim had been disposed of after due enquiry on the merits. We, therefore, set aside the award and direct that the lower Court should proceed with the trial of the suit. In the circumstances of the case the costs of this appeal will be costs in the cause. It remains to add that the argument that the objection was time-barred has not been pressed before us. A. H. Appeal accepted.