P L D 1968 Lahore 847 (PLP)

An order‑ (i) superseding an arbitration ; (ii) on an award stated in the form of a special case; (iii) modifying or correcting an award; (iv) filing or refusing to file an arbitration agreement; (v) staying or refusing to stay legal proceedings where there is an arbitration agreement; (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. (2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court. According to the learned counsel for the appellant, the order of the learned Judge dismissing his application for revocation of the appointment of the first respondent as arbitrator is an order under sub‑clause (i) of section

39. According to the learned counsel the word "arbitration" in sub‑clause (i) includes all steps in arbitration and, therefore, includes an application for the removal of an arbitrator or the appointment of a new arbitrator. As the 'right of appeal is restricted to orders superseding an arbitration, the learned counsel submits that the words "superseding an arbitration" should be deemed or pre sumed to mean orders refusing to supersede an arbitration. Such a presumption is contrary to the provisions of section 39 and the object of section 39 is to prevent delay by restricting the right of appeal to the orders specified in the said section. Further, where the Legislature intended to give the right of appeal against orders of the trial Court allowing and refusing applications under the said Act, it has specifically provided for such appeals. For instance, under sub‑clause (iv) of sub section (1), both orders filing or refusing to file an arbitration agreement are appealable and similarly under sub‑clause (v) of 9 subsection (1), orders staying or refusing to stay legal proceedings are made appealable. As sub‑clause (i) of section 1 merely states "superseding an arbitration", I hold that this sub‑clause does not give a right of appeal against orders refusing to supersede an arbitration. I cannot also accept the contention of the learned counsel for the appellant that the word " arbitration" in the said sub‑clause includes the revocation and appointment of arbitrators. Provisions for revocation and appointment of arbitrators under the said Act are contained in sections 8, 10, 11 and 12 and section 25 specifies that when, in any one of the circumstances mentioned in the said sections, the Court does not think it desirable to fill up a vacancy and appoint an arbitrator, it may instead make an order superseding the arbitration. Therefore, this section has drawn a clear distinction between the removal of an arbitrator and the super session of the arbitration. The word "arbitration" has been used to mean the arbitration agreement as distinct from the removal of an arbitrator, which is only a stage in the arbitration proceedings. It is a well known principle in the interpretation of statutes that when a word has been given a certain meaning in a statute that word has to be given e the same meaning throughout the statute. Accordingly the word "arbitration" in sub‑clause (i) of section 39 must have the same meaning as in section 25 of the Arbitration Act and, therefore, the words "superseding an arbitration" do not mean or include an order revoking the appointment of an arbitrator. Therefore, no appeal lies against the impugned order. I am fortified in my opinion by a judgment of the Nagpur High Court reported in Bhaiyalal Ghuratia v. Sawai Singhai Pannalal and others (A I R 1944 Nag. 152). The facts of this case were that there was an agreement between the parties whereby dis putes had to be referred to arbitration. As disputes arose between the parties, an arbitrator was appointed and disputes were referred to him. Thereafter one of the aggrieved parties applied to the subordinate Judge under section 5 of the Arbitration Act to revoke the appointment of the arbitrator, which was allowed. But an appeal was filed in the District Court against the said order, and the Additional District Judge set aside the order of the subordinate Judge. An appeal was filed against the order of the Additional District Judge in the High Court, and Mr. Justice Bobde held that the order of the subordinate Judge revoking the appointment of the arbitrator was not appeal able under section 39 of the Arbitration Act, and the aggrieved party could file a revision against the order of the trial Court.

4. The learned counsel for the appellant also contends that the impugned order is appealable under the provisions of section 41 of the Act read with Article 4 of Schedule 2 of the Act. Section 41 states as follows :‑

41. Subject to the provisions of this Act and of rules made there under :‑ (a) the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court, and to all appeals, under this Act, and (b) the Court shall have, for the purposes of, and in relation to, arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court Provided that nothing in clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters. Article 4 of the Second Schedule of the Act is as follows :‑ Powers of the Court: "

4. Interim injunctions or the appointment of a receiver." Section 41 is stated to be subject to the other provisions of the Act and as the provisions for appeal are contained in section 39 of the Act, section 41 is subject to the provisions of section

39. Section 41 itself does not confer any power on a Court, but when a Court has seisin of a case under C the provisions of the Act, then section 41 confers on the Court the power to pass orders in respect of the matters specified in the Second Schedule. As I have held that section 39 bars the right of appeal against the order of a subordinate Court dismissing an application for revoking the appointment of an arbitrator, the provisions of section 41 are not attracted to the appeal at all.

5. The learned counsel has submitted that, if it be held that the impugned order is not appealable, his appeal should be treated as a revision under section 115 of the Civil Pro cedure Code. This is precisely what was held by the Nagpur High Court in Bhaiyalal Ghuratia's case. The appellant is therefore, entitled, to treat his appeal as a revision, and the question is whether a revision lies against the impugned order. The question whether the appointment of the first respondent as arbitrator should be cancelled or not was a question in the sole discretion of the learned Civil Judge, and a revision can be against his order only if in dismissing the application of the petitioners, the learned Judge failed t exercise the discretion vested in him under the Arbitration Act. The question, therefore, is whether the learned Judge has exercised his discretion judicially or not. The contentions of the petitioners were that the first respondent was not properly appointed under the arbitration agreement and that the first respondent had: committed misconduct. The learned counsel submits that the order of the learned Judge dismissing his application is not a judgment within the meaning of Order XX of the Civil Procedure Code. The order of the learned Judge states as. follows :‑-- "Lt.‑Col. Daud Khan has been appointed under 68 (para. 6 7) of the general conditions and contract. The learned counsel for the petitioner contends that the arbitrator has been hearing. at the back and has expressed bias. His appointment is in accordance with the rules. He is to complete his award by 21‑1‑1963. Under the circumstances I see no force in the petition. The arbitrator should continue with the proceedings. The petitioner can no doubt file his objections after the award has been filed." Under the provisions of the Arbitration Act, the learned Civil Judge has to consider and decide the application of the petitioners on merits. The learned Judge has held that the appointment of the first respondent as arbitrator was properly made under the arbitration agreement between the parties. Unfortunately, the learned Judge has not given any reasons for holding that the appointment was valid and the learned g counsel, therefore, rightly contends that the finding of the learned Judge is not a judgment within the meaning of Order XX of the Civil Procedure Code. Further, the petitioners had also moved the Court under section 11 of the Arbitra tion Act for the removal of the first respondent as arbitrator on serious allegations of misconduct. The question before me is not whether these allegations of misconduct are true or false, but whether the application of the petitioners has been rightly dismissed. The learned Judge could dismiss the application of the petitioners only if he came to the conclusion, after examination of the evidence, that the allegations of misconduct were false. Instead of examining and deciding allegations, the learned Judge has summarily dismissed the petitioners' application for the removal of the arbitrator on the sole ground that the petitioners were free to raise these objections when the respondents filed the award of the arbitrator (that is, the first respondent). The learned Judge appears to have thought either that the Court had no power to remove an arbitrator during the pendency of the arbitration, or that the Court should not exercise this power during the pendency of arbitration proceedings. In coming to this conclusion, the learned Judge has totally ignored the provisions of section 11 of the Arbitration Act, which specifically empower the Court to remove an arbitrator who has mis conducted himself during the pendency of the arbitration proceedings. Therefore, when the petitioners filed their application for the removal of the arbitrator and the appointment of another arbitrator, the learned Judge only had the discretion to decide whether the first respondent had committed misconduct or not, and the learned Judge could dismiss the petitioners' application only if he came to the conclusion that the allegations of the petitioners were not correct. Instead of doing so, the learned Judge has refused to bear the application and dismissed it summarily in violation of the provisions of section 11 of the Arbitration Act. The order of 21st December 1962, is therefore illegal and without jurisdiction and the revision petition of the applicants is allowed.

6. As the revision is allowed the petitioners are entitled to have their application for the removal of the arbitrator and the appointment of another arbitrator heard and decided in accordance with provisions of section 11 of the Arbitration Act. The record of the case should be returned forthwith to the trial Court so that there is no further delay in the proceedings. As the application of the petitioners was dismissed summarily by the Court, I make no order as to costs. A. E./K.B.A. Revision allowed. Case remanded.