P L D 1966 (W (PLP)

WAHIDUDDIN AHMED, J.‑

This is a Letters‑ Patent Appeal from the order of a learned Single Judge in Suit No. 81 of 1960, decided on 29th August 1961. By this order the learned Single Judge overruled the objections filed by the appellant and made the award the rule of the Court and passed a decree in terms of the award.

2. The appellant and Respondents 1 to 3 are brothers. There was dispute between them in respect of certain joint movable and immovable properties. In Miscellaneous No. 22 of 1959 on 25th November 1959, the dispute between the parties was referred to Haji Sujauddin, respondent No. 4 for decision as an arbitrator. The arbitrator filed his award dated 11th April 1960, which was registered as Suit No.

81. By this award he decided all the disputes between them in respect of the business, assets and liabilities in properties both movable and immovable jointly owned by them. The parties filed objection to the award. On 10th March 1961, Qadeeruddin Ahmed, J. by consent of the parties remitted the award to the arbitrator for clarification on three points. It is not necessary to reproduce all the points which were referred for clarification to the arbitrator because the appellant is not aggrieved by the clarification of the arbitrator on points 1 and

3. We would, therefore, reproduce point No. 2 which is in issue between the parties. It is as under:‑-- "What has been decided in respect of the past income of ten years of Writers Chambers? If no decision has been taken a decision should be made." The point referred to the arbitrator for clarification on remission was considered by the arbitrator who submitted his clarification on 8th April 1961. The learned Arbitrator on the point in dispute between the parties made the following submissions: "As regards the "Writers Chamber" the position is according to the plaintiff version the initial investment was Rs. 1,63,800 only while according to the defendant it was Rs. 1,10,000 only. According to the defendant a sum of Rs. 8,81,000 (about) has been invested in the construction of the building. It seems tome to be correct. There is no proper accounts for the cost of construction of the building or and the rent. The rent received by the defendants was either invested in the construction of the building or utilised in paying back the loans and the taxes, etc. However, I have distributed the arrears of rent among the parties." The appellant was not satisfied with the above‑mentioned clarification of the arbitrator. Accordingly, in May 1961, the appellant filed objections under sections 16 and 33 of the Arbitration Act. He contended that the Writers Chambers Building, being a well‑known building in the heart of the city and the annual rent being approximately Rs. 2,08,912 per year, all of which was appropriated for more than 10 years by Respondents 1 to 3, the arbitrator has deliberately omitted to take any account from the respondents and has left this dispute undecided. He further complained that the arbitrator had not decided this question on remission after notice to the parties. The learned single Judge disposed of these objections by order dated the 29th August 1961, and dismissed them having found no force in the contention raised before him. The appellant has challenged this order in this Letters Patent Appeal.

3. In support of the appeal Mr. Ghani, learned counsel for the appellant, has urged two points: firstly, that the finding on the above‑mentioned point, after remission, was given by the arbitrator without notice and hearing of the parties; secondly, that the observations of the arbitrator that the rent receipt by the respondent was used in the construction of Writers Building or utilised in paying back the loan obtained for that purpose and the taxes are vague and cannot be considered to be a final determination of the dispute between the parties. After hearing learned counsel for the parties, we are satisfied that none of the points raised by learned counsel has any force.

4. In support of the first contention that the finding on point 2 was given by the arbitrator without notice and hearing of the parties, learned counsel for the appellant has relied on a letter written by the appellant on 1st April 1961, by which he called upon the arbitrator to fix an early hearing for the case sent to him for remission and requested him to call for certain documents from Respondents 1 to 3 to enable him to prove his case. Learned counsel contended that it was the duty of the arbitrator, after receiving this letter, to fix a date of hearing for the case remitted to him and it was further his duty to afford an opportunity to the appellant to explain his side of the case after adducing necessary evidence. In our opinion, the contention of learned counsel is not of much substance because the award was remitted to the arbitrator on 10th March 1961, by consent of the parties. In order to appreciate the contention of the appellant it will be useful to reproduce the material portion of the consent order:‑-- "By consent the award is remitted to the arbitrator for the following clarifications and action if necessary: .

2. What has been decided in respect of the past income of ten years of Writers Chambers? If no decision has been made then the same should be made." It is to be observed that in the consent order the parties did not ask for any personal hearing or reserved any right to adduce further evidence in support of their case. The arbitrator was only asked to clarify as to what has been decided in respect of the past income of 10 years of Writers Chambers and he was further informed that if no decision has been taken a decision should be taken. Thereupon, the arbitrator clarified the point referred to him on 8th April 1961. In the clarification it is stated that he had, given the award after considering all the objections of the parties. He has further stated that he had distributed the arrears of rent among the parties, meaning thereby that he had given the decision on the point on which the clarification was sought.

5. It is not disputed by Mr. Ghani that the learned arbitrator had not taken into consideration any fresh evidence behind the back of the parties. He conceded that the learned arbitrator had clarified the point referred to him on the basis of the material which was already before him. In view of this concession it is difficult for us to hold that the arbitrator has in any way disregarded the directions issued to him by the order of the Court dated the 10th March 1961, or has to any way offended the principles of natural justice.

6. Mr. Ghani contended that after the award was remitted on the above‑mentioned point to the arbitrator under section 16 of the Arbitration Act, the appellant had a right to have afresh hearing on the points referred to the arbitrator. In support of his contention learned counsel relied on a decision of the English Court in The Queen v. The Recorder of Bolton ((1844)6 QBD 164 =14 LJ 75). At page 76 Lord Denman, C. J. observed that the arbitrator was in a position to hear the whole case again and was not entitled to refuse to hear further evidence. This case is distinguishable because in the present case the entire award was not remitted back. There was no intention of the parties to have a re‑hearing in the matter as the points referred to the arbitrator were only sent to him for clarification. He was asked to give his decision on that points referred to him if he had not given any. In the present case the arbitrator in his clarification has clearly stated that he had taken all the facts into consideration and had already given his decision in respect of the, Writers Building. It cannot, therefore, be said that in the present case the arbitrator was expected to give a re‑hearing on the points referred to him or to provide further opportunity to the parties to adduce additional evidence Had that been the intention of the parties it would have been expressed in the consent order, but since that was not the intention no such direction was issued to the arbitrator.

7. In Russel's "On Arbitration", 17th Ed. At 354 the learned author under the heading "Hearing of Fresh Evidence" has stated as under:‑-- "The duty of the arbitrator as to hearing fresh evidence must depend entirely upon the order remitting the matter to him. The Court has very wide powers, but, as already mentioned, those powers have hitherto only been exercised on certain defined principles and they apparently do not include power to remit any order that the arbitrator may re‑hear the full case submitted to him." In this connection the learned author has further stated as under: "It is the duty of the arbitrator to hear fresh evidence in the following cases‑ (a) where the arbitrator has omitted to decide some matter submitted to him; or (b) where fresh evidence has been discovered after the making of the award; or (c) where the arbitrator had, during the proceedings in the arbitration, refused to receive certain evidence which he ought to have received." It seems to us that in cases where the arbitrator is called upon only to clarify certain points and does not make any fresh decision it is not obligatory on him to give a fresh hearing to the parties and to afford them further opportunity to adduce additional evidence. We are fortified in this view by two English decisions and a decision of the Sind Judicial Commissioner's Court. In re: Mortis & Morris (119 E R 948) it was held that where an award is remitted back to the arbitrator only to set it right on the face of it, he is not bound to re‑hear the parties. Similarly in re Huntley (118 E R 631) it was held that where an award is referred back by the Court to the Arbitrator for the purpose of a specific alteration in or addition to it, he is not bound to hear further evidence on the general merits discovered and tendered after the making of the original award. In Stumal v. Khudadad (118 E R 631) it was held by a Division Bench of the Judicial Commissioner's Court that an arbitrator who has been directed by the Court to send the award after complying with specific orders of the Court cannot hear the evidence afresh and cannot make a fresh award. In these circumstances, we are satisfied that the grievance of the appellant in this behalf is not well founded and the contention of the appellant's counsel in this respect must be repelled.

8. Coming to the second objection of the appellant that the award of the arbitrator is vague in respect of the loan adjusted in the award or taxes paid by the respondents 1 to 3 out of the arrears of rent for 10 years of Writers Building, it is to be noticed that the apprehension of the appellant in this respect also is unfounded. Mr. Shah Jamil Alam, learned counsel for the respondents, categorically stated at the bar that apart from the loans mentioned in the award respondents 1 to 3 will claim no other amount as loan due in respect of the disputes referred to arbitration. He further referred us to paras. 6 and 14 of the award in which it is clearly stated that the income‑tax liabilities, if any, shall be personally paid by the parties separately. It is further stated in para. 14 of the award that "the plaintiff and the defendants shall pay up the Municipal taxes and other liabilities on the property in respect of the portion assigned to each separately." In view of these clauses, it is abundantly clear that the arbitrator has taken a definite decision on the question of the payment of taxes. He has directed that the parties are to pay the income tax liabilities separately. He has further directed that the parties will be liable to pay all the taxes in respect of the portions of the property which has been assigned to them. We, therefore, find no force in this contention and repel it.

9. In that view of the matter there is no force in the appeal which is dismissed with no order as to costs. K.B.A. Appeal dismissed.